1 in the united states district court northern district...
TRANSCRIPT
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
1
IN THE UNITED STATES DISTRICT COURTNORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
STUDENTS AND PARENTS FOR PRIVACY,voluntary unincorporatedassociation,
Plaintiff,
vs.
UNITED STATES DEPARTMENT OFEDUCATION, et al.,
Defendants.
))))))))))))
Docket No. 16 C 4945
Chicago, IllinoisJuly 13, 20169:30 o'clock a.m.
TRANSCRIPT OF PROCEEDINGS - MOTIONBEFORE THE HONORABLE JEFFREY T. GILBERT
APPEARANCES:
For the Plaintiffs: ALLIANCE DEFENSE FUNDBY: MR. JEREMY DAVID TEDESCO15100 North 90th StreetScottsdale, AZ 85260(480) 444-0020
THOMAS MORE SOCIETYBY: MS. JOCELYN FLOYD19 South LaSalle Street, Suite 603Chicago, IL 60603(312) 782-1680
Court Reporter: MS. CAROLYN R. COX, CSR, RPR, CRR, FCRROfficial Court Reporter219 S. Dearborn Street, Suite 2102Chicago, Illinois 60604(312) 435-5639
Case: 1:16-cv-04945 Document #: 90 Filed: 07/20/16 Page 1 of 21 PageID #:833
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
2
APPEARANCES CONTINUED:
For the Defendants: UNITED STATES DEPARTMENT OF JUSTICECIVIL DIVISION, FEDERAL PROGRAMS BRANCHBY: MS. SHEILA M. LIEBER20 Massachusetts Avenue, N.W.Room 7132Washington, DC 20530(202) 514-2000
FRANCZEK RADELET PCBY: MR. MICHAEL A. WARNER, JR.
MS. SALLY J. SCOTT300 South Wacker Drive, Suite 3400Chicago, IL 60606(312) 786-6118
For the Intervenors: MAYER BROWN LLPBY: MS. BRITT MARIE MILLER
MS. LINDA XUEMENG SHI71 South Wacker DriveChicago, IL 60606(312) 782-0600
ROGER BALDWIN FOUNDATION OF ACLU, INC.BY: MR. JOHN A. KNIGHT180 North Michigan Avenue, Suite 2300Chicago, IL 60601(312) 201-9740
Case: 1:16-cv-04945 Document #: 90 Filed: 07/20/16 Page 2 of 21 PageID #:834
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
3
(The following proceedings were had in open court:)
THE CLERK: 16 C 4945, Students and Parents for
Privacy, et al., v. The United States Department of Education,
for a status and motion hearing.
THE COURT: Okay. Good morning. Anybody who is
going to be speaking, do you want to come on up and identify
yourselves for the record and for the court reporter?
Hi, Carolyn.
THE COURT REPORTER: Hi, Judge.
THE COURT: Plaintiffs first.
MS. FLOYD: Jocelyn Floyd on behalf of the
plaintiffs, J-o-c-e-l-y-n, F-l-o-y-d.
MR. TEDESCO: Jeremy Tedesco for the plaintiffs.
THE COURT: Welcome to our fair city.
MR. TEDESCO: Thank you.
MS. LIEBER: Sheila Lieber for the federal
defendants.
THE COURT: Welcome.
MS. LIEBER: S-h-e-i-l-a, L-i-e-b-e-r.
It's my fair city too. I grew up here.
THE COURT: Oh, okay. I will go along with that.
MR. KNIGHT: John Knight and Britt Miller for the
intervener defendants.
MS. SCOTT: Sally Scott for defendant District 211.
MR. WARNER: Michael Warner for defendant
Case: 1:16-cv-04945 Document #: 90 Filed: 07/20/16 Page 3 of 21 PageID #:835
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
4
District 211.
THE COURT: Okay. Good morning to everybody here.
So I am just filling out my scorecard here.
So here's my agenda. I want to address the
plaintiff's motion for leave to file some requests to admit.
I read them. I read the intervener defendants' response to
that motion this morning. I didn't see it last night. I read
the cases cited. I've got some thoughts, but maybe I ought to
hear what the intervener defendant -- or what the plaintiffs
would say in response to your opposition, which you guys
probably read too, right?
MR. TEDESCO: Yes, your Honor.
THE COURT: That's really the only formal thing I
wanted to discuss -- wanted to deal with and rule on this
morning, if I could.
And then I had set this conference after you guys
filed the response briefs just to see if there was anything I
needed to deal with.
I don't really think I need to deal with anything,
but I am happy to talk with you about -- take off the robe,
sit down, and do it more like a Rule 16 conference, just talk
about what everybody sees the shape of the table as. I know
you guys have a reply left and you are working on that.
I will tell you what I am thinking about in terms
of -- I haven't digested all of the briefs, but I've skimmed
Case: 1:16-cv-04945 Document #: 90 Filed: 07/20/16 Page 4 of 21 PageID #:836
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
5
all, read some, and so I had a sense of where the issues are
joined. Okay?
But let's first deal with the motion for leave to
file the discovery. Mr. Tedesco or Ms. Floyd, where do you
come out on this?
MR. TEDESCO: Sure. Thank you, your Honor.
Just a couple things I guess to add in response to
their response brief. One is I just think it's remarkable
that the intervener defendants would voluntarily enter the
case, raise an issue of fact, ask for expedited discovery, get
that discovery granted on a particular issue, and then object
to us being able to do commensurate discovery on the same
issue.
In their pleadings, on the preliminary injunction
motion, they obviously relied on their discovery requests, and
I think it's appropriate for us to have commensurate
discovery. You know, at the last hearing, I know we talked
about tit for tat. It's certainly not -- pejoratively, we are
not, you know, pursuing this in that kind of pejorative sense.
But litigation is tit for tat. If an issue is raised and one
party gets discovery, the other party has to have an equal
opportunity to do discovery on the same issue.
I think I'd also just point out that their discovery
and their argument goes to, you know, a core issue in the
case, which is what does sex mean under Title IX. We have
Case: 1:16-cv-04945 Document #: 90 Filed: 07/20/16 Page 5 of 21 PageID #:837
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
6
presented the Court and will continue to do so the position
about sex being based on sex chromosomes which are then
reflected and anatomical differences and characteristics
unique to each sex, male and female, and the other side
disputes that. And we should have an opportunity to do
limited discovery to present the Court a full picture of that
now disputed issue because the intervener defendants entered
into the case and raised it.
THE COURT: Why don't you already have pretty much
what you want, as the intervener defendants say, with student
A's mother's declaration that student A was designated male at
birth and the DOE's statement in their findings that student A
was born male?
And you know what? What I don't have -- I read the
brief, but there is an ellipses. So could you get me the
declaration so I have it, the mom's declaration?
Why don't you essentially have enough to make the
argument you are making just with what's already in the
record?
MR. TEDESCO: Well, again, our position is that --
THE COURT: And since your first request to admit is,
Admit that student A's original birth certificate designated
student A's sex as male. So mom admits that, right?
MR. TEDESCO: I don't know that she's admitted that
in her declaration.
Case: 1:16-cv-04945 Document #: 90 Filed: 07/20/16 Page 6 of 21 PageID #:838
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
7
THE COURT: What does "designated male at birth" to
you mean in just like real English?
MR. TEDESCO: Well, I'm assuming it means that that's
what's indicated on his birth certificate.
THE COURT: Me too. So your first request to admit
is, Admit that student A's original birth certificate
designated student A's sex as male. Joe is going to get me
the affidavit, so I will see it directly, but --
MR. TEDESCO: Well, your Honor, their discovery
requests are providing the evidence that you have that he is
not female.
THE COURT: Yeah.
MR. TEDESCO: So they're disputing that he is male.
I just don't -- obviously, the amount of evidence we have is
not sufficient for this to not be a disputed fact in the case
even though it should be. Disputed facts arise in a case
through a lot of different reasons. While plaintiffs may not
think an issue is disputed, and I can continue to believe
that, the defendants have entered the case voluntarily and
raised the issue.
THE COURT: I get that.
MR. TEDESCO: And so I -- I'm sorry, your Honor.
THE COURT: No, go ahead. I interrupted you, and
that was rude.
MR. TEDESCO: Oh, no, not at all.
Case: 1:16-cv-04945 Document #: 90 Filed: 07/20/16 Page 7 of 21 PageID #:839
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
8
So I think under these circumstances, they asked
about whether we had any evidence that he is not female. They
asked whether he had any evidence related to his medical or
psychological records. We don't have those things. Now
they're citing that against us in briefing and saying it goes
to the issue of what does sex mean under Title IX.
We have a definition of sex that's longstanding and
accepted, has been -- always formed the basis of Title IX
for 40-plus years. They're coming to this court and saying,
no, sex means gender identity, and they're conflating those
terms and trying to convince the Court that gender identity
determines sex, not chromosomal and anatomical
characteristics, differences between the two sexes.
I think under the circumstances, we should have an
opportunity to limit the discovery. We're not doing this to
embarrass student A as they suggest. It's entirely in their
control whether we ask these questions, so the fact that
they're saying that we're doing this to embarrass him, they're
the one who raised his medical and psychological records as
relevant through their discovery requests.
Now, we're not asking for those right now, but as
this case persists, those probably will have to come into the
record because intervener defendants have raised them as
relevant to the core issue in the case, what does sex mean
under the statutory term in Title IX.
Case: 1:16-cv-04945 Document #: 90 Filed: 07/20/16 Page 8 of 21 PageID #:840
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
9
THE COURT: You know, I can actually find this
document because it's cited -- you can tell Joe I don't need
this because I can get it on the record.
I just wanted to see what the declaration was.
Okay. In the nature of this bifurcated proceeding,
as of now, I'm doing a report and recommendation to Judge
Alonso on -- on plaintiff's motion for a preliminary
injunction. So this is not a trial on the merits. This is
a -- you know, although we are spending a lot of paper on
this, and it merits a lot of paper, I am not saying it
doesn't, but this is a preliminary issue in the case, and
there are certain things I have to decide, but I am not trying
the case on the merits. I am not deciding the ultimate merits
of the case.
So for purposes of the preliminary injunction, why
can't I essentially presume, you know, the things that you are
saying in your request for admission? In other words, there's
evidence in the record that at least student A's mother, who,
because she is a minor, can speak for her for these purposes,
I suppose, she's designated male at birth, that's not really a
disputed issue in this case. The question between the parties
and where you kind of are ships passing in the night is what
does that mean really. Plaintiff's position is biological sex
is determinative of the entire case. Defendants' position is
a little bit more nuanced with respect to gender identity and
Case: 1:16-cv-04945 Document #: 90 Filed: 07/20/16 Page 9 of 21 PageID #:841
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
10
biology being, I think in the words of the expert that they
have proffered, gender identity has a strong biological basis,
but it also involves other things.
So, I mean, I get that that's being disputed here,
and I get that that's part of what I am going to have to
determine as to what that means here, but why can't I just
jump ahead of all of this and just say, you know, this is your
position and presume certain things about biology?
MR. TEDESCO: Because the intervener defendants have
raised it as a disputed fact and are going to present the
Court at the preliminary injunction stage evidence to prove
that he is actually female and not male.
So I am just -- I am concerned about one-sided
discovery on that topic, a topic that goes to one of the key
aspects of the case, both the APA claim and what does sex mean
and the Title IX comparable facilities and harassment claim.
THE COURT: So Mr. Knight or Ms. Miller, I didn't see
anything in your brief that was really disputing, you know,
that student A was assigned male sex at birth or even that --
and I am not asking to do anything you don't want to do on the
record, but I am just saying I didn't see anything in your
brief that was saying student A doesn't have male reproductive
organs and doesn't have male genitalia at this point in her
life.
Your opposition to this was more on whether it's
Case: 1:16-cv-04945 Document #: 90 Filed: 07/20/16 Page 10 of 21 PageID #:842
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
11
relevant or not and also whether under Rule 26 the Court
should prevent this discovery at this stage because it's
embarrassing, annoying, harassing, and really has no good
purpose. Am I interpreting your response correctly?
MR. KNIGHT: Well, right. Your Honor, we certainly
don't -- we're not admitting anything about the facts other
than what plaintiffs have said was essential to their claim,
which is that plaintiff -- that student A was designated male
at birth. And so we don't believe that plaintiffs have
made -- have explained in any way why this additional
information is relevant to their claim or relevant to
responding to our expert testimony, which is -- which isn't
based on those issues that they are asking about. It's based
solely on the fact that gender identity for a transgender
young person like student A determines her sex.
THE COURT: And from your point of view, it's not
determinative of student A's sex what kind of genitalia she
has, what type of reproductive organs she has. It's a more I
want to say all-encompassing or involves a lot of other
factors other than those particular factors, right?
MR. KNIGHT: Well, the key factor is gender identity,
and that is -- and, obviously, the question is broader than
this, which is what does the law say with respect to this, and
we think that the law does not limit itself to saying sex is
based on biology, whatever that means.
Case: 1:16-cv-04945 Document #: 90 Filed: 07/20/16 Page 11 of 21 PageID #:843
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
12
MS. MILLER: But your Honor has identified the exact
issue. The question -- what is in the record is the
declaration from student A's mother that she was assigned male
at birth. That is a factual question that is in the record
and answered by the material in the record. That's not where
the parties are at issue.
The parties are at issue as to what the law means
and, as a medical basis and the expert testimony we have
proffered in our declaration, what determines what is sex for
purposes of the law.
And so there is no need for this discovery, and your
Honor has in the record a statement from -- a signed sworn
declaration from student A's mother on the question of whether
or not student A was assigned male at birth. So no further
discovery is needed to join the issue of what does sex mean
for purposes of going forward.
THE COURT: Yeah. I mean, I don't want to go too far
down this road. My personal view and my professional view and
my judge view at this particular point in time is that this is
an unnecessary dispute to have at this point in time and that
the discovery that the plaintiffs are seeking or the requests
to admit which are hybrid from student A is not necessary at
this point in time, and it is -- falls within that box under
Rule 26 of where the judge is allowed to prevent
embarrassment, annoyance, suppression, whatever.
Case: 1:16-cv-04945 Document #: 90 Filed: 07/20/16 Page 12 of 21 PageID #:844
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
13
The magistrate judge in Nevada dealt with a similar
issue, and I will tell the defendants that even though -- I
know you prepared this very quickly, but the cite in your
brief is wrong. The F.R.D. cite in your brief that you cited
doesn't get you to that case.
MR. KNIGHT: I apologize, your Honor.
THE COURT: But that's cool because I have people who
can actually find it. And so the correct -- it's 312 F.R.D.
594 rather than 494.
MR. KNIGHT: That's my fault, your Honor.
THE COURT: Roberts v. Park.
MR. KNIGHT: Yes.
THE COURT: But I think that judge had it right in
terms of what is likely to cause embarrassment in terms of
these kinds of questions.
Now, if the case proceeds as it proceeds and you are
going on the merits, I am not making any ruling as to whether
or not this kind of discovery or questions in depositions
would be relevant. I am just -- the only thing I am looking
at is what do I need to rule on this motion for preliminary
injunction at this point and how far down the discovery road I
want to go.
I disagree with you, Mr. Tedesco, that discovery that
the plaintiffs are looking for here is the same kind of
discovery that the intervener defendants were granted leave to
Case: 1:16-cv-04945 Document #: 90 Filed: 07/20/16 Page 13 of 21 PageID #:845
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
14
have. Their discovery went to a basis for the plaintiff's
claims, so it essentially was, you know -- I mean, I have it
in front of me -- what have you investigated to make certain
allegations. And I read the responses to the extent they are
helpful. But request No. 1 was, Admit you have no factual
basis for disputing that student A is a girl, and you
objected, but you explained why. But that's what your basis
is for making a claim.
And the second one was, essentially, you have
conducted or have you conducted any medical or psychological
investigation. I don't think -- your objection to that when
they served it was not embarrassment, annoyance, whatever. It
was that it was unnecessary. And I disagreed. But I think
your discovery of student A is a little bit different going to
genitalia, reproductive organs, things like that, that if it
was necessary at the preliminary stage where we are at, the
preliminary injunction stage, then there is a balance as to
whether you need it versus the impact on the responding party.
I don't think on balance that you have met your
burden of showing I need these answers to requests to admit at
this juncture. I think it's in the record -- you've made
certain allegations in the verified complaint, I've got
plaintiff's -- student A's mother admitting, I think, for
purposes of the record, that she was designated as male on her
birth certificate, I've got the DOE making representations,
Case: 1:16-cv-04945 Document #: 90 Filed: 07/20/16 Page 14 of 21 PageID #:846
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
15
and there are certain things -- the Federal Rules of Evidence
are not going to as closely govern what happens at a
preliminary injunction phase as they do at the trial.
I understand plaintiff's position that biological sex
is sex, and I have read the cases, or some of them, and I
understand the position that that governs where the outcome
is, and I understand the defendants' position that gender
identity is sex, among other things. There are other
arguments they are making, and I am understanding some of the
nuances, so I am not trying in two sentences to summarize
everybody's position because I understand that there are other
arguments that you are making as to what sex means under the
statute and things like that.
But the big picture from the defendants' point of
view, gender identity is what is sex determinative. From your
view, biological assignments and organs and things like that,
more objective -- I shouldn't say "objective." I know there
are nuances here that I can't possibly capture. But suffice
it to say as I've thought about your discovery and where we
are in the case, it didn't seem to me that the importance of
that discovery outweighed the objections that student A is
making with respect to very personal things to her.
So I am going to deny your motion for leave to file
the discovery. Obviously, that's an appealable issue if you
want to go up to Judge Alonso on it. My view is that you have
Case: 1:16-cv-04945 Document #: 90 Filed: 07/20/16 Page 15 of 21 PageID #:847
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
16
enough to make the arguments that you need to make in order to
get your position across to the court and that this particular
discovery is not going to be outcome determinative.
After I put all of this through my own analysis and I
believe otherwise -- I could change my mind -- you know, it
would be totally unfair to you to say there's no admission in
the record with respect to reproductive organs or something
like that, and, therefore, plaintiffs can't prevail. You
know, if you get to that point at this preliminary stage, then
I would have to revisit my decision.
So I am not trying to be outcome determinative here.
I am just trying to deal with do you have enough information
to make the argument that you are making, do they have enough
information to make the arguments that they are making, do I
understand the arguments for purposes of a preliminary
injunction.
And so for all of these reasons, I am going to deny
your motion. This was a stream of consciousness ruling. I'm
sorry about that.
So then I would just -- we could just sit down.
Everybody -- when we -- I don't know that there's much more to
talk about really, or we could do it this way: I don't know
if there is much more to talk about in terms of discovery or
anything else. I mean, the reason I set this was because I
thought perhaps the briefs -- when I got the briefs from the
Case: 1:16-cv-04945 Document #: 90 Filed: 07/20/16 Page 16 of 21 PageID #:848
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
17
defendants, plaintiffs would then see what's going on. You
did, and filed your motion for this discovery, I denied it,
and my guess is that's the only discovery you felt you needed,
right?
MR. TEDESCO: Correct, your Honor.
THE COURT: Okay. And you guys don't need any more
discovery on the defense side, right?
MR. WARNER: Your Honor, not at this point. However,
much like we scheduled this status hearing today, you know,
part of -- as you know, the district previously sought
discovery, you denied discovery based upon -- in part on the
plaintiff's representations that they were not going to rely
on the details of what happened in Fremd High School locker
rooms and whatnot.
Assuming that remains the case in reply, I think
we're all set, but it may make sense to set another status
hearing just in case there's something in the reply brief that
we feel the need to respond to by way of discovery otherwise.
THE COURT: So let's do this. Because this one was
mostly unnecessary on that -- in that regard because plaintiff
read the stuff and filed a motion. I don't think, given time,
I want to set another status hearing. What I want to do
instead is if somebody has an issue, they should file a
motion.
MR. WARNER: Very good, your Honor.
Case: 1:16-cv-04945 Document #: 90 Filed: 07/20/16 Page 17 of 21 PageID #:849
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
18
THE COURT: Hold on for a second. And similarly, if
I have some questions as I digest what you are doing.
I will tell you right now, for example, that -- and I
am not going to ask you this now because I haven't gotten into
this enough, but when I was reading the various briefs, I had
some questions about whether there was a -- certain facts were
disputed or not. Okay? Because somebody says -- somebody,
for example, may say -- you know, plaintiff may say, this fact
is not disputed, see docket this. And then one of the three
defense briefs might say, this fact is not disputed, see
docket this. And those facts might at first blush look to me
to be disputed. Okay? Whether the facts are relevant or not
to my determination or not, whether I need to hear evidence on
that or not, I haven't really gotten to that point yet, but as
I read these things through, I may want some stuff. Okay?
But what I would say is if after you get plaintiff's
response, similar feelings percolate, you know, let me know in
writing. If you need to do it quickly to get -- I am not
going to rule the minute I get it. We have a hearing on
August 3rd, and I am not sure what the shape of that hearing
is yet. But if you see something, you know where to find me.
But I don't know that I want to have an unnecessary
status hearing where Mr. Tedesco and Ms. Lieber have to get up
early in the morning and fly in someplace to do that. So
that's really the way I would deal with that.
Case: 1:16-cv-04945 Document #: 90 Filed: 07/20/16 Page 18 of 21 PageID #:850
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
19
The other thing is August 3rd. Your brief is coming
in like the 28th, right?
MR. TEDESCO: 22nd, I believe, your Honor.
THE COURT: I have a question about whether I am
going to be fully ready on August 3rd.
If I wanted to move it to August 10th or maybe -- who
is unavailable that date?
MS. LIEBER: I may be available, but we have a
hearing on some similar issues down in Texas on the 8th, and
it's just a question of coming back and getting here. But I
probably could do it.
THE COURT: Yeah, Texas is still U.S.
MS. LIEBER: I know.
THE COURT: The airlines still --
MS. LIEBER: But Wichita Falls is not like a hub.
THE COURT: Anybody else?
MR. TEDESCO: I'm not available the 9th, 10th, and
11th of that week.
THE COURT: Who else?
MS. SCOTT: We're available, your Honor.
MS. MILLER: We are as well, your Honor.
MR. KNIGHT: I think we are as well.
THE COURT: Again, I may not need to change it.
Let's keep on this schedule. Because you're all
here, let's just -- I am planning on doing the 3rd. Okay?
Case: 1:16-cv-04945 Document #: 90 Filed: 07/20/16 Page 19 of 21 PageID #:851
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
20
Lots of stuff is coming in, lots of paper is coming in, so
there's a lot to get a hold of here.
If I needed some more time -- and I don't want to do
it on a day that Mr. Tedesco certainly is not available. I am
less concerned about getting here from Wichita Falls. You can
get here from Wichita Falls. I have done it in a prior life.
Except in February, and it's not February.
What about Monday the 15th? Who is not available
that day if I needed a rain delay date?
MS. SCOTT: We're fine, your Honor.
MR. KNIGHT: I think we're fine, your Honor.
THE COURT: I will try to give you some notice, but
let me think this through. I mean, I don't want to
shortchange myself or you.
Given that it's a report and recommendation, you're
delayed anyway because they are going to hold another round of
briefing in front of the district judge.
MS. MILLER: And, your Honor, if we go on the 15th,
what time would you like to see us?
THE COURT: It would be in the morning because I have
a settlement conference in the afternoon.
And so what I am envisioning, if we don't need
evidentiary presentations -- and I think if we do need
evidentiary presentations, I would have to talk to you
beforehand, obviously -- but I am envisioning the hearing as
Case: 1:16-cv-04945 Document #: 90 Filed: 07/20/16 Page 20 of 21 PageID #:852
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
21
being more oral argument, okay, making sure I understand
everybody's arguments, making sure that you've answered the
questions that I have based on the briefs. That's what I am
thinking about. I am not thinking about a full trial on the
merits and I am not thinking about a full evidentiary hearing
unless we need one. Okay?
I will try and let you know -- I am out of town next
week, as I said, but as I continue to think this through, I am
not just leaving this stuff to look at after I get the reply
briefs; I am reading the stuff now. And if I am starting to
think like I need more time, I will let you know and move it
to the 15th.
Any questions, comments, concerns?
Have a good flight back to wherever you are going,
and I will see you in a few weeks.
MR. KNIGHT: Thank you, your Honor.
MS. MILLER: Thank you, your Honor.
MR. TEDESCO: Thank you, your Honor.
(Which were all the proceedings had in the above-entitled
cause on the day and date aforesaid.)
I certify that the foregoing is a correct transcript fromthe record of proceedings in the above-entitled matter.
Carolyn R. Cox DateOfficial Court ReporterNorthern District of Illinois
/s/Carolyn R. Cox, CSR, RPR, CRR, FCRR
Case: 1:16-cv-04945 Document #: 90 Filed: 07/20/16 Page 21 of 21 PageID #:853