U-46 suit price tag more than $4.6 million in three years

Elgin Area School District U-46 has spent $4.6 million fighting a discrimination lawsuit over the past 3½ years.

That could be just the tip of the taxpayer-funded iceberg, legal experts say.

"That's a tremendous amount to spend this early in the case," said John Elson, a civil law professor at Northwestern University. "There's still a lot more to come."

Filed in February 2005, the lawsuit claims U-46 violated the rights of black and Hispanic students by placing them in crowded, older schools; busing them farther and more often than white students; and providing them inferior opportunities.

In a Feb. 7 memo, U-46 attorney Pat Broncato detailed the legal expenses billed by the district's two law firms from April 2004 through November.

Washington, D.C.-based Hogan & Hartson billed $2,819,368. Fees from Chicago-based Franczek Sullivan totaled $1,690,718.

Adding to defense costs are the services of Beatriz Arias, an Arizona State University professor who audited the district's bilingual program. The district says Arias was employed as a litigation consulting expert in the fall of 2004 and has remained in that capacity.

As of March 4, Arias' total consulting fees were $114,330, Broncato said.

With the total now pressing $5 million, the federal case still has a long way to go.

The district and the lawyers for the Elgin families suing the district are only partially through the discovery phase. This is when the two sides exchange evidence.

And while the discovery portion dealing with paper and electronic documents was supposed to end Nov. 30, the chapter was only formally closed this week with a judge's ruling.

The two parties now are in the process of taking depositions from a number of key "information custodians," or potential witnesses.

Magistrate Judge Michael T. Mason has not yet issued a deposition deadline.

Civil law permits 10 custodian depositions to be taken by each party. Each additional deposition must be cleared by the court.

Lawyers from Futterman & Howard, the law firm representing the Elgin families, have taken three depositions to date, attorney Carol Ashley said. The three all were involved with the district's handling of electronically stored information.

Ashley plans to take more than 30 more depositions, from school board members, district administrators and key staff members.

The district's lawyers already have said they oppose Ashley's plan to exceed the normal court limit.

That means a battle will ensue, and add to the total cost of the case.

Attorneys for the district so far have deposed 10 witnesses, said Patricia Whitten, with Franczek Sullivan.

"As of right now we don't intend to take any more," Whitten said.

Once the witness depositions are done, there will be depositions of each side's "experts" -- people identified by each side to have credentials and expertise in areas related to the lawsuit.

These depositions generally include travel, hotel and per diem costs, lawyers' fees and experts' fees.

Typically, expert depositions are the final phase of discovery.

A status hearing with Mason, set for March 20, likely will establish a timeline for the actions both sides need to take in the coming months.

"After setting deposition deadlines, the judge will have to set a date for summary judgment," said Mark Weber, a civil law professor at DePaul University.

During summary judgment, a judge can make a ruling based on evidence without going to trial.

Summary judgment can take four or more months, Weber said. If summary judgment is not granted, the case will proceed to trial.

Along the way, the topic of settlement will arise from time to time. All along, both sides have said -- more or less -- that they would be open to settlement talks. But those talks haven't happened since 2004, before the lawsuit was filed.

"Our approach is to always try and settle these cases," Ashley said. "You want to get remedies to the kids as soon as possible."

The extent of defense fees is important, says Northwestern's Elson, because they set "a sort of benchmark for settlement costs."

Some of those costs could include covering the plaintiff's attorney fees -- which in this case likely will exceed district expenses.

Settlement costs also could include implementing and then monitoring the remedies Ashley referred to, such as changes in district personnel and/or programs.

"In this particular case, they could be very steep," Elson said.

Legal fees so far

Here's how much Elgin Area School District U-46 says it has spent fighting a lawsuit charging discrimination.

Hogan & Hartson legal fees

2003-2004 $5,064

2004-2005 $358,020

2005-2006 $703,595

2006-2007 $968,855

2007-2008 $783,834

Total $2,819,368

Franczek Sullivan legal fees

2004-2005 $278,024

2005-2006 $296,675

2006-2007 $546,141

2007-2008 $558,878

Total $1,679,719

Dr. Beatriz Arias, consultant

2004-2008 $114,330

Cost to date $4,613,417

Source: Elgin Area School District U-46