Kleen Products LLC v. Packaging Corporation of America et al
Filing
449
MEMORANDUM Opinion and Order Signed by the Honorable Harry D. Leinenweber on 1/9/2013:Mailed notice(wp, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
KLEEN PRODUCTS LLC, et al.,
Plaintiffs,
Case No. 10 C 5711
v.
Hon. Harry D. Leinenweber
PACKAGING CORPORATION OF
AMERICA, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
Before
the
Court
are
Plaintiffs’
Objections
to
the
September 28, 2012 Memorandum Opinion and Order of the Magistrate
Judge [ECF No. 419] and Plaintiffs’ Motion to Compel Defendants to
Produce Documents
Plaintiffs
Plaintiffs’
[ECF
and
No.
Data for
345].
Objections
to
the
For
the
Time
the
Periods
reasons
Magistrate
Proposed
stated
Judge’s
by
herein,
Order
are
overruled and Judge Nolan’s protective order in regards to the
Sixth Interrogatory remains intact.
However, the Court finds the
Roles, Responsibilities and Expectations documents (the “RREs”) at
issue directly responsive to Request No. GP-1 in Plaintiff’s Second
Request for Production of Documents and orders their production in
regards to those 21 employees.
part and denied in part.
The Motion to Compel is granted in
I.
GENERAL BACKGROUND
The Court will not replicate the extensive and excellent
background of Magistrate Judge Nolan’s Order of September 28, 2012
[ECF No. 412].
Familiarity with it is presumed.
Suffice it to say
that Plaintiffs, purchasers of containerboard products, accuse
Defendants, producers of containerboard products, of collusively
manipulating the price of their products in violation of the
Sherman Act.
This case was recently assigned to this Court after having
been before Judge Milton Shadur and Judge George Marovich.
On
December 6, 2012, the parties appeared before this Court and
discussion
indicated
that,
in
order
to
make
progress
on
a
scheduling order, the parties needed rulings on the aforementioned
outstanding matters.
The Court indicated it would rule before the
next status hearing of February 19, 2012 to try to expedite the
setting of a scheduling order.
To review briefly the procedural history, Magistrate Judge Nan
Nolan had multiple meetings and hearings with the parties regarding
discovery matters and she heavily utilized The Sedona Conference
Cooperation Proclamation (10 Sedona Conf. J. 331 (2009)) in an
attempt
resolve
discovery
disputes
by
pugnacious contention and judicial fiat.
agreement
rather
than
She largely succeeded.
The September 28, 2012 order reflects the resolution, by agreement,
of numerous disputes.
However, some matters could not be resolved
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by agreement and Judge Nolan issued rulings on those matters.
Plaintiffs challenge two aspects of that ruling.
The first aspect
– Judge Nolan’s denial without prejudice of a motion to compel
Defendant Temple Inland to produce data from certain backup tapes
– is now moot, since Temple Inland has agreed to produce that data.
The second aspect involves Judge Nolan’s ruling [Dkt. No. 412]
granting Defendant Georgia-Pacific LLC’s Motion for a Protective
Order.
[Dkt. No. 372]
The Court set December 16, 2012 as the
deadline for Georgia-Pacific’s (“GP”) response to those objections
and that issue is now fully briefed.
Additionally, Judge Nolan
retired before she was able to issue a ruling on Plaintiffs’ Motion
to Compel [ECF No. 345] that dealt with the temporal scope of
discovery, and the Court takes up where Judge Nolan left off.
II.
OBJECTIONS TO THE MAGISTRATE JUDGE’S ORDER
A.
Plaintiffs
have
Background of the Order
long
requested
from
Defendant
GP
organizational charts and job descriptions. The very first item in
Plaintiff’s Second Request for Production (the “RFP”) of Documents
Directed to GP asked for “documents sufficient to identify (a) the
job title, (b) job descriptions, (c) contact information, and (d)
the specific duties for” 21 named current and former GP employees.
See Pls.’ Second Req. for Produc. Of Docs. Directed to [GP], 12,
ECF No. 372-4, PageID # 8535.
2011.
This request was made on October 25,
GP steadfastly insisted (and still insists) that, as a
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private company, it does not maintain organizational charts or job
descriptions because those things are “not consistent with our
culture.
The roles are defined on an individual basis, and each
individual’s responsibilities are defined on an individual basis.”
Dep. of George Ragsdale, 145, ECF No. 388-1, PageID # 9641.
On February 6, 2012, GP’s counsel responded in writing to the
RFP that GP “has searched and does not believe such formal written
job descriptions exist.”
ECF No. 388-1, PageID # 9683.
GP
maintains that the parties agreed at that time that this resolved
the RFP.
Plaintiffs maintain that they only agreed not to pursue
further documents because of the representation that they did not
exist.
With
no
written
descriptions
of
employees’
duties
or
responsibilities, Plaintiffs continued to press for some sort of
substitute. GP produced interrogatory answers describing positions
and duties of certain executives, but Plaintiffs pressed on. Using
the cooperative Sedona Conference model of discovery, Magistrate
Judge Nolan suggested that GP turn over (without waiving any claims
of privilege and without agreeing to an expansion of reasonable
discovery responses) a copy of its litigation hold list to assist
Plaintiffs in coming to their own understanding of GP’s structure.
GP voluntarily agreed to turn over the litigation hold list,
consisting of 400 names.
Exactly three days after receiving the
list, Plaintiff served a broad, Sixth Interrogatory on GP with
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respect to those 400 names, demanding job functions, identification
of the GP entity that employed each employee, the identity of
persons to whom each employee reported, and the identity of all
persons who reported to that individual.
withdraw
this
interrogatory;
Plaintiffs
GP asked Plaintiffs to
responded
that
the
interrogatory might become unnecessary depending on what they
learned in an upcoming 30(b)(6) deposition of GP employee George
Ragsdale (“Ragdale”).
Ragsdale was deposed on August 1, 2012.
In
that deposition, Ragsdale provided a bit more context for the
company’s
assertion
that
job
descriptions
do
not
exist.
Specifically, the following exchange occurred:
Q.
How were job positions described to individuals who
hold those jobs?
A.
That’s not an easy question to answer because it’s
going to change in the context of whatever the
demands of the business are. The role is defined so
that – to pick one, you know, Linda Brown is an
executive assistant. That’s her role as executive
assistant.
What her responsibilities are within
that role are defined between her and her
supervisor, Christian Fischer, and are defined –
formally they’re defined on an annual basis, but
they are subject to change at any time.
Q.
How are roles defined?
[Defendant’s Counsel]: Objection; asked and answered.
. . .
Q.
A.
Q.
A.
Well, you said her role is executive assistant.
Then despite – then her responsibilities are
separately defined, but how is it – is there any
other determination of what that role is?
Other than defining it as executive assistant?
Right. Other than giving it those two words?
No.
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Q.
A.
Q.
A.
And how is it determined – but the – or it’s
annually
determined,
you
said,
what
the
responsibilities of the role are?
Correct.
Is that memorialized in any way?
In most cases it is.
. . .
Q.
A.
Q.
A.
Okay. And do you retain the role description?
The role description is only the title, so –
Let me – the responsibilities, is there a name for
that document that describes the responsibilities?
If you’re asking if we retain it, it’s retained as
a living document between the boss and the
subordinate. Is it – it’s updated annually, or at
least it’s reviewed annually for update, and,
theoretically, once it’s updated, the old one goes
away.
. . .
Q.
A.
Q.
A.
Does that document have a name?
It has a name – I mean, I have a name for it. I
can’t tell you that it universally has a name in
every location within the company, no.
What’s the name you use for it?
I usually call it “Roles, Responsibilities and
Expectations.”
Dep. of George Ragsdale, 145-148, ECF No. 388-1, PageID # 9641-42.
Plaintiffs ended the deposition early, despite prompting from GP’s
attorney that Plaintiffs should be sure they had enough to satisfy
themselves as to the information sought in the Sixth Interrogatory.
Plaintiff’s counsel responded, “I believe . . . that I have
accomplished
what
plaintiffs,
at
interrogatory, need to accomplish.”
a
minimum
satisfy
that
GP’s Motion for Prot. Order
and Memo., 7, ECF No. 372, PageID # 8479.
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to
After
the
deposition,
Plaintiff’s
attorneys
searched
the
documents that had already been turned over to them and discovered
a number of “Roles, Responsibilities and Expectations” documents
(the “RREs”).
They set forth “responsibilities” for specific
employees such as “[r]esearch, develop, lead and implement short
and long term containerboard sales and technical service team
strategies.”
ECF 388-1, PageID # 9665.
They list “expectations”
like “compile and publish market data including North American
Containerboard Customer and Competitive Mill Profiles.”
Id.
One
employee’s RRE instructs him or her to “[p]rovide business leaders
with cost and revenue forecasts for the key drivers required to
implement
strategic
decisions
that
will
drive
improved
profitability in our business segment performance [e.g.,] Sales
price Tracking Reports.”
instructs
employee
to
“[e]xplore
use
Another RRE
of
demand/supply
elasticity, diffusion, available swing capacity.”
Id. at PageID
# 9667.
an
Id. at PageID # 9666.
Another sets a specific “regional volume plan” listing
specific numeric goals that the employee should achieve.
Id. at
PageID # 9668. Still another instructs a regional sales manager to
“[e]xecute price increase as market conditions permit.”
Id. at
PageID # 9676.
Plaintiffs refused to withdraw the Sixth Interrogatory.
GP
filed for a protective order, claiming the request (a) imposed
undue burdens, (b) exceeded interrogatory limits posed by the
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Federal Rules of Civil Procedure and (c) violated Plaintiff’s
express
commitment
not
to
organizational structure.
seek
further
discovery
about
GP’s
Plaintiffs said they would consider the
interrogatory answered if GP merely produced the RREs for all 400
employees on the litigation hold list, and that gathering those
documents would not be unduly burdensome.
They contended the
interrogatories were within numerical limits and that their pledge
to not seek further discovery on organizational structure was based
on GP’s incorrect representation that there were no written job
descriptions.
Judge
Nolan
granted
the
protective
order,
finding
that
Plaintiff abused the cooperative process the parties were pursuing
by immediately taking the voluntarily shared litigation hold list
and using it to expand upon their discovery requests.
“Such a
response could have a chilling effect on both litigants and courts
to engage in candid discussions,” wrote Judge Nolan.
Kleen et al.
v. Packaging Corp. of Am. et al., No. 10 C 5711, 2012 U.S. Dist.
LEXIS 139632, at *29 (N.D. Ill. Sept. 28, 2012).
She also ruled
that Plaintiffs had not addressed the Rule 26 proportionality
principle as required (since GP had submitted affidavits estimating
that answering the Sixth Interrogatory would take 800 hours to
accomplish).
The Court dismissed the offer to accept RREs as a
complete answer, in part, because she found the RREs were not a
“job description” but a performance review document.
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Citing case
law, Judge Nolan found job descriptions to be position-specific,
generic documents while RREs were “highly personal documents that
apply to a single employee at a particular point in time.”
Id. at
*34 (citing Hooper v. Total Sys. Servs., Inc., 799 F.Supp.2d 1350,
1362 (M.D. Ga. 2011) and Loeb v. Best Buy Co., Inc., No. 05-720,
2007 WL 2264729, at *1, *15 (D. Minn. Aug. 6, 2007)).
She ruled
Plaintiffs had not explained how the burden of producing these
documents were outweighed by the benefit, particularly when “much
of the information sought in the Sixth Interrogatory has already
been obtained.”
B.
Id. at *36.
Legal Standard for Assessing Plaintiffs’ Objections
Under Rule 72(a), this Court reviews a magistrate judge’s
ruling on non-dispositive matters under a “clearly erroneous”
standard of review.
FED. R. CIV . P. 72(a).
A finding is clearly
erroneous if the reviewing court, after duly acknowledging the
superior proximity of the factfinder to the witnesses, is firmly
convinced that the finding is erroneous.”
Sante Fe Pac. Corp. v.
Central States, S.E. & S.W. Areas Pension Fund, 22 F.3d 725, 727
(7th Cir. 1994).
C.
Analysis of Plaintiff’s Objections
Plaintiffs argue Judge Nolan erred in several respects:
(1)
she failed to address the argument that the RRE documents are
responsive to Plaintiffs’ Request for Production No. 3; (2) she
erred
in
concluding
that
the
RRE
- 9 -
documents
were
not
job
descriptions; (3) she erred in failing to credit Plaintiff’s
representations they would accept the RREs as fully satisfying the
Sixth Interrogatory; and (4) she erred in crediting GP’s testimony
that
the
retrieval
of
RREs
would
take
800
hours,
while
simultaneously accepting that the RREs are “living documents” being
constantly updated.
If the “living document” description is true,
Plaintiff argues, then each person on the litigation hold list
would have such documents at their fingertips, and a simple e-mail
to everyone on the litigation list could produce them effortlessly.
This Court can quickly dismiss the first objection.
Judge
Nolan never said the RREs were not responsive; she said the burden
of producing them outweighed their value under Rule 26. Similarly,
the third objection is easily dispatched.
Judge Nolan did credit
the Plaintiffs’ offer of compromise, even quoting verbatim that
“Plaintiffs would accept their Sixth Interrogatory as answered” if
all 400 employees’ RREs were produced.
Id. at *33.
As to the
fourth objection, this Court cannot say Judge Nolan was clearly
erroneous in crediting GP’s affidavit as to the 800 hours it
estimates retrieval would take.
Even if every employee had access
to their current RRE, there would doubtless be old versions that
exist and would have to be searched for and produced.
More than a
mere mass e-mailing would likely be needed. Given that Judge Nolan
met with the parties numerous times and understood the complexity
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involved in discovery in this large antitrust case, the Court
cannot say she was wrong in this finding.
However, the Court agrees with Plaintiffs that Judge Nolan
clearly
erred
descriptions.”
in
finding
that
these
RREs
are
not
“job
As demonstrated by the above quotations from RREs,
these documents, although they are written with specific employees
in mind, nonetheless describe those employees’ jobs.
To parse the
meaning of “job descriptions” in the way GP does is to encourage
every future litigant before this Court and others to hide the ball
in discovery based on the thinnest of distinctions of what a
document is called rather than what content it contains. The Court
notes it is not, at this juncture, accusing GP’s lawyers of
deliberately hiding this information from Plaintiffs.
It remains
possible that the attorneys were misled by their client, or more
likely (as is often the case in discovery in a case of this
magnitude) were unaware of these specific documents until after
representing they did not have them, possibly as late as Mr.
Ragsdale’s
deposition.
But
this
Court
cannot
agree
that
metaphysical distinctions are grounds for withholding documents in
discovery. To the contrary, the case law is replete that attorneys
and parties have a duty to make their responses “accurate and
complete.”
Johnson v. Cook County Bureau of Health Servs., 2010
U.S. Dist. LEXIS 22670, at *14 (N.D. Ill. March 11, 2010) (emphasis
added) (awarding sanctions for a defendant’s evasive answers based
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on prevarications and noting “[d]iscovery is not a game of hideand-seek.”).
Further, the Court does not find the cases cited by
the Magistrate Judge applicable.
cases
but
employment
Those cases were not discovery
discrimination
cases
discussing
“job
descriptions” in the context of whether positions were equivalent
as defined under specific statutes.
If anything, Hooper, an Equal
Pay Act case, stands for the proposition that a clearer picture
emerges of what an employee does by looking at that individual’s
actual responsibilities (akin to an RRE here) rather than a generic
“job description” (what GP insists it does not have).
Hooper, 799
F.Supp.2d at 1361-1362 (“Given that job titles and job descriptions
at [the company] were generic and meant to be used across business
units, the Court must focus on the actual job duties of the
employees.”) (internal citations omitted).
Actual job duties of
specific employees are what Plaintiffs were seeking here and,
indeed, their Second RFP requested not only “job descriptions” but
“the specific duties for” 21 named employees.
That request for
documents detailing “actual job duties” means that, even if GP’s
hyper-technical definition of “job descriptions” were correct,
Plaintiff’s request in its Second RFP for “specific job duties” of
21 employees still encompassed the RREs.
Again, this Court must emphasize that it does not, at this
juncture, accuse GP’s lawyers of hiding the ball.
In a case of
this scale, documents are not easy to discover, and sheer volume
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dictates that searches be selective.
In fact, the GP attorneys’
good faith was demonstrated by their willingness to share their
litigation hold list when they did not necessarily have to – at
least
not
without
a
fight.
(Although
the
Court
notes
its
disconcertion with Mr. Ragsdale’s evasive answers to Plaintiff’s
questions regarding the RREs.
question of
employee’s
whether
“role”
there
beyond
When Ragsdale answered “no” to the
was
her
any
other determination
two-word
title, it
was
at
of
an
best
technically correct (because GP uses the word “role” synonymously
with “title”) but inherently misleading.)
GP’s cooperation in turning over that litigation hold list is
among the reasons why this Court does not substantially modify
Judge Nolan’s order.
Her basic conclusion remains not clearly
erroneous: the wholesale turnover of RREs for all 400 employees on
that list, going back eight years, is overly burdensome when
Plaintiff has not demonstrated its benefit would outweigh the
costs.
Litigation hold lists are deliberately expansive, and not
everyone on the list is crucial to Plaintiff’s case.
So although Judge Nolan’s conclusion about job descriptions
not
equating
with
RREs
was
erroneous,
the
overly
burdensome
conclusion she reached remains correct, and the protective order in
regards to the Sixth Interrogatory remains undisturbed.
That said, the Court is sensitive to Plaintiff’s position that
cooperation by GP in one area does not mean that, when it is
- 13 -
discovered that GP possesses something it represented that it did
not have (either deliberately or through honest misunderstanding),
GP is no longer obligated to turn over those previously requested
documents.
Accordingly, the Court finds that, on the separate but related
issue of the Second RFP that sought documents reflecting specific
job duties of 21 named employees, the RREs of those 21 employees,
going back eight years, are directly responsive to Plaintiffs’
request and must be turned over.
These documents are relevant
because, in order to prove anticompetitive conspiracy, Plaintiffs
must first know which employees would be the ones engaged in
anticompetitive activities (e.g., knowing, via job descriptions,
which
employees
are
involved
in
pricing).
Additionally,
interrogatory responses that describe job duties may not be an
effective substitute for these RREs.
The RREs (created in candid
moments when litigation is a distant concern and focusing on the
nitty-gritty of what an employee actually does on a day-to-day
basis)
may
be
infinitely
more
revealing
than
a
sanitized
description of someone’s duties created by an attorney writing with
an eye toward winning the case for his client.
While 400 employees’ RREs are clearly excessive (thus leaving
Judge Nolan’s ultimate conclusion intact), 21 employees’ RREs (even
for the full 8-year period) will not be excessive.
Additionally,
it may be that in the course of further discovery, as Plaintiffs
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get a better sense of who the key GP players are, they may need to
see additional RREs, and the Court will be open to a limited
expansion beyond the 21 employees already requested.
But in light
of the cooperation shown by the parties already, the Court would be
highly distressed if Plaintiffs and GP cannot reach an agreement
between 21 and 400 that would allow Plaintiffs adequate insight
while still not being overly burdensome to GP.
D.
Conclusion Regarding Judge Nolan’s Protective Order
The objection to the magistrate judge’s order is overruled,
and the protective order in regards to the Sixth Interrogatory
remains intact.
However, the Court finds the RREs of the 21 named
employees directly responsive to Request No. GP-1 in Plaintiff’s
Second Request for Production of Documents Directed to Georgia
Pacific LLC (ECF No. 372-4) and orders their production.
III.
PLAINTIFFS’ MOTION TO COMPEL
Plaintiffs and Defendants disagree over which time periods are
relevant to the Complaint and should be the subject of discovery.
The issue of temporal scope [Pls.’ Mot. to Compel, ECF No. 345]
appears to be, in many respects, both related and subservient to
the issue of which computer backup tapes and data sources need be
searched and produced [Pls.’ Mot. to Compel, Dkt. No. 346].
This
is so because of the large costs associated with the restoration of
computer data backup tapes and because some Defendants argue much
of their older data is not kept in any form other than backup
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tapes.
Even if the Court were to order unlimited time frames in
every category, restrictions on computer data backup tape recovery
would likely have the side effect of limiting the temporal scope –
at least in certain instances. That it why the issues are related.
That the temporal scope issue is somewhat subservient to the data
source
issue
Defendant
is
demonstrated
Temple-Inland Inc.
by
the
authored
Defendants’
the
combined
briefing.
opposition
response while the other defendants submitted six supplemental
briefs to that combined response.
Each supplement dealt only with
the data source issue; not the temporal scope issue.
Because Judge Nolan has already given a tentative ruling on
the data source issue (she denied the motion to compel without
prejudice
because
it
was
premature
until
Plaintiffs
finish
reviewing documents already in their possession), and neither side
objects to that ruling, this Court must bifurcate the issues and
rule on the temporal scope issue.
To do so, the Court utilizes what is a convenient fiction:
that the two discovery topics are unrelated.
In other words, the
Court puts out of mind, for the moment, that the two are inherently
linked and the fact that limiting the data sources may also limit
the temporal scope the Court is about to set.
The Court also
assumes that any objections Defendants make to the temporal scope
must be justified separate and apart from the data source issues.
The Court does this because (1) the parties have already bifurcated
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the issues this way and (2) logistically, it will be easier to
address the data source issue in the future if the temporal issue
is resolved and no longer a moving target.
However, the Court
wishes to avoid any misconception that today’s temporal ruling
necessarily means that, should the Court later order some data
tapes produced, that automatically means tapes must be produced for
the entire temporal period set today.
information
presents
its
own
Electronically stored
discovery
challenges
and
considerations, as evidenced by its own subrule within Rule 26.
FED. R. CIV. P. 26(b)(2)(B).
This is also consistent with Judge
Nolan’s order on data sources, which anticipates that “if feasible
and cost efficient, sampling methods should be pursued” rather than
initial wholesale production. Kleen, 2012 U.S. Dist. LEXIS 139632,
at *57.
With that preliminary issue out of the way, the Court recounts
the dueling discovery proposals as framed by the parties:
1.
“Conduct” requests (documents relating to Defendants’
conduct):
Plaintiff seeks documents from January 1, 2002 through
December 31, 2010; Defendants seek to limit the range to January 1,
2004 through 12/31/2010.
2.
expert
“Data”
economic
requests
(Transactional
analysis):
Plaintiffs
and related
seek
data for
documents
from
January 1, 2000 through the present; Defendants seek to limit the
range to January 1, 2003 through December 31, 2010.
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3.
Inquiries, Investigations and Prior Litigation requests:
Plaintiffs seek documents from January 1, 1996 through December 31,
2010; Defendants seek to limit the range to January 1, 2004 through
December 31, 2010.
4.
Prior Antitrust Litigation requests:
Plaintiffs want no
time limits whatsoever; Defendants seek to limit the range to
January 1, 2004 through December 31, 2010.
A.
“Conduct” Requests
Defendants object that because Plaintiffs alleged in their
Complaint that the price-fixing began in 2005, “conduct” documents
going back to 2002 are irrelevant.
They also claim production
would be unduly burdensome.
The ground rules of discovery provide that “[t]he Court
construes relevancy broadly to encompass any matter that bears on
or that reasonably could lead to other matters that could bear on,
any issue[] that is or may be in the case.”
Osada v. Experian
Info. Solutions, No. 11 C 2856, 2012 U.S. Dist. LEXIS 179991, at
*25-26
(N.D.
Ill.
Dec.
20,
2012)
(internal
citations
and
punctuation omitted).
When a party objects to discovery, “[t]he burden rests on the
objecting party to show why a particular discovery request is
improper.” Id. (internal citations and punctuation omitted).
Additionally, Judge Nolan warned the parties in this case that “if
burdensomeness and cost is a real issue . . . you have to give
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specific[s].
I am very strict on burdensomeness.
If you are going
to allege burdensomeness, I need to know what that means.
Okay?”
Tr. of Proceedings, July 13, 2012, ECF No. 396-1, PageID # 10173.
The factors in considering an undue burden are:
relevance,
the need of the party for the documents, the breath of the
documents, the time period covered, the particularity of the
documents requested, the burden imposed and whether the party
subpoenaed
is
a
non-party.
WM
High
Yield
v.
O’Hanlon,
460
F.Supp.2d 891, 895 (S.D. Ind. 2006).
Defendants clearly have not met their burden in regards to
showing how they would be unduly burdened by the scope of the
temporal requests.
Although they did an excellent job giving
specifics (cost and time estimates) in regards to the burden of
certain data sources, they provided no specifics in regards to
temporal parameters – or at least they mentioned none in their
response brief.
Given Judge Nolan’s specific admonition to the
parties, this lack of specificity must weigh heavily against
Defendants.
That said, relevance must still be demonstrated.
Defendants
argue that conduct documents dating back to January 1, 2002 are
clearly irrelevant because Plaintiff’s Complaint alleges the pricefixing began in 2005.
Plaintiffs argue:
The conspiracy did not form at the beginning of the class
period, but beforehand.
Defendants’ conspiracy,
involving capacity reductions through mill and plant
shutdowns, required advanced planning and coordination.
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Thus, it is entirely plausible that the Defendants’
failed price increases before the class period were
actually part of the conspiracy. At the very least, they
provided the Defendants with the motivation to conspire.
Pls.’
Reply,
3,
ECF
No.
396.
The
Court
finds
persuasive
Defendants’ argument that Plaintiffs must be at least somewhat
constrained by the allegations in their Complaint.
The fact that
price increase attempts failed in 2003 and 2005 does not bode well
for the argument that evidence of a conspiracy can be found within
those time frames. However, given the lack of burden demonstrated
by Defendants, and the fact that the Complaint outlines SmurfitStone’s announcement in 2003 that it intended to reduce capacity
(Am. Compl. ¶ 65), the Court finds there very well may be relevance
in the stage-setting events of 2003-2005. However, Plaintiffs have
pointed to no events whatsoever that occurred in 2002.
Therefore,
Defendants must produce conduct documents only as far back as
January 1, 2003.
B.
“Data” Documents
Plaintiffs want transactional and related data for a period of
time before the class period to demonstrate the “before” and
“after” effect of the alleged conspiracy upon prices.
They argue
that the “before” period must be equal in time (five years) to the
conspiracy period (2005-2010).
They also cite cases allowing for
discovery after the class period.
“before” data is sufficient.
Defendants argue two years of
Plaintiffs cite cases where longer
periods of pre-conspiracy discovery have been allowed; Defendants
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cite cases where much shorter periods were all that was granted.
Given,
as
Judge
Nolan
noted,
that
courts
generally
take
an
expansive view of discovery in antitrust cases (Kleen, 2012 U.S.
Dist.
LEXIS
139632,
at
*40)
and
given
Defendants’
lack
of
demonstration of a burden, the Court grants Plaintiffs’ Motion to
Compel Production of Transactional Data from January 1, 2000
through the date of the filing of Plaintiff’s Motion, July 27,
2012.
The larger window of economic data (as opposed to conduct
documents) is warranted in order to provide an accurate economic
picture.
See Jays Foods, Inc. v. Frito-Lay, Inc., 614 F.Supp.
1073, 1078 (N.D. Ill. 1985) (criticizing Plaintiff’s predatory
price study for “meager” data on prices and costs); see also New
Park Entertainment LLC v. Electric Factory Concerts, Inc., No.
Civ. A. 98-775, 2000 WL 62315 at *2-3 (allowing discovery for seven
years prior to alleged conspiracy); see also Caldwell-Clements,
Inc. v. McGraw-Hill Pub. Co., 12 F.R.D. 531, 536 (S.D.N.Y. 1952)
(granting
discovery
period
of
25
years
prior
to
Plaintiff’s
existence).
C.
“Prior Antitrust Litigation” documents
The Court takes this fourth item out of order because it
appears related to the request for documents related to the third
item, “prior inquiries, investigations, and litigation concerning
antitrust-related activities” from January 1, 1996 to December 31,
2010.
In fact, the Court is unable to distinguish a difference
- 21 -
between “prior antitrust litigation” and “prior . . . litigation
concerning antitrust-related activities.”
Nor can the Court gain
enlightenment on the distinction by reading the First Request for
Production of Documents Directed to All Defendants (the “First
RPD”) because neither party attached that document to their briefs,
as far as the Court can tell.
The Court also takes this item out of order because it finds
Plaintiffs’ request for an unlimited time frame patently absurd.
Plaintiffs cite adequate case law for the proposition that prior
antitrust litigation can be relevant and therefore discoverable,
but it cites no case law for the proposition that such relevance
extends backward to the dawn of time.
discovery
of
only
that
litigation
True, Plaintiffs seek
mentioned
in
its
Amended
Complaint, but that would include litigation approximately 80 years
old.
As noted in WM High Yield, supra, the time period of the
request is decidedly a factor in whether a request is unduly
burdensome.
Having set no temporal parameter, Plaintiff’s request
is unduly burdensome and is denied.
D. “Inquiries, Investigations and
Prior Litigation Requests”
As to the related request for documents related to inquiries,
investigations
activities,
and
prior
Plaintiffs
January 1, 1996.
seek
litigation
a
more
concerning
reasonable
start
antitrust
date
of
Defendants argue that United States v. Andreas
dictates that prior conspiracies must involve related products and
- 22 -
occur during overlapping periods.
United States v. Andreas, 216
F.3d 645, 665 (7th Cir. 2000).
The Court notes that Andreas
regarded admissibility in a criminal case, not discoverability in
a civil case.
Id.
Many things are discoverable that may not be
admissible, (ARTRA 524(g) Asbestos Trust v. Transp. Ins. Co.,
No. 09 C 458, 2011 U.S. Dist. LEXIS 110272, at *38 (N.D. Ill.
Sept. 28, 2011)) so it is doubtful the strictures set in Andreas
apply to discovery.
Moreover, the Court agrees with Plaintiffs
that the products clearly overlap, and at least within the 1996
parameter, some employees may overlap as well.
Therefore, the
request seems reasonably calculated to lead to the discovery of
admissible evidence, and its production is ordered, particularly in
light of Defendants’ lack of specificity as to why the time frame
might be overly burdensome.
IV.
CONCLUSION
For the reasons stated herein, the Court rules as follows:
1.
Plaintiffs’ Objection to the Magistrate Judge’s Order is
overruled and Judge Nolan’s protective order that found overly
burdensome the request for the RREs of all 400 employees remains
intact.
2.
However, on a related matter, because the RREs are
directly responsive to Plaintiffs’ Second Request for Production
that sought documents reflecting specific job duties of 21 named
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employees, Georgia Pacific is ordered to turn over RREs as to those
employees.
3.
Plaintiffs’ Motion to Compel production of “Conduct”
Documents is granted in part and denied in part.
The Court orders
the production of such documents, but only within the time frame of
January 1, 2003 through December 31, 2010.
4.
Plaintiffs’
Motion
to
Compel
production
of
“Data”
requests is granted in its entirety for the period of January 1,
2000 through July 27, 2012.
5.
relating
Plaintiffs’ Motion to Compel production of documents
to
“Inquiries,
Investigations
and
Prior
Litigation
Requests” from January 1, 1996 through December 31, 2010 is granted
in its entirety.
6.
Plaintiffs’ Motion to Compel production of documents
regarding prior antitrust litigation, unlimited in temporal scope,
is denied.
IT IS SO ORDERED.
Harry D. Leinenweber, Judge
United States District Court
DATE:1/9/2013
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