Hannah's Boutique, Inc. et al v. Surdej

Filing 151

MEMORANDUM Opinion and Order Signed by the Honorable Amy J. St. Eve on 3/25/2014:Mailed notice(kef, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
HANNAH’S BOUTIQUE, an Illinois
corporation,
Plaintiff,
v.
BARBARA ANN SURDEJ, ROY SURDEJ and
JEFFREY SURDEJ d/b/a PEACHES
BOUTIQUE and AGNIESZKA BIALAS,
Defendants.

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No. 13-cv-2564

MEMORANDUM OPINION AND ORDER
AMY J. ST. EVE, District Court Judge:
In October 2013, the parties came before the Court with differing proposals for the scope
of discovery. (See R. 99, Joint Discovery Plan.) Defendants sought to limit the initial phase of
discovery to the issue of market power and to set restrictions on third-party discovery and the
number of depositions for each side. (Id. at 2-5.) Plaintiff, on the other hand, proposed that the
parties conduct discovery on all issues simultaneously. (Id. at 6-7.) The Court ultimately
adopted a middle-ground discovery plan that prioritized discovery on market power and allowed
Defendants to move for summary judgment on the issue of market power at an early stage in the
discovery process, but rejected Defendants’ proposed limitations on the scope of third-party
discovery and the number of depositions. (See R. 101.)
Since the Court’s ruling, the parties have continued to argue over discovery. On
December 30, 2013, Plaintiff filed a motion to compel Defendants to provide further responses to
its discovery requests, which the Court granted in part and denied in part on January 29, 2014.
Recently, the parties filed several additional discovery motions. Currently before the Court are

(1) Plaintiff’s motion for issuance of a rule to show cause and to bar Defendants from raising
certain defenses or presenting certain evidence due to Defendants’ failure to comply with the
Court’s order on Plaintiff’s earlier motion to compel (see R. 123); (2) Plaintiff’s motion to strike
or remove Defendants’ designation of documents as “Confidential” and “Attorney’s Eyes Only”
under the Agreed Confidentiality Order (see R. 125); and (3) Defendants’ motion to compel
Plaintiff to produce documents in response to Defendants’ non-market power discovery requests
(see R. 130).1 For the following reasons, the Court grants in part and denies in part Plaintiff’s
motions, and denies Defendants’ motion as moot in light of Plaintiff’s agreement to produce the
requested documents within twenty-one days.
LEGAL STANDARD
The Federal Rules of Civil Procedure allow liberal discovery to assist in preparation for
trial and settlement of disputes. See Bond v. Uteras, 585 F.3d 1061, 1075 (7th Cir. 2009).
Federal Rule of Civil Procedure 26(b)(1) provides that “[p]arties may obtain discovery regarding
any non-privileged matter that is relevant to any party’s claim or defense. Relevant information
need not be admissible at the trial if the discovery appears reasonably calculated to lead to the
discovery of admissible evidence.” Fed. R. Civ. P. 26(b)(1). “The burden rests upon the
objecting party to show why a particular discovery request is improper.” Kodish v. Oakbrook
Terrace Fire Prot. Dist., 235 F.R.D. 447, 450 (N.D. Ill. 2006). This burden “is not satisfied by a
‘reflexive invocation of the same baseless, often abused litany that the requested discovery is
vague, ambiguous, overly broad, unduly burdensome, or that it is neither relevant nor reasonably

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The parties also have filed two other discovery motions, which the Court does not address in this
Opinion: (1) Plaintiff’s motion to compel the production of Peaches Boutique’s financial and ownership
documents and to extend the discovery deadlines (R. 127); and (2) Defendants’ motion to amend the
Agreed Confidentiality Order (R. 146). The parties should be prepared to address those motions orally at
the status hearing on March 26, 2014, including what, if any, dispute remains regarding the production
Peaches Boutique’s financial and ownership documents.

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calculated to lead to the discovery of admissible evidence.’” Osada v. Experian Info. Solutions,
Inc., 290 F.R.D. 485, 494 (N.D. Ill. 2012) (citation omitted).
As with all discovery motions, district courts have broad discretion in deciding motions
to compel. See James v. Hyatt Regency Chicago, 707 F.3d 776, 784 (7th Cir. 2013). A district
court may grant or deny a motion to compel in whole or in part and, “similar to ruling on a
request for a protective order under Rule 26(c), the district court may fashion a ruling appropriate
for the circumstances of the case.” Gile v. United Air Lines, Inc., 95 F.3d 492, 496 (7th Cir.
1996). District courts also have broad discretion in deciding “whether and how to sanction
[discovery] misconduct, for they are much closer to the management of the case and the host of
intangible and equitable factors that may be relevant in exercising such discretion.” Hunt v.
DaVita, Inc., 680 F.3d 775, 780 (7th Cir. 2012).
ANALYSIS
I.

Plaintiff’s Motion for Issuance of a Rule to Show Cause and to Bar Defenses and
Evidence
A.

Background

Plaintiff’s motion for issuance of a rule to show cause and to bar defenses and evidence
concerns Defendants’ failure to comply with the Court’s ruling on Plaintiff’s previous motion to
compel further responses to its interrogatories. Specifically, Plaintiff argues that Defendants’
supplemental response to Interrogatory No. 14 of Plaintiff’s First Set of Interrogatories to
Defendant Surdej is deficient.2 (See R. 123, Pl. Mot. for Rule to Show Cause ¶¶ 9-13.)
Interrogatory No. 14 requested Defendants to

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Plaintiff’s motion for issuance of a rule to show cause and to bar defenses and evidence specifically
addresses Roy Surdej’s interrogatory response. Because Interrogatory No. 14 to Roy Surdej mirrors
Interrogatory No. 4 issued to the other Defendants and the other Defendants incorporated Roy Surdej’s
response to Interrogatory No. 14 into their own interrogatory response, however, the Court refers to
Defendants collectively in its discussion of Plaintiff’s motion.

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[i]dentify any and all contracts and/or agreements between Defendants and/or Peaches’
Employees and any of the Designers and/or their Independent Sales Representatives
regarding Peaches’ exclusive right to sell Women’s Fashion Dresses anywhere within the
Chicago Market, including the date of the agreement, the terms of the agreement, the
geographic scope or area of the agreement, and the length of the agreement.
(See Pl. Mot. for Rule to Show Cause at Ex. C, Roy Surdej’s Second Supp. Interrog. Resp., at
14.) Defendants’ initial response to Interrogatory No. 14 stated, in relevant part:
[T]o provide uniqueness for its product mix and to maintain its ability to offer its
customers reasonable confidence that someone else at the event that customer is
attending will not be wearing the same dress, it is not uncommon for Peaches to
request that a Designer from which it purchases special occasion dresses elect
whether to sell to Peaches or another retailer on a going-forward basis. There is
no set geographical area for such requests, which are determined on a case-bycase basis, and varies [sic] on a number of factors including, inter alia, the time
period, the Designer, and the volume of dresses that Peaches purchases from the
Designer.
(See R. 111-2, Roy Surdej’s Initial Interrog. Resp. at 13-14.)
On January 29, 2014, the Court ordered Defendants to supplement their response to
Interrogatory No. 14 in two respects. First, the Court ordered that if, as Defendants’ counsel
represented in court, no contracts or written agreements with designers or independent sales
representatives reflecting Peaches’ exclusive right to sell their dresses exist, Defendants should
state that in their response to Interrogatory No. 14 and swear to and verify their responses. (See
R. 122, Jan. 29, 2014 Hrg. Tr. at 12-13.) Second, the Court ordered Defendants to identify any
oral agreements of which they are aware and provide the requested information about the
agreements—“the who, when, terms, et cetera”—to the extent they could recall those details.
(Id. at 14-15.) The Court ordered Defendants to supplement their interrogatory responses in
accordance with the Court’s ruling by February 12, 2014. (Id. at 31.)

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B.

Analysis
1.

Defendants Failed to Comply with Their Discovery Obligations and
the Court’s Order

On February 21, 2014, after Plaintiff agreed to extend the due date for the supplemental
responses, Defendants supplemented their response to Interrogatory No. 14, among others. (See
Roy Surdej’s Second Supp. Interrog. Resp. at 14-16.) Consistent with the Court’s order,
Defendants stated that “Peaches has never entered into a written agreement with any Designer
and/or Independent Sales Representative regarding Peaches’ exclusive right to sell Women’s
Fashion Dresses in the Chicago Market.” (Id. at 15-16.) Defendants, however, did not verify
their interrogatory responses, as Rule 33(b) requires and as the Court ordered. Nor did they fully
comply with the Court’s order regarding identification of Peaches’ oral agreements. Defendants’
supplemental response to Interrogatory No. 14 is evasive regarding with whom Peaches had such
agreements and, with one exception,3 fails to provide the details that the Court unequivocally
ordered Defendants to supply about each agreement.
To begin, rather than identify all designers and independent sales representatives with
whom Peaches entered oral agreements regarding Peaches’ exclusive right to sell their dresses,
Defendants state that “Peaches made such requests to most of the Designers for at least some
lines for at least certain areas within the Chicago Market” and then include a list of examples of
designers with whom it had such agreements. (Id. at 15.) Defendants’ response-by-example is
evasive and incomplete. In accordance with their discovery obligations, Defendants must

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Defendants provide some of the requested details for Peaches’ exclusive-dealing agreement with one
designer, Mori Lee. (Roy Surdej’s Second Supp. Interrog. Resp. at 16.) Defendants state that “due to the
high volume of the units Peaches ordered from Mori Lee . . . . Mori Lee elected to sell exclusively to
Peaches in area [sic] roughly bordered by Interstate 88, Interstate 355, Interstate 80, and Lake Michigan.”
(Id.) Although Defendants identify the geographic scope of Peaches’ agreement with Mori Lee, their
response is still incomplete; Defendants also must identify the date, length, and terms of Peaches’
agreement with Mori Lee, as Interrogatory No. 14 requests.

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provide a complete list—not just examples—of designers and independent sales representatives
with whom Peaches had exclusive-dealing agreements, to the extent they recall such agreements.
See Fed. R. Civ. P. 33(b)(3) (“Each interrogatory must, to the extent it is not objected to, be
answered separately and fully in writing under oath.” (emphasis added)). If the designers listed
in Defendants’ supplemental response are the only ones with whom they recall Peaches entering
exclusive-dealing agreements, they must state so in their response.
Defendants’ description of Peaches’ exclusive-dealing agreements is even more evasive
than their identification of the designers with whom Peaches had such agreements. Defendants
acknowledge that, beginning in mid-2000, Peaches requested some form of exclusive-dealing
arrangement, on a “case-by-case” basis, with “most Designers for at least some lines for at least
certain areas within the Chicago Market.” (Roy Surdej’s Second Supp. Interrog. Resp. at 15-16.)
Rather than identify the time frame, geographic scope, dress line, and other terms of Peaches’
agreement with each designer, however, Defendants provide only general information about the
factors that typically influence those agreements. Defendants state, for example, that “[t]he
scope of Peaches’ request varies by Designer and by the location of the other retailer(s),” and
“the request typically does not encompass retailers with which a Designer already has an existing
relationship.” (Id. at 15.) Additionally, Defendants indicate that Peaches’ requests generally
depend on the number of dresses Peaches orders from a designer. (Id.)
This response is evasive and incomplete; providing generalized information about
agreements with designers as a whole when those agreements admittedly vary on a “case-bycase” basis depending on a number of factors effectively provides no information at all about the
individual agreements. See Fed. R. Civ. P. 37(a)(4) (“[A]n evasive or incomplete disclosure,
answer, or response must be treated as a failure to disclose, answer, or respond.”); see also, e.g.,

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Watkins v. Nielsen, 405 Fed. App’x 42, 43-44 (7th Cir. 2010) (discovery responses that provided
general information only and omitted requested details were non-responsive); Ashley v. Lake
County, No. 2:06-cv-360, 2008 WL 2954975, at *3 (N.D. Ind. July 29, 2008) (defendant’s failure
to provide the “full scope of the information requested” violated its discovery obligations).
Defendants must provide the requested details—“the date of the agreement, the terms of the
agreement, the geographic scope or area of the agreement, and the length of the agreement”—for
each exclusive-dealing agreement on an individual basis, to the extent they can recall those
details. If Defendants do not recall some or all requested details for particular agreements, they
must state that in their response, specifying the information they cannot recall for each particular
agreement, and then certify their response.
Defendants raise several arguments regarding why their response to Interrogatory No. 14
is sufficient, none of which are availing. First, Defendants claim that their supplemental
response includes “any additional information they could recall.” (See R. 136, Defs. Resp. to
Mot. for Rule to Show Cause at 1.) If that is the case, though, Defendants must specifically and
clearly state that in their response. Defendants cannot avoid acknowledging their inability to
recall the details of their individual agreements with designers by casting their response in
general terms. Furthermore, Defendants’ representation that they cannot recall any additional
details about the oral agreements at issue is suspect. Cf. Martin v. Bureau of Collection
Recovery, No. 10 C 7725, 2011 WL 2311869, at *4 (N.D. Ill. June 13, 2011) (St. Eve, J.) (“If
defendant does not have documents or other information which substantiates [its] defense, it is
difficult to fathom why it interposed that defense in the first place.” (citation omitted)). It is
difficult to believe that out of the ten designers with whom Defendants recall Peaches having
exclusive-dealing agreements, Defendants cannot recall any details regarding those agreements,

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with one exception, especially given that Defendants admittedly contacted designers and
reminded them of their decision to sell exclusively to Peaches “on approximately 10-12
occasions.” (See Roy Surdej Second Supp. Interrog. Resp. at 16.) Defendants, at a minimum,
must have recalled at least some terms of Peaches’ agreements with those designers when it
contacted them to enforce the agreements.
Second, Defendants argue that Plaintiff can explore Defendants’ response to
Interrogatory No. 14 in greater detail through depositions and additional discovery. While this
argument may bear on whether Plaintiff has suffered any prejudice from Defendants’ discovery
violations, it does not excuse Defendants from complying with their obligation to provide
complete, non-evasive responses to Plaintiff’s interrogatories in the first place. Nor does
Defendants’ argument that “the resources of the parties and the Court would be better served if
Plaintiff would review the voluminous information that Defendants have provided over the past
three months . . . and then proceed with depositions so that the Court can resolve the issue of
market power” help their cause. (Defs. Resp. to Mot. for Rule to Show Cause at 3.) In this case,
Defendants—not Plaintiff—are holding up discovery and consuming judicial resources by failing
to provide a straight-forward response to a straight-forward interrogatory in violation of their
discovery obligations and the Court’s January 29, 2014 order.
Finally, Defendants suggest that the Court based its January 29, 2014 order on
incomplete information. (Id. at 2-3.) Specifically, Defendants argue that Plaintiff had not
provided the Court with Defendants’ full initial response to Interrogatory No. 14, which
purportedly contained “substantial information” about Peaches’ exclusive-dealing agreements
with designers. (Id.) The Court finds it surprising and telling that Defendants seek to blame
their discovery violations on the Court’s purported failure to consider Defendants’ full response

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to Interrogatory No. 14. The Court assures Defendants that it reviewed Mr. Surdej’s response to
Interrogatory No. 14, which Plaintiff attached as an exhibit to its previous motion to compel, in
full before ruling on Plaintiff’s motion to compel, and contrary to Defendants’ argument, the
Court found that Defendants’ initial response lacked “substantial information” regarding
Peaches’ exclusive-dealing agreements with designers. The only information Defendants
provided about Peaches’ requests for designers to sell exclusively to Peaches is that “[t]here is no
set geographical area for such requests, which are determined on a case-by-case basis, and varies
[sic] on a number of factors including, inter alia, the time period, the Designer, and the volume
of dresses that Peaches purchases from the Designer.” (See Roy Surdej’s Initial Interrog. Resp.
at 14.) As explained above, responding to Interrogatory No. 14 by stating only that Peaches’
individual agreements with designers varied on a case-by-case basis depending on a number of
factors is evasive and incomplete. Moreover, even if Plaintiff had failed to provide the Court
with complete information in its previous motion to compel—which it did not—that does not
give Defendants license to disregard or re-write the Court’s order as they see fit; rather,
Defendants should have raised the issue with the Court during the approximately 40-minute
status hearing on Plaintiff’s motion to compel or during one of the two subsequent status
hearings on February 5, 2014 and March 3, 2014.
2.

Appropriate Sanctions for Defendants’ Discovery Violations

Having found that Defendants’ supplemental response to Interrogatory No. 14 violates
Rule 33 and the Court’s January 29, 2014 order, the Court must determine an appropriate
sanction to impose, if any. Rule 37 authorizes the Court to impose a variety of sanctions,
including prohibiting Defendants from presenting certain defenses, precluding them from
introducing evidence on the matters at issue, striking their pleadings in whole or in part, staying

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the proceedings until they comply with the Court’s order, rendering a default judgment against
them, or treating their failure to comply with the Court’s previous order as contempt. See Fed.
R. Civ. P. 37(b)(2)(a), (d)(3). Moreover, instead of or in addition to these sanctions, the Court
must require Defendants, their attorneys, or both to pay the reasonable expenses, including
attorney’s fees, caused by their failure to provide a complete, non-evasive response to
Interrogatory No. 14 “unless the failure was substantially justified or other circumstances make
an award of expenses unjust.” Fed. R. Civ. P. 37(d)(3).
The sanction the Court imposes must be “proportionate to the circumstances surrounding
[Defendants’] failure to comply with discovery rules.” Rice v. City of Chicago, 333 F.3d 780,
784 (7th Cir. 2003) (quoting Melendez v. Illinois Bell Tel. Co., 79 F.3d 661, 672 (7th Cir. 1996)).
Among the factors the Court should consider in its analysis of which sanctions to impose are “the
frequency and magnitude of [Defendants’] failure to comply with court deadlines, the effect of
these failures on the court’s time and schedules, the prejudice to other litigants,” and the possible
merits of the plaintiff’s suit or, in this case, Defendants’ defenses. Id. (quoting Williams v.
Chicago Bd. of Edu., 155 F.3d 853, 857 (7th Cir. 1998)).
Plaintiff argues that, as a sanction for Defendants’ discovery violations, the Court should
bar Defendants from raising any oral exclusive-dealing agreements or arrangements as a defense
or legal justification for their conduct, preclude Defendants from introducing any evidence of
exclusive-dealing agreements or arrangements, and issue a rule to show cause as to why the
Court should not hold Defendants in contempt for failing to comply with the Court’s January 29,
2014 oral ruling on Plaintiff’s previous motion to compel. (See Pl. Mot. for Rule to Show Cause
at 4.) Although Defendants’ failure to provide a complete, non-evasive response to Interrogatory
No. 14 even after the Court ordered them to do so is certainly sanctionable, the Court declines to

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impose the harsh sanctions Plaintiff proposes at this time. Fact discovery is ongoing, and
Plaintiff has yet to depose Defendants. Accordingly, any prejudice Plaintiff has suffered to date
from Defendants’ misconduct is minimal. See Howard v. Sweetheart Cup Co., No. 00 C 648,
2001 WL 721765, at *3 (N.D. Ill. June 27, 2001) (declining to hold the defendant in contempt,
preclude the defendant from raising certain arguments at trial, or enter a default judgment where
the plaintiff failed to identify the harm she suffered from the defendant’s discovery violations,
other than the additional time and effort she expended obtaining the requested discovery).
Furthermore, the Court will extend the discovery deadlines currently in place to minimize any
prejudice to Plaintiff in the future,4 and it will require Defendants and their attorneys to pay
Plaintiff’s reasonable expenses, including attorney’s fees, incurred in bringing its motion for
issuance of a rule to show cause and to bar defenses and evidence. See Fed. R. Civ. P. 37(d)(3).
Despite Defendants’ cavalier attitude toward discovery to date, the Court will give them one
more chance to comply with their discovery obligations and the Court’s order before imposing
more severe sanctions. If Defendants continue to disregard their discovery obligations, Plaintiff
may renew its motion for issuance of a rule to show cause and to bar defenses and evidence at
the appropriate time.
Accordingly, the Court grants in part and denies in part Plaintiff’s motion for issuance of
a rule to show cause and to bar defenses and evidence. (R. 123.) Defendant Surdej shall
supplement and verify his response to Interrogatory No. 14, consistent with this Opinion, by
April 1, 2014. Similarly, Defendants Barbara Surdej, Jeffrey Surdej and Agnieszka Bialas shall
supplement and verify their responses to Interrogatory No. 4 by April 1, 2014. With respect to
Plaintiff’s fees and expenses, Plaintiff shall provide its billing records and other evidence
establishing its attorney’s fees and expenses to Defendants and their counsel, pursuant to Local
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The Court will set new fact and expert discovery deadlines at the status hearing on March 26, 2014.

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Rule 54.3(d)(1)-(3), by April 15, 2014. The parties shall meet and confer regarding Plaintiff’s
fee request by April 25, 2014, and pursuant to Local Rule 54.3(e), they shall file a joint statement
regarding any fees or expenses that remain in dispute after their meet and confer by May 5, 2014.
II.

Plaintiff’s Motion to Strike or Remove Defendants’ Designation of Documents
under the Agreed Confidentiality Order
A.

Background

Plaintiff next moves to strike or remove Defendants’ designation of documents as
“Confidential” or “Attorney’s Eyes Only” under the Agreed Confidentiality Order
(“Confidentiality Order”) and its Modification. (See R. 125, Pl. Mot. to Strike.) Under the
Confidentiality Order, the parties may designate discovery materials as “Confidential-Subject to
Protective Order” if the materials include any of the following categories of “Confidential
Information:”
(a) information prohibited from disclosure by statute; (b) information that reveals
trade secrets; (c) pricing and quantity information between either party and its
vendors; (d) personal identity information which includes social security numbers,
driver’s license numbers, or financial account numbers; (e) income tax returns
(including attached schedules and forms), W-2 forms and 1099 forms; or
(f) personnel or employment records of a person who is not a party to the case.
(See R. 53, Conf. Order § 2.) Additionally, the Modification to the Confidentiality Order allows
the parties to designate information as “Confidential-Attorney’s Eyes Only” if the designating
party “determines in good faith that it contains non-public information of a competitively or
commercially sensitive, proprietary, or financial nature, trade secrets, information that gives the
Designating Party a competitive advantage, or involves or implicates the privacy interests of
persons who are not a party to this lawsuit.” (See R. 108, Modification § 1.) The Confidentiality
Order provides that “[t]he designation of a document as Confidential Information is a
certification by an attorney . . . that the document contains Confidential Information as defined in
this order.” (Conf. Order § 3(b).)
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Section 9 of the Confidentiality Order provides the procedures a party must follow to
challenge the designation of material as Confidential Information. (Id. § 9.) Under Section 9,
the challenging party first must meet and confer with counsel for the designating party,
“explain[ing] the basis for its belief that the confidentiality designation was not proper and . . .
giv[ing] the designating party an opportunity to review the designated material, to reconsider the
designation, and, if no change in designation is offered, to explain the basis for the designation.”
(Id. § 9(a).) If the parties cannot resolve the dispute themselves, the challenging party may then
file a motion with the Court challenging the disputed designations. (Id. § 9(b).) The movant
must identify the challenged materials and “set[] forth in detail the basis for the challenge” in its
motion. (Id.) In addition, the movant must submit a declaration affirming that it complied with
the meet and confer requirements of the Confidentiality Order. (Id.) The Order specifies that
“[t]he burden of persuasion in any such challenge proceeding shall be on the designating party.”
(Id.)
On January 21, 2014, Defendants produced 5,475 documents in response to Plaintiff’s
document requests. (See Pl. Mot. to Strike ¶ 6.) According to Plaintiff, Defendants designated
“nearly every single document as either Confidential or Attorneys’ Eyes Only,” even though
“[m]any, if not most, of these documents do not contain any of the protected information
outlined in the [Confidentiality] Order or Modification thereto.” (Id.) On January 24, 2014,
Plaintiff’s counsel notified Defendants of his objection to the “shotgun” nature of Defendants’
designations and requested that the parties meet and confer to resolve the issue. (Id. ¶ 7.)
On January 30, 2014, after Plaintiff’s counsel finished reviewing Defendants’ production,
he provided Defendants with a list of the specific documents for which Plaintiff disputed
Defendants’ confidentiality designations. (See Pl. Mot. to Strike at Ex. 5.) Plaintiff challenged

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292 documents designated as “Confidential” that, according to Plaintiff, “do not contain
information protected from disclosure under statute, reveal trade secrets, pricing and quantity
information, personal identity information, income tax returns, W-2 or 1099 forms, or personnel
or employment records of a person not a party to the case.” (Id. at 1 & Ex. A.) Plaintiff also
challenged six documents designated as “Attorney’s Eyes Only” that it contends “do not contain
non-public information of a competitive or commercially sensitive nature, proprietary or
financial nature, trade secrets, information which would give competitors an advantage, or
involve privacy concerns of non-parties.” (Id. at 1 & Ex. B.)
Defendants did not respond substantively to Plaintiff’s challenges to their document
designations. Rather, Defendants’ counsel emailed Plaintiff’s counsel stating:
If there are any confidentiality designations you believe are interfering with your
ability to prosecute the case, please let us know and we will work with you on
those designations. Otherwise, the protective order should provide you with the
flexibility to use the designated documents as you need to.
(See Pl. Mot. to Strike at Ex. 6.) This response, to say the least, is not helpful.
On February 3, 2014, the parties met and conferred in person about the document
designations, among other things. (See Pl. Mot. to Strike ¶ 12.) Defendants again stated that
they would not remove the challenged designations unless Plaintiff could explain how the
designations impeded its prosecution of the case. (Id. ¶ 13.) Additionally, Defendants expressed
concern that the challenged documents might end up in the newspaper if they removed the
confidentiality designations and proposed that the parties expand the Confidentiality Order to
prevent public disclosure of documents produced in the litigation.5 (Id.) Plaintiff’s counsel
refused to agree to the proposed expansion. Following the parties’ meet and confer, Plaintiff’s
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On March 20, 2014, Defendants filed a motion to amend the Confidentiality Order to prevent public
disclosure of any documents produced in this litigation even if the parties have not designated the
documents as “Confidential” or “Attorney’s Eyes Only.” (See R. 146.) The parties should be prepared to
address Defendants’ motion during the status hearing on March 26, 2014.

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counsel wrote to Defendants’ counsel two more times regarding Defendants’ purportedly
improper document designations, but he received no response to his correspondence. (Id. ¶¶ 1416.) Plaintiff subsequently filed this motion to strike or remove the challenged confidentiality
designations.
B.

Analysis

Defendants, notably, do not contend that their confidentiality designations were proper
for the vast majority of the documents at issue. Indeed, Defendants admit that they can remove
the confidentiality designations for at least some of the challenged documents, although they do
not specify to which documents they are referring. (See R. 138, Defs. Resp. to Mot. to Strike at
3-4.) Rather than defend their confidentiality designations, Defendants argue that Plaintiff’s
motion to strike the designations is improper. Specifically, Defendants argue that Plaintiff failed
to comply with the procedures outlined in Section 9 of the Confidentiality Order for challenging
a party’s confidentiality designations. (See id. at 1-3.) The Court disagrees.
In accordance with Section 9, Plaintiff identified the specific documents for which it
challenged Defendants’ designations by Bates-range, and it explained the basis for its challenge
to those designations, namely that the documents do not contain any “Confidential Information”
or “Attorney Confidential Information,” as those terms are defined in the Confidentiality Order
and Modification. Furthermore, after notifying Defendants that it objected to their apparent
“shotgun” approach to the designations, which resulted in Defendants designating nearly every
document as “Confidential,” Plaintiff narrowed the number of documents it challenged to less
than 300. Plaintiff, therefore, complied with its meet-and-confer obligations under Section 9 of
the Confidentiality Order.

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Defendants, on the other hand, did not. Defendants provided no substantive response to
Plaintiff’s letter regarding the challenged designations. Instead, Defendants attempt to shift the
burden to Plaintiff to identify the confidentiality designations that were interfering with
Plaintiff’s prosecution of the case. (See Pl. Mot. to Strike at Ex. 6.) Neither the Confidentiality
Order nor the Modification provides a basis for Defendants to impose this burden on Plaintiff,
and Defendants do not have the authority to unilaterally amend the Confidentiality Order to their
liking. Only the Court may amend the Confidentiality Order and Modification. If, as
Defendants contend, they believe that Plaintiff will misuse certain documents to “harass or
embarrass the Defendants or for some other purposes unrelated to the representation of Plaintiff,”
their propose recourse was to seek protection from the Court, not to disregard their obligations
under the Confidentiality Order. Cf. Scott v. Chuhak & Tecson, P.C., 725 F.3d 772, 779 (7th Cir.
2013) (“If the estate believed that [the defendant] was not complying with the spirit of the
discovery order, the estate should have alerted the district court. By claiming in the course of its
challenge to the discovery sanctions that [the defendant] engaged in bad faith conduct prior to
the estate’s violation of the protective order, the estate is treading dangerously close to a selfhelp argument.”).
Accordingly, the Court rejects Defendants’ objections to Plaintiff’s motion to strike. The
Court orders Defendants to respond substantively to Plaintiff’s designation challenges on a
document-by-document basis by April 4, 2014. The parties shall meet and confer regarding any
documents that remain in dispute by April 15, 2014. If the parties cannot resolve the remaining
disputes, Plaintiff may renew its motion to strike Defendants’ confidentiality designations at that
time.

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III.

Defendants’ Motion to Compel the Production of Non-Market Share Documents
On November 1, 2013, Defendants served on Plaintiff thirty-eight requests for documents

related to issues other than market power. (See R. 130, Defs. Mot. to Compel at Ex. 1.) Plaintiff
still has not served its responses, which are now three-months overdue. (See id. ¶ 7.) As a result,
Defendants move to compel Plaintiff to produce the requested documents.
In response to Defendants’ motion to compel, Plaintiff states that it can produce the
requested documents within twenty-one days. (See R. 142, Pl. Resp. to Defs. Mot. to Compel
¶ 6.) In accordance with Plaintiff’s agreement, the Court orders Plaintiff to produce the
requested documents by April 15, 2014, and denies Defendants’ motion to compel as moot.
CONCLUSION
For the reasons explained above, the Court grants in part and denies in part Plaintiff’s
motion for issuance of a rule to show cause and to bar defenses and evidence (R. 123) and
Plaintiff’s motion to strike or remove Defendants’ designation of documents under the Agreed
Confidentiality Order (R. 125), and denies Defendants’ motion to compel (R. 130) as moot in
light of Plaintiff’s agreement to produce the requested documents within twenty-one days.
Additionally, the Court notes that the continuous discovery disputes in this case have become
problematic. Before filing any additional discovery motions, the parties must meet and confer in
person and certify that they have done so.

DATED: March 25, 2014

ENTERED

______________________________
AMY J. ST. EVE
U.S. District Court Judge

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