Spano et al v. Boeing Company, The et al

Filing 331

ORDER ON DISCOVERY DISPUTE. Signed by Magistrate Judge Donald G. Wilkerson on 7/8/2011. (hbs)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
GARY SPANO, et al.,

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Plaintiffs,
v.
THE BOEING COMPANY, et al.,
Defendants.

Case No. 3:06-cv-743-DRH-DGW

ORDER
This action comes before the Court on a discovery dispute. On June 7, 2011, the
undersigned held a telephonic discovery dispute conference to discuss the scope of discovery after
the Seventh Circuit’s remand. After hearing arguments from both sides, the Court directed the
parties to file briefs on the issue.
BACKGROUND
Plaintiffs brought this lawsuit against Defendants for breach of fiduciary duty under the
Employee Retirement Income Security Act (“ERISA”) in managing Defendants’ defined
contribution plans (commonly known as 401(k) plans). Defendants also manage defined benefit,
or pension, plans. The claims in Plaintiffs’ second amended complaint are limited to Defendants’
management of the defined contribution plans. In the early stages of this lawsuit, Plaintiffs
sought discovery regarding the defined benefit plans. The Court found such discovery not
relevant to the issues raised in the lawsuit and denied Plaintiffs’ requests for discovery regarding
the defined benefit plans (Doc. 156, p. 4).
Now, upon remand from the Seventh Circuit for reexamination of the typicality and
adequacy-of-representation requirements for class certification, Plaintiffs again seek discovery

regarding the defined benefit plans managed by Defendants. Plaintiffs argue that information
about the defined benefit plans is relevant to the issue of class certification. Specifically,
Plaintiffs contend that a comparison of the management of the defined contribution and the
defined benefit plans will yield information relevant to the issue of class certification. Thus, they
seek a vast array of information about the defined benefit plans focusing on the Defendants’
deliberation or decision-making process in selecting specific investment plans. Plaintiffs further
argue that comparing or “benchmarking” the defined benefit plans against the defined contribution
plans will assist the Court and the parties in determining investment “losers” who should be
included in the a certified class or classes, and investment “winners” who should be excluded.
Plaintiffs submit as an exhibit eleven requests for production regarding class certification (Doc.
329-1, Exh. 1).
Defendants argue in opposition that discovery into the defined benefit plans is not relevant
to the issue of class certification. They further argue that the Court’s previous ruling limiting
discovery to the defined contribution plans should continue to be the controlling discovery
standard.
ANALYSIS
Under Fed. R. Civ. P. 26(b)(1), a court may “order discovery of any matter relevant to the
subject matter involved in the action” when good cause is shown. Relevant information does not
have to be admissible at trial, but it must be “reasonably calculated to lead to the discovery of
admissible evidence.” Id.
The Court has reviewed its previous orders, the Seventh Circuit’s remand opinion, and the
briefs of the parties. The Court continues to believe, and finds that it is reasonable to believe, that
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information regarding the defined benefit plans is not relevant to the substantive issues in the case,
much less is it relevant to the class certification issues raised by the Seventh Circuit. The Court
has painstakingly considered Plaintiffs’ arguments attempting to link discovery of the defined
benefit plans to the outstanding issues related to class certification, but the Court finds that
comparison of the performance of assets in the defined benefit plans will not inform the
determination whether an individual was a “winner” or “loser” in the defined contribution context.
Moreover, the Court is cognizant of its own past rulings barring discovery into the defined benefit
plans. While the Court has vast discretion in discovery matters and thus the authority to reverse
itself, the Court is not convinced that its prior order was clearly erroneous or the circumstances
have changed so as to justify reversal of its ruling. Ultimately, the Court is not convinced that
discovery into Defendants’ defined benefit plans will shed any light on the issues as identified by
the Seventh Circuit regarding typicality or adequacy of representation of the proposed class or
classes. As a result, the Court cannot give credence to Plaintiffs’ argument.
Based on the foregoing, the Court finds that Plaintiffs’ Requests for Production 1 – 9 are
not reasonably calculated to lead to the discovery of admissible evidence. Defendants are
therefore not required to respond to those requests. The Court finds that requests for production
10 and 11 are moot.1
IT IS SO ORDERED.
DATED: July 8, 2011

DONALD G. WILKERSON
United States Magistrate Judge
1

Regarding Request No. 10, the Defendants responded that they have already produced responsive documents and are
unaware of additional responsive, non-privileged documents. Regarding Request No. 11, the Defendants responded
that it is producing a series of documents received from a third-party source, ING, that are responsive to the request.

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