Arcelormittal Indiana Harbor LLC v. Amex Nooter LLC

Filing 53

OPINION AND ORDER: The Court hereby GRANTS ArcelorMittals Motion to Compel Amex Nooters Document Production of All Communications Between Amex Nooter and IOSHA 31 , DENIES the Motion to Strike ArcelorMittals Reply in Support of its Motion to Compe l 44 , and DENIES the Petition for Oral Argument of Amex Nooter, LLC 50 . The Court ORDERS Amex Nooter to serve the two documents on ArcelorMittal in a supplemental response to Request for Production No. 25 on or before February 23, 2016. Amex Nooter may designate those documents as confidential and protected pursuant to the January 11, 2016 Stipulated Protective Order entered in this case. Signed by Magistrate Judge Paul R Cherry on 2/16/2016.(rmn)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
ARCELORMITTAL INDIANA HARBOR LLC,
Plaintiff,
v.
AMEX NOOTER, LLC,
Defendant.

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CAUSE NO.: 2:15-CV-195-PRC

OPINION AND ORDER
This matter is before the Court on ArcelorMittal’s Motion to Compel Amex Nooter’s
Document Production of All Communications Between Amex Nooter and IOSHA [DE 31], filed
by Plaintiff ArcelorMittal Indiana Harbor LLC (“ArcelorMittal”) on December 15, 2015. Defendant
Amex Nooter, LLC (“Amex Nooter”) filed a response on December 30, 2015, and ArcelorMittal
filed a reply on January 6, 2016. On January 14, 2016, Amex Nooter filed a Motion to Strike
ArcelorMittal’s Reply in Support of its Motion to Compel [DE 44]; ArcelorMittal filed a response
on January 20, 2016, and Amex Nooter filed a reply on January 27, 2016. Finally, on February 3,
2016, Amex Nooter filed a Motion for Oral Argument [DE 50].
A. Motion to Strike
In the Motion to Strike, Amex Nooter argues that ArcelorMittal raises for the first time in
the reply brief new bases for discovering the settlement negotiations between Amex Nooter and
Indiana Occupational Safety and Health Administration (IOSHA).
In the opening motion, ArcelorMittal argued that “Amex Nooter’s communications with
IOSHA are relevant, as they may shed light on the events that led to the fire and explosion, including
whether the Amex Nooter employees were properly trained, whether the Amex Nooter employees
properly engaged in all safety precautions, and whether the Amex Nooter employees were otherwise

negligent in their actions.” (Pl. Mot. 2-3). In the reply, for the first time, ArcelorMittal suggests that
it seeks the documents for additional purposes, such as for impeachment. In support, ArcelorMittal
cites the deposition testimony of two Amex Nooter employees, contending that the deposition
testimony shows that Amex Nooter may have misrepresented to IOSHA the events leading up to the
fire and explosion at issue in this case.1 This new legal and factual argument, raised for the first time
in the reply brief, is not properly before the Court.
Also for the first time in its reply brief, ArcelorMittal asserts that “unqualified factual
assertions” made in settlement negotiations are admissible under Rule 408. (Pl. Reply ¶ 4) (citing
Evansville Greenway & Remediation Tr. v. S. Ind. Gas & Elec. Co., No. 3:07-CV-66, 2010 WL
779494, at *3-4 (S.D. Ind. Feb. 26, 2010)). This new argument is not properly before the Court for
purposes of the Motion to Compel. Nevertheless, the Court addresses the reference to “unqualified
factual assertions” because it is based on a portion of the proposed House amendment, reported in
the advisory committee’s note to the 1974 enactment of Rule 408, that was ultimately not included
in the final version of Rule 408.
The advisory committee’s note first quotes House Report No. 93-650, in which the House
explained its proposed modification of the Supreme Court’s proposed Rule 408; this House
modification contains the reference to “unqualified factual assertions” cited by ArcelorMittal: “[T]he

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Rule 408 prohibits the use of settlement negotiations “to impeach by a prior inconsistent statement or a
contradiction.” Fed. R. Evid. 408.
ArcelorMittal cites Bankcard America, Inc. v. Universal Bancard Systems, 203 F.3d 477, 484 (7th Cir. 2000),
in support of its argument that Rule 408 does not prohibit evidence offered for impeachment purposes. However, the
court in Bankcard America was not dealing with “garden-variety impeachment” but rather a RICO claim between two
sales organizations and the application of an estoppel exception to Rule 408, and the “court found that Rule 408 was not
intended to permit a party to induce detrimental reliance on a promise made during negotiations and then assert
confidentiality when the victimized party claimed estoppel.” Dow Chemical Co. and Subsidiaries v. United States, 250
F. Supp. 2d 748, 805 (E.D. Mich. 2003) (rejecting the assertion that this holding in Bankcard America allowed a
statement made for settlement purposes to impeach a denial of liability).

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Committee recast the Rule so that admissions of liability or opinions given during compromise
negotiations continue inadmissible, but evidence of unqualified factual assertions is admissible.”
Fed. R. Evid. 408 advisory committee’s note to 1974 enactment (emphasis added) (citing House
Report No. 93-650).
The advisory committee’s note then quotes Senate Report No. 93-1277:
This rule as reported makes evidence of settlement or attempted settlement of a
disputed claim inadmissible when offered as an admission of liability or the amount
of liability. The purpose of this rule is to encourage settlements which would be
discouraged if such evidence were admissible.
Under present law, in most jurisdictions, statements of fact made during settlement
negotiations, however, are excepted from this ban and are admissible. . . . Rule 408
as submitted by the [Supreme] Court reversed the traditional rule. It would have
brought statements of fact within the ban and made them, as well as an offer of
settlement, inadmissible.
The House amended the rule and would continue to make evidence of facts disclosed
during compromise negotiations admissible. It thus reverted to the traditional rule.
...
...
For [stated reasons], the committee has deleted the House amendment and restored
the rule to the version submitted by the Supreme Court . . . .
Fed. R. Evid. 408 advisory committee’s note to 1974 enactment (emphasis added). Finally, the
advisory committee’s note explains that “[t]he Conference adopts the Senate amendment.” Fed. R.
Evid. 408 advisory committee’s note to 1974 enactment (citing House Report No. 93-1597). Thus,
neither the express language nor the history of Rule 408 supports an exception for “unqualified
factual assertions.”

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Because the arguments raised for the first time in the reply brief are apparent on their face,
the Court disregards the newly raised issues in ruling on the Motion to Compel rather than striking
the entire brief. The Court denies the Motion to Strike.
B. Motion to Compel
On August 10, 2015, ArcelorMittal issued written discovery to Amex Nooter, including
Request for Production No. 25, which seeks “[a]ny and all documents of Indiana OSHA’s
investigation of the incident, including all documents received from IOSHA, all communications
with IOSHA, and all documents provided to IOSHA.” (Pl. Mot., Ex. B). On November 9, 2015,
Amex Nooter served Supplemental Responses and Objections to that discovery, including 167 pages
of responsive documents:
INITIAL RESPONSE:
Amex Nooter objects to Request for Production No. 25 as duplicative of Request for
Production Nos. 22, 23, and 24. Amex Nooter further objects to Request for
Production No. 25 to the extent that the request seeks documents protected from
disclosure pursuant to Federal Rule of Evidence 408. Without waiving any
objections, including those regarding relevance and admissibility, Amex Nooter will
provide all responsive, non-privileged, and non-protected documents received from,
or provided to, IOSHA [in] its possession.
SUPPLEMENTAL RESPONSE:
Without waiving any objections, including those regarding relevance and
admissibility, Amex Nooter has produced, or herewith produces, documents Bateslabeled: AMEX 000213 through AMEX 000215; and AMEX 000805 through
AMEX 000972.
(Pl. Mot., Ex. C, p. 13). Amex Nooter withheld two documents, objecting that the documents contain
confidential settlement negotiations and, thus, are protected from disclosure under Federal Rule of
Evidence 408. See (Def. Resp., Ex. C, p. 13) (Amex Nooter LLC Privilege Log); see also (Pl. Mot.,
Ex. E, p. 2) (November 24, 2015 correspondence providing the privilege log).
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As an initial matter, ArcelorMittal misrepresents the facts when it states that “Amex Nooter
withheld from production all communications between Amex Nooter and IOSHA, claiming privilege
under Federal Rule of Evidence 408.” (Pl. Mot. 1-2) (emphasis added). Rather, Amex Nooter
produced all the documents in its IOSHA file, with the exception of the two withheld documents.
The documents produced include, among other things, investigation reports, communications
between Amex Nooter and IOSHA, responsive discovery, witness statements, and all sixteen pages
of the final settlement agreement between Amex Nooter and IOSHA. ArcelorMittal does not
acknowledge this substantial production in either its motion or reply brief. Thus, when ArcelorMittal
asks the Court to compel Amex Nooter to produce “all communications between Amex Nooter and
[IOSHA],” ArcelorMittal is seeking only two documents.
Amex Nooter objects to producing the two documents, arguing that they are protected from
discovery by Federal Rule of Evidence 408. In the Motion to Compel, ArcelorMittal asserts that
Rule 408 limits only admissibility, not discoverability, and that Federal Rule of Civil Procedure
26(b)(1) permits the discovery of confidential settlement negotiations. The Court agrees with
ArcelorMittal. Rule 408 does not limit the discovery of settlement negotiations; rather, whether
settlement negotiations are discoverable is governed by the standard in Rule 26(b)(1).
Federal Rule of Evidence 408 provides:
(a) Prohibited Uses. Evidence of the following is not admissible–on behalf of any
party–either to prove or disprove the validity or amount of a disputed claim or to
impeach by a prior inconsistent statement or a contradiction:
(1) furnishing, promising, or offering–or accepting, promising to accept, or
offering to accept–a valuable consideration in compromising or attempting
to compromise the claim; and
(2) conduct or a statement made during compromise negotiations about the
claim–except when offered in a criminal case and when the negotiations
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related to a claim by a public office in the exercise of its regulatory,
investigative, or enforcement authority.
(b) Exceptions. The court may admit this evidence for another purpose, such as
proving a witness’s bias or prejudice, negating a contention of undue delay, or
proving an effort to obstruct a criminal investigation or prosecution.
Fed. R. Evid. 408 (emphasis added). By its own language, Rule 408 governs the admissibility of
settlement negotiations and not their discoverability. See Clark v. Experian Info. Solutions, No. 03
C 7882, 2006 WL 626820, at *2 (N.D. Ill. Mar. 8, 2006) (“Rule 408 does not create any category
of documents that is off limits from discovery. Rather, Rule 408 creates a narrow exclusion from
admissibility as evidence.”); White v. Kenneth Warren & Son, Ltd., 203 F.R.D. 364, 368 (N.D. Ill.
2001) (“Rule 408 ‘only applies to the admissibility of evidence at trial and does not necessarily
protect such evidence from discovery;’ therefore, the rules governing discovery are applicable to
settlement documents.” (quoting Morse/Diesel, Inc. v. Fidelity and Deposit Co., 122 F.R.D. 447, 449
(S.D.N.Y. 1988)); see also Polyone Corporation v. Lu, No. 14 C 10369, 2015 WL 9489915, at *4
(N.D. Ill. Dec. 30, 2015) (“Rule 408 does not create a category of documents that is off limits from
discovery. Rather, Rule 408 creates a narrow exclusion from admissibility as evidence.”); Meharg
v. I-Flow, No. 1:08-CV-184, 2009 WL 3032327, at *3 (S.D. Ind. Sept. 18, 2009) (“Rule 408 applies
only to admissibility at trial, not to discovery.”).2
Discovery of settlement negotiations is governed by Rule 26(b)(1), which defines the scope
of discovery:
Parties may obtain discovery regarding any nonprivileged matter that is relevant to
any party’s claim or defense and proportional to the needs of the case, considering
the importance of the issues at stake in the action, the amount in controversy, the
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In making this statement, the court was dealing with the discoverability of a settlement agreement by a nonsettling party and not the discoverability of confidential settlement negotiations. Meharg v. I-Flow Corp., No. 1:08-CV184, 2009 WL 3032327, at *3 (S.D. Ind. Sept. 18, 2009).

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parties’ relative access to relevant information, the parties’ resources, the importance
of the discovery in resolving the issues, and whether the burden or expense of the
proposed discovery outweighs its likely benefit. Information within this scope of
discovery need not be admissible in evidence to be discoverable.
Fed. R. Civ. P. 26(b)(1) (amended Dec. 1, 2015) (emphasis added).
The recent amendment to Rule 26(b)(1), effective December 1, 2015, and applicable to this
dispute, removed the familiar language that relevant information does not have to be admissible at
the trial to be discoverable if it “appears reasonably calculated to lead to the discovery of admissible
evidence.” See Fed. R. Civ. P. 26(b)(1) (2010) (amended Dec. 1, 2015).3 The advisory committee’s
note explains that the language had been “used by some, incorrectly, to define the scope of
discovery” as more broad than the scope set forth in Rule 26(b)(1). Fed. R. Civ. P. 26(b)(1) advisory
committee’s note to 2015 amendment. “Discovery of nonprivileged information not admissible in
evidence remains available so long as it is otherwise within the scope of discovery.” Id. Neither
party acknowledged this amendment nor discussed its impact on the instant dispute.
Thus, the Court considers whether the two settlement negotiation documents at issue in this
case are discoverable under Rule 26(b)(1). First, the information is not privileged because there is
no federal privilege regarding settlement negotiations. See Pactive Corp. v. Multisorb Techs., Inc.,
No. 10 C 461, 2012 WL 1831517, at *5 (N.D. Ill. May 18, 2012); see also United States v. Dish
Network, L.L.C., 943 F. Supp. 2d 891, 895 (2013) (“Plaintiffs are correct that no generally

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“Generally a new procedural rule applies to the uncompleted portions of suits pending when the rule became
effective . . . .” Richardson Electronics, Ltd. v. Panache Broadcasting of Pennsylvania, Inc., 202 F.3d 957, 959 (7th Cir.
2000) (addressing the amendment of Federal Rule of Civil procedure 23(f)). In its order approving the amendments,
dated April 29, 2015, the United States Supreme Court ruled that the amendments “shall take effect on December 1,
2015, and shall govern in all proceedings in civil cases thereafter commenced and, insofar as just and practicable, all
proceedings then pending.” http://www.supremecourt.gov/orders/courtorders/frcv15_5h25.pdf (Last visited Feb. 16,
2016). Although the discovery request was served prior to December 1, 2015, the motion was filed and briefed after that
date. Thus, this Court’s analysis proceeds under the new verison of Federal Rule of Civil Procedure 26(b)(1) as both just
and practicable.

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recognized settlement-negotiation privilege exists.” (citing Pactive Corp., 2012 WL 1831517, at
*5)); Thermal Design, Inc. v. Guardian Bldg. Prods., Inc., 270 F.R.D. 437, 438-39 (E.D. Wis. 2010)
(“[T]he court agrees with the cases which find that there is no federal privilege preventing the
discovery of settlement agreements and related documents.”); Clark, 2006 WL 626820, at *2. As
noted above, Rule 408 does not apply to the discovery of settlement negotiations. In Pactive Corp.,
the court reasoned that new federal privileges are not to be created by courts lightly and that liberal
discovery is the rule. Id. at *5. Similarly, the court in Steele v. Lincoln Financial Group found no
privilege established by Rule 408 but rather that the discovery of settlement negotiations between
the plaintiff’s employer (the defendant in Steel) and the EEOC was governed by Rule 26, which
provides for liberal discovery. No. 05 C 7163, 2007 WL 1052495, at *4 (N.D. Ill. Apr. 3, 2007).
Several district court cases in the Seventh Circuit Court of Appeals have recognized that
Rule 408 does not shield discovery of settlement negotiations but nevertheless adopted a higher
standard for discovering the settlement negotiations based on the pre-amendment language of Rule
26(b)(1) that otherwise inadmissible evidence is discoverable if it “appears reasonably calculated
to lead to the discovery of admissible evidence.” See Pfizer Inc. v. Apotex Inc., 731 F. Supp. 2d 754,
762 (N.D. Ill. 2010); Steele, 2007 WL 1052495, at *3-4; Clark, 2006 WL 626820, at *2-3; Vardon
Golf Co. v. BBMG Golf, Ltd., 156 F.R.D. 641, 651-52 (N.D. Ill. 1994).4
In Vardon, the court found that information relating to settlement negotiations between the
parties to the ongoing litigation was not subject to discovery because the negotiations were sought
only to prove the amount of a reasonable royalty, an inadmissible purpose under Rule 408, and there

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VanGilder v. Baker, 2008 WL 2225647, at *4 (N.D. Ind. May 27, 2008), cited by ArcelorMittal in its reply
brief, is inapposite because it concerned the admissibility of settlement negotiations at trial in a ruling on a motion in
limine and did not address the discovery of the settlement negotiations.

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was no showing that the settlement evidence was “reasonably calculated to lead to discovery of other
admissible evidence.” 156 F.R.D. at 651 (reasoning that settlement negotiations would not be a
reliable basis for calculating a reasonable royalty because of the many factors involved in the
negotiations and because “settlement often lacks reliability as to the true value of a claim” (citing
Universal Athletic Sales Co. v. Am. Gym, 480 F. Supp. 408, 414 (W.D. Pa. 1979))). The court also
focused on the policy enshrined in Rule 408 of favoring freely negotiated settlements and was
concerned about chilling the parties’ willingness to enter into settlement negotiations. Id. at 652.
The court in Clark recognized that there is no broad rule that information relating to
settlement negotiations is outside the scope of discovery, or “privileged,” as a result of Rule 408
because “Rule 408 does not create any category of documents that is off limits from discovery.”
Clark, 2006 WL 626820, at *2-3. Nevertheless, the court adopted the test in Vardon: “[T]o obtain
information that would be inadmissible because of Rule 408, the proponent of discovery must
demonstrate that it is admissible for another purpose or by showing how discovery of the item might
lead to other admissible evidence.” Id. (emphasis added) (citing Vardon, 156 F.R.D. at 651).
In Steele, a workplace sexual harassment case, the plaintiff sought information from the
settlement negotiations between her employer and the EEOC. 2007 WL 1052495, at *3. The
employer did not dispute that the evidence was relevant but rather that it was discoverable. Id. at *4.
The court in Steele recognized that there is no privilege established under Rule 408 because “[e]ven
under Rule 408 . . . settlement discussions between the parties to the litigation may be admissible
so long as they are not used to prove liability.” Id. As the discovery sought in Steele was not
between parties but rather was between the employer (a party to the litigation) and the EEOC (a
nonparty), the court found that “[i]f that information might have utility (i.e., relevance) beyond

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proving liability, discovery should not be peremptorily foreclosed.” Id. The court considered
whether the settlement negotiations were discoverable under the liberal discovery standard of Rule
26(b)(1). Id. However, because the plaintiff had made no attempt to explain what relevance the
information might have had beyond proving liability, the court did not allow the discovery. Id. at
*4. Applying the pre-amendment language of Rule 26(b)(1), the court reasoned that, notwithstanding
liberal discovery, “discovery which can only lead to inadmissible evidence is prohibited by the plain
language of Rule 26.” Id.
Finally, the court in Pfizer, like the other courts, recognized that there is no broad settlement
privilege. 731 F. Supp. 2d at 762-63 (citing Steele, 2007 WL 1052495, at *4; Vardon, 156 F.R.D.
641)). Yet, the court acknowledged the holdings in Steele and Vardon that “caution against
discovery of settlement discussions.” Id. at 764. In its own analysis, the Steele court discussed only
Rule 408 and not Rule 26(b)(1). Id. at 762-64. The court held that “the weight of authority bars [the
defendant] from discovering documents relating to or created during settlement negotiations
involving [the plaintiff and third parties.]” Id. at 764. In addition, the court reasoned that the
defendant was not seeking the settlement negotiations to challenge the settlements themselves but
rather to “disprove liability, which Rule 408 prohibits.” Id. The court then allowed discovery of the
settlement agreements themselves, but nothing more. Id.
The reliance in Vardon, Clark, and Steele (and Pfizer’s reliance on Vardon and Clark) on
the pre-amendment language of Rule 26(b)(1) to limit the discovery of settlement negotiations is no
longer persuasive. Rule 26(b)(1) expressly provides that evidence need not be admissible to be

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discoverable. The only question then is whether the discovery sought meets the standard set out in
Rule 26(b)(1) for relevance and proportionality.5
In the Motion to Compel, ArcelorMittal contends that the settlement negotiations between
Amex Nooter and nonparty IOSHA are relevant under Rule 26(b)(1) as the documents “may shed
light on the events that led to the fire and explosion, including whether the Amex Nooter employees
were properly trained, whether the Amex Nooter employees properly engaged in all safety
precautions, and whether the Amex Nooter employees were otherwise negligent in their actions.”
(Pl. Mot. 2-3). The Court agrees.
Although the settlement negotiations themselves would not be admissible at trial on the
topics proposed by ArcelorMittal to “prove or disprove the validity or amount” of the claim, relevant
evidence need not be admissible to be discoverable. See Fed. R. Evid. 408; Fed. R. Civ. P. 26(b)(1).
However, information within the settlement negotiations will likely allow ArcelorMittal to conduct
additional relevant discovery on those topics. And, the settlement negotiations may be admissible
under one of the exceptions to Rule 408 for some purpose other than the impermissible purposes of
proving the validity or amount of the claim or impeaching by a prior inconsistent statement or a
contradiction. ArcelorMittal has met its burden of explaining how the negotiations are relevant. See
White, 203 F.R.D. at 368 (not allowing discovery of settlement negotiations that had led to a
settlement between the parties in the ongoing litigation because the party seeking the settlement
negotiations had not demonstrated “how the negotiations, as compared to an actual settlement
agreement, may be relevant to the ongoing litigation”).

5
As noted earlier, neither party acknowledged the 2015 amendment to Rule 26(b)(1) in its brief. Therefore,
neither party addressed the impact of the amendment on the prior case law applicable to the instant motion.

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Proportionality, which was added to the definition of the scope of discovery with the
December 1, 2015 amendment to Rule 26(b)(1), has not been briefed as neither party cited the
amended rule. See Fed. R. Civ. P. 26(b)(1) advisory committee’s note to 2015 amendment (“[I]f the
parties continue to disagree [about proportionality], the discovery dispute could be brought before
the court and the parties’ responsibilities would remain as they have been since 1983. . . . The
court’s responsibility, using all the information provided by the parties, is to consider these and all
the other factors in reaching a case-specific determination of the appropriate scope of discovery.”).
In addition, the Court sees no reason to limit this discovery on its own under Rule
26(b)(2)(iii) based on the arguments and information that have been presented. See Fed. R. Civ. Pl.
26(b)(2)(iii) ( “On motion or on its own, the court must limit . . . the extent of discovery . . . if it
determines that . . . the proposed discovery is outside the scope permitted by Rule 26(b)(1).” The
Court must consider “the importance of the issues at stake in the action, the amount in controversy,
the parties’ relative access to relevant information, the parties’ resources, the importance of the
discovery in resolving the issues, and whether the burden or expense of the proposed discovery
outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1). Under this standard, discovery of the
settlement negotiations appears proportional. The questions of liability and damages are central to
the issues at stake in this action. Although ArcelorMittal does not state a damages request in the
Complaint, the amount in controversy likely well exceeds $75,000.00 given that ArcelorMittal seeks
monetary damages for damage to its Number 3 Blast Furnace following an explosion and fire.
Although ArcelorMittal has other means, for example through depositions, of possibly obtaining
information similar to that contained within these documents, ArcelorMittal cannot obtain the exact
information through any other means. The parties’ resources do not impact this analysis. The

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settlement negotiations may provide important information to the resolution of the issues, although
they are only a small part of the available discovery. The burden and expense on Amex Nooter in
producing these documents is low.
Finally, as noted by Amex Nooter, the courts in Vardon, Clark, and other cases recognize
that the “purpose of Rule 408 to encourage settlement of disputes might be chilled by fear that
negotiations might be discoverable, and have sought to balance furthering that purpose with the
policy of liberal discovery.” Clark, 2006 WL 626820, at *3 (citing White, 203 F.R.D. at 368;
Vardon, 156 F.R.D. at 650, 652); see also Evansville, 2010 WL 779494, at *3-4 (recognizing that
“Rule 408 was enacted expressly to encourage settlement discussions”). However, any concerns
regarding confidentiality of settlement negotiations in this context of relevant discovery, even
between a party and a nonparty, can be remedied by a protective order.
Therefore, the Court overrules Amex Nooter’s objection to producing the two documents
containing settlement negotiations listed on its privilege log and grants the Motion to Compel. Amex
Nooter may designate these pages as “confidential and protected” pursuant to the January 11, 2016
Stipulated Protective Order entered in this case.
CONCLUSION
Based on the foregoing, the Court hereby GRANTS ArcelorMittal’s Motion to Compel
Amex Nooter’s Document Production of All Communications Between Amex Nooter and IOSHA
[DE 31], DENIES the Motion to Strike ArcelorMittal’s Reply in Support of its Motion to Compel
[DE 44], and DENIES the Petition for Oral Argument of Amex Nooter, LLC [DE 50]. The Court
ORDERS Amex Nooter to serve the two documents on ArcelorMittal in a supplemental response
to Request for Production No. 25 on or before February 23, 2016. Amex Nooter may designate

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those documents as “confidential and protected” pursuant to the January 11, 2016 Stipulated
Protective Order entered in this case
SO ORDERED this 16th day of February, 2016.
s/ Paul R. Cherry
MAGISTRATE JUDGE PAUL R. CHERRY
UNITED STATES DISTRICT COURT

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