SQUARE D COMPANY v. BREAKERS UNLIMITED, INC.

Filing 427

ENTRY ON MOTION FOR CONTEMPT AND MOTION TO STRIKE: This cause is before the Court on the Motion for Contempt filed by Defendant Breakers Unlimited, Inc., ("Breakers") 407 and a motion to strike filed by Plaintiff Square D Company ("Square D") 422 . Both motions are fully briefed and the Court, being duly advised, DENIES both motions for the reasons set forth below ***SEE ENTRY FOR ADDITIONAL INFORMATION***. Signed by Judge William T. Lawrence on 5/5/2011. (DWH)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
SQUARE D COMPANY,
Plaintiff,
vs.
BREAKERS UNLIMITED, INC.,

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CAUSE NO. 1:07-cv-806-WTL-JMS

Defendant.
ENTRY ON MOTION FOR CONTEMPT AND MOTION TO STRIKE
This cause is before the Court on the Motion for Contempt filed by Defendant Breakers
Unlimited, Inc., (“Breakers”) (dkt. no. 407) and a motion to strike filed by Plaintiff Square D
Company (“Square D”) (dkt. no. 422). Both motions are fully briefed and the Court, being duly
advised, DENIES both motions for the reasons set forth below.
First, with regard to the motion to strike, Square D moves to strike a new argument made
in Breakers’ reply brief. However, the parties have fully addressed their positions regarding the
new argument in their briefing on the motion to strike; accordingly, Square D has not been
prejudiced by the fact that it was first raised in Breakers’ reply brief. The motion to strike is
denied, and the Court has considered all of the parties’ arguments contained in all of their briefs.
“To prevail on a request for a contempt finding, the moving party must establish by clear
and convincing evidence that (1) a court order sets forth an unambiguous command; (2) the
alleged contemnor violated that command; (3) the violation was significant, meaning the alleged
contemnor did not substantially comply with the order; and (4) the alleged contemnor failed to
make a reasonable and diligent effort to comply.” U.S. S.E.C. v. Hyatt, 621 F.3d 687, 692 (7th
Cir. 2010). In this case, Breakers asserts that Square D violated the following provision of the

protective order that was submitted by the parties and approved by the Court:
Within thirty (30) days after the conclusion of this proceeding, whether by final
adjudication on the merits from which there is no right to appeal or by other
means, each party to whom Confidential Information was produced shall, at the
election of the producing party, either (1) return all documents and copies
containing “Confidential Information” (including copies in the possession of any
employee, expert or consultant) to the producing party or (2) promptly destroy all
such materials, and in either case the party to whom such material was produced
shall provide written certification under oath to the producing party that
whichever of these two procedures the producing party elected was fully
performed.
There is no dispute that this case was concluded far more than thirty days ago, and there
is also no dispute that Square D’s counsel continues to possess “Confidential Information” as
defined by the protective order. Breakers argues that “the Court unequivocally commanded that
all Confidential Information be destroyed within 30 days of the conclusion of these
proceedings,” and therefore Square D is in contempt of the protective order. The provision at
issue is not so unequivocal, however. Rather, it requires each party to act “at the election of the
producing party.” Because prior to filing the instant motion Breakers did not make an election
regarding the disposition of its Confidential Information, Square D argues that it had no
obligation to destroy or return the Confidential Information. The Court finds that at the very
least the protective order is ambiguous with regard to a party’s obligation when no election has
been made. Accordingly, Square D has not violated an “unambiguous command” from the
Court, and there is no basis for holding Square D in contempt for retaining the Confidential
Information.1

1

Prior to the date Breakers made its election, the United States Department of Justice
made a formal request to Square D that it preserve the documents in question because they might
be relevant to an ongoing federal investigation. Breakers concedes that this request prevents
Square D from destroying or returning the documents at this time.
2

In its reply brief, Breakers shifts its argument from one objecting to Square D’s retention
of the documents to one objecting to Square D’s use of them. This argument is based on
Breakers assertion that “Square D has been improperly using Breakers Unlimited’s confidential
documents produced for an improper purpose, i.e. to develop its case against a third party in a
separate lawsuit.” However, the email Breakers cites in support of its assertion does not
demonstrate that Square D has used the Confidential Information; rather, it simply requested
permission from Breakers to do so. Therefore, Breakers has not demonstrated that a finding of
contempt would be appropriate.
SO ORDERED: 05/05/2011

_______________________________
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana

Copies to all counsel of record via electronic notification

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