BOWMAN et al v. INTERNATIONAL BUSINESS MACHINES CORPORATION et al

Filing 177

SUPPLEMENTAL ORDER ON MARCH 22, 2012, TELEPHONIC STATUS CONFERENCE: The parties appeared by counsel on March 22, 2012, for a telephonic status conference. Argument was held regarding two discovery disputes. Following the hearing, the parties submitted five page briefs. [Docket Nos. 163, 166.] The Court now addresses these issues (see Order). Signed by Magistrate Judge Tim A. Baker on 4/26/2012.(SWM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

)
)
)
)
vs.
)
INTERNATIONAL BUSINESS MACHINES )
)
CORPORATION, et al.,
)
Defendants.
JAMES BOWMAN, et al.,
Plaintiffs,

1:11-cv-593-RLY-TAB

SUPPLEMENTAL ORDER
ON MARCH 22, 2012, TELEPHONIC STATUS CONFERENCE
The parties appeared by counsel on March 22, 2012, for a telephonic status conference.
Argument was held regarding two discovery disputes. Following the hearing, the parties
submitted five page briefs. [Docket Nos. 163, 166.] The Court now addresses these issues as set
forth below.
The first issue is whether Plaintiffs should be compelled to provide certain class member
information to Defendants.1 Numerous cases have permitted discovery of such information.
See In re Bank of Am. Wage & Hour Emp’t Practices Litig., 275 F.R.D. 534, 543 n.56 (D. Kan.
2011) (listing several cases affirming orders permitting disclosure of names and contact
information for putative class members). Plaintiffs cite to Brennan v. Midwestern United Life
Insurance Co., 450 F.2d 999, 1005 (7th Cir. 1971), for the proposition that absent class members
need not submit to discovery. [Docket No. 166 at 1.] Plaintiffs’ citation, however, is

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Defendants request that Plaintiffs identify all potential class members by name, address,
and telephone number. [Docket No. 163 at 1.] Defendants also request that Plaintiffs identify
which class they are potential members of along with an explanation for the classification. [Id.]
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incomplete. The full sentence of the text Plaintiffs quote reads “[w]hile absent class members
should not be required to submit to discovery as a matter of course, if the trial judge determines
that justice to all parties requires that absent parties furnish certain information, we believe that
he has the power to authorize the use of the Rules 33 and 34 discovery procedures.” Brennan,
450 F.2d at 1005. Thus, Brennan is not particularly helpful to Plaintiffs’ position, nor is
Plaintiffs’ incomplete citation to the holding.
However, Defendants are not requesting that absent class members submit to discovery.
Cf. Brennan, 450 F.2d at 1004 (“Movants contend that absent class members are not ‘parties’ to
a suit and are consequently not subject to the ‘party’ discovery procedures provided by Rules 33
and 34, Fed. R. Civ. P.”). Rather, Defendants are requesting that participating class members
identify all potential members and their respective classes. [Docket No. 163 at 1.]
Plaintiffs also object to the request on attorney-client privilege and work product
grounds. [Docket No. 166 at 1.] However, Plaintiffs fail to cite any authority or provide any
explanation as to why either doctrine applies to class identifying information. See Alioto v.
Town of Lisbon, 651 F.3d 715, 721 (7th Cir. 2011) (failing to develop an argument results in
waiver); Dean Foods Co. v. Pleasant View Dairy Corp., No. 1:10-MC-189-PRC, 2011 WL
38994, at *2 (N.D. Ind. Jan. 5, 2011) (explaining that the nonproducing party has the burden of
establishing privilege); Morris v. Gen. Motors Corp., No. 2:07-MD-01867, 2010 WL 931883, at
*5–6 (E.D. Mich. Mar. 11, 2010) (citing numerous cases stating that attorney-client privilege
does not apply to putative class members). In any event, Plaintiffs assert that they “have
produced all of the putative class member information in their possession, custody, or control.”
[Docket No. 166 at 1.] If Plaintiffs have produced all class information as they contend, then

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they voluntarily waived any privilege that may have existed. Powers v. Chi. Transit Auth., 890
F.2d 1355, 1359 (7th Cir. 1989) (“Any voluntary disclosure by the holder of the attorney-client
privilege is inconsistent with the attorney-client confidential relationship and thus waives the
privilege.”). Accordingly, Defendants are entitled to the requested class member information.
Plaintiffs further claim that they have produced putative class member information in the
form of “data extracts and other information.” [Docket No. 166 at 1.] Defendants contend that
the data “extracts are undecipherable and do not contain headers identifying what the entries in
each column represent.” [Docket No. 163 at 2.] Plaintiffs contend that they are not required to
hire an IT expert to provide IBM with the information it seeks. [Docket No. 166 at 2.]
Generally, a responding party bears the costs of complying with discovery requests unless the
party demonstrates an “undue burden or expense.” Clean Harbors Envtl. Sevs. v. ESIS, Inc., No.
09-C-3789, 2011 WL 1897213, at *2 (N.D. Ill. May 17, 2011). Moreover, Federal Rule of Civil
Procedure 34(b)(E) provides that:
Unless otherwise stipulated or ordered by the court, these procedures apply to producing
documents or electronically stored information:
(i) A party must produce documents as they are kept in the usual course of business or must
organize and label them to correspond to the categories in the request;
(ii) If a request does not specify a form for producing electronically stored information, a
party must produce it in a form or forms in which it is ordinarily maintained or in a
reasonably usable form or forms; and
(iii) A party need not produce the same electronically stored information in more than one
form.
Consistent with these principles, the Court orders Plaintiffs to produce the requested information
in a reasonably usable form within 14 days.
The second issue questions the completeness of Plaintiffs’ production of documents from
the Daugherty litigation. Defendants claim that a March 6, 2012, deposition called the

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completeness of Plaintiffs’ Daugherty production into question when Plaintiffs’ counsel used
four unproduced Daugherty documents during a deposition. [Docket No. 163 at 4.] Plaintiffs
respond by asserting that three of the documents contain the same information that is contained
in other produced Daugherty documents although numbered differently, and the fourth document
was a transmittal e-mail that they inadvertently failed to produce. [Docket No. 166 at 4–5.]
Plaintiffs also assert that they never told Defendants that they “intended to use all documents
obtained in Daugherty, because all of those documents are not relevant to this case.” [Id. at
2–3.]
Plaintiffs’ position is somewhat inconsistent. Plaintiffs claim that they did not produce
Daugherty documents that were irrelevant, but then found some of the unproduced Daugherty
documents relevant enough to use during a deposition. Plaintiffs’ use of the documents during a
deposition undercuts their contention that the documents lack relevance, and supports
Defendants’ position that any additional documents that may have been withheld must also be
produced.
Nonetheless, considering the substance of the information in the unproduced documents
and the totality of the Daugherty documents produced, Defendants have not been prejudiced. In
fact, Defendants fail to explain how these documents are so significant to this case that
nonproduction is prejudicial. Additionally, the record does not plainly demonstrate that
Plaintiffs acted willfully or in bad faith, the number of documents withheld appears to be
minimal, Plaintiffs believed the documents were already in Defendants’ possession [Docket No.
166 at 5], and the importance of the documents is questionable. Therefore, sanctions are
inappropriate.

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However, if Plaintiffs have not already produced these documents, they shall do so within
14 days. The Court further notes that Defendants were permitted until April 9, 2012, to conduct
certain discovery regarding class members and their claims. [Docket No. 147 at 3.] That
deadline has passed and if Defendants need additional time to conduct discovery, they may make
a prompt motion requesting such relief.
Dated: 04/26/2012
_______________________________
Tim A. Baker
United States Magistrate Judge
Southern District of Indiana

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Copies to:
G. Douglas Abrams
ITTENBACH JOHNSON TRETTIN & KOELLER
[e-mail]
Kevin W. Betz
BETZ & BLEVINS
[e-mail]
Sandra L. Blevins
BETZ & ASSOCIATES
[e-mail]
Craig L. Briskin
MEHRI & SKALET, PLLC
[e-mail]
Jenny R. Buchheit
ICE MILLER LLP
[e-mail]
Daniel K. Burke
HOOVER HULL LLP
[e-mail]
Aaron D. Charfoos
KIRKLAND & ELLIS LLP
[e-mail]
Adam Clay
INDIANA ATTORNEY GENERAL
[e-mail]
John B. Drummy
KIGHTLINGER & GRAY
[e-mail]
Benjamin C. Ellis
BETZ & BLEVINS
[e-mail]

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Wendy Netter Epstein
KIRKLAND & ELLIS LLP
[e-mail]
Jason L. Fulk
HOOVER HULL LLP
[e-mail]
Melanie E. Harris
ICE MILLER LLP
[e-mail]
Thomas J. Henderson
HENDERSON LAW FIRM PLLC
[e-mail]
Zachary D. Holmstead
KIRKLAND & ELLIS
[e-mail]
Anna May Howard
SEVERNS & STINSON LAW FIRM
[e-mail]
Andrew W. Hull
HOOVER HULL LLP
[e-mail]
John F. Ittenbach
ITTENBACH JOHNSON TRETTIN & KOELLER
[e-mail]
Robert M. Kelso
KIGHTLINGER & GRAY
[e-mail]
Robert M. Koeller
ITTENBACH JOHNSON TRETTIN & KOELLER
[e-mail]
Laurie E. Martin
HOOVER HULL LLP
[e-mail]

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Steven D. McCormick
KIRLAND & ELLIS LLP
[e-mail]
Judith S. Okenfuss
ICE MILLER LLP
[e-mail]
Martin L. Roth
KIRKLAND & ELLIS LLP
[e-mail]
Scott Richard Severns
SEVERNS & ASSOCIATES
[e-mail]
Anne M. Sidrys
KIRKLAND & ELLIS LLP
[e-mail]
Steven A. Skalet
MEHRI & SKALET, PLLC
[e-mail]
Diana M. Watral
KIRKLAND & ELLIS LLP
[e-mail]
L. Alan Whaley
ICE MILLER LLP
[e-mail]
Michael Wroblewski
KIGHTLINGER & GRAY
[e-mail]
Michael A. Wukmer
ICE MILLER LLP
[e-mail]

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