Ruppert et al v. Alliant Energy Cash Balance Pension Plan

Filing 13

ORDER signed by Judge Rudolph T Randa on 02/24/2010 granting 1 Motion to Quash Subpoena; denying 2 Motion to Compel; denying 4 Motion to Seal. In the absence of an additional motion to seal, filed on or before 03/05/2010, the Clerk of Court is directed to unseal Docket Nos. 6 and 7 (Exhibits 1 and 4 to Docket No. 3). (cc: all counsel) (Koll, J)

UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF WISCONSIN

In the Matter of Subpoenas to Wisconsin E n erg y Corporation and the Wisconsin E n e rg y Corporation Retirement Account Plan

L A W R E N C E G. RUPPERT, et al., P l a i n t iffs , C a s e No. 10-MC-7 -vsA L L IA N T ENERGY CASH BALANCE P E N S IO N PLAN, Defendant.

D E C IS IO N AND ORDER

T h is matter comes before the Court on a motion to quash nonparty subpoenas issued to Wisconsin Energy Corporation and Wisconsin Energy Corporation Retirement Account P lan (collectively, "WE"). The subpoenas were initiated by plaintiffs' counsel in a case cu rr en tly pending in the Western District of Wisconsin, Ruppert, et al. v. Alliant Energy Cash B a la n ce Pension Plan, No. 3:08-CV-00127-bbc (W.D. Wis.). On February 18, the Court d enied the plaintiffs' motion to transfer to the Western District, but invited WE to file a mo tio n for a protective order in the Western District. WE declined, so the Court will proceed to resolve the instant motion. WE also requested a hearing, but the Court finds that a hearing is unnecessary. For the reasons that follow, WE's motion to quash is granted.

T h e Court may quash or modify a subpoena if it subjects a person to undue burden. F e d . R. Civ. P. 45(c)(3)(A)(iv). The Seventh Circuit applies a "relative hardship test," co n s id erin g whether the burden of compliance would exceed the benefit of production of the m ate rials sought. Northwestern Memorial Hosp. v. Ashcroft, 362 F.3d 923, 927, 933 (7th Cir. 2 0 0 4 ). Additionally, the Court may consider whether the subpoena seeks discovery that is "u n reaso n ab ly cumulative or duplicative, or is obtainable from some other source that is more con v eni en t, less burdensome, or less expensive." Fed. R. Civ. P. 26(b)(2). Non-parties "are n o t treated exactly like parties in the discovery context, and the possibility of mere relevance m ay not be enough; rather, non-parties are entitled to somewhat greater protection." P a tter s o n v. Burge, No. 03 C 4433, 2005 WL 43240, *1 (N.D. Ill. Jan. 6, 2005). WE is the s p o n s o r and administrator of the WE Plan, an ERISA-governed defined benefit pension plan. W E is not a party to the Western District litigation, but WE is the defendant in a case cu rr en tly pending in the Eastern District before Judge Adelman, Downes v. Wisconsin Energy C o r p o ra tio n Retirement Account Plan, Case No. 09-C-0637 (E.D. Wis.) The WE Plan, just lik e the defendant in the Western District case (Alliant Energy Cash Balance Plan), is a "cash b alan ce" pension plan. According to the plaintiffs, the WE Plan and the Alliant Plan, along w ith the S.C. Johnson & Son, Inc. ("SCJ") Plan and the JohnsonDiversy, Inc. ("JDI") Plan, are the only four plans which utilize a trust-return based interest crediting rate. T h e subpoenas at issue seek stochastic modeling reports, which plaintiffs hope to use in support of a motion for summary judgment in the Western District case. Stochastic

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mo d elin g is a sophisticated probability tool used for determining, among other things, future p o rtfo lio returns. More specifically, the subpoenas request the following: A ll documents and electronically stored information concerning th e use or potential use of stochastic modeling for any purpose related to the WE Plan, including but not limited to: (1) co n d u ctin g asset-liability studies; (2) considering potential ch an g es in asset allocation; (3) evaluating options with respect to changing plan design features; (4) assessing impacts relating to a possible freeze or termination of the Plan; (5) estimating or p ro jectin g (a) anticipated future interest credits (or "Indexing R ates") and/or (b) future asset returns for (i) funding, (ii) acco u n tin g or (iii) any other purpose. W E argues that the subpoenas are unduly burdensome. WE estimates that it would co s t in excess of $1,000,000 to respond to these subpoenas. Docket 1, Tab E, Declaration of Ian Morrison. Plaintiffs scoff at WE's claims of undue burden, but offer no reason to d isb eliev e WE's estimates. WE also argues that the information on stochastic modeling is irrelev an t to the Western District case and, in any event, is cumulative of evidence already collected by the Ruppert plaintiffs from other sources. According to WE, the Ruppert su b p o enas are really an end-run around the discovery restrictions imposed by Judge Adelman in Downes v. WE, Case No. 09-C-637 (E.D. Wis.) Plaintiffs claim that the uniqueness of the interest crediting rate formula used by these p lan s establishes the relevance of the information sought. In a similar case currently pending b ef o r e Judge Stadtmueller, Thompson, et al. v. Ret. Plan for Employees of S.C. Johnson & S o n s, Inc., No. 2:07-CV-1047-JPS (E.D. Wis.), plaintiffs offered evidence pertaining to prelitig atio n stochastic modeling that was performed with respect to the SCJ Plan, the JDI Plan, an d the Alliant Plan. Plaintiffs want to do the same in the Western District but wish to add

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in fo rm atio n about the WE Plan's stochastic modeling. This begs the question of why ev id en ce from the plan at issue (Alliant) and corroborating evidence from the other two plans (JD I and SCJ) aren't good enough for the Western District litigation. WE's substantial b u rd en of compliance far exceeds the marginal benefit of this cumulative information. P lain tiffs claim that their request "can be largely satisfied by producing a mere handful o f easily retrieved documents." However, when WE attempted to resolve the parties' d i ffer en c es along these lines, they were rebuffed. D. 9-1, 9-2. There seems to be some d i sco n n e ct between the broadness of the subpoenas as written on the one hand, and plaintiffs' insisten ce that they only want a "core set of documents" on the other. The Court considered th e possibility of narrowing the scope of the subpoenas, but finds instead that the best ap p ro ach is to send the parties back to square one. The subpoenas, as written, are unduly b u rd en so me. If the plaintiffs truly want a narrower set of information than that requested in the subpoenas, the parties should be able to resolve their differences without court in ter v en tio n . Finally, plaintiffs moved to file two exhibits (D. 6 and 7) under seal pursuant to p ro tectiv e orders in Thompson and/or Ruppert. Even though the parties may designate certain d o cu men ts as "confidential" for purposes of discovery, the inquiry changes when documents are publicly filed. No court may grant a "virtual carte blanche to either party to seal whatever p o rtio n s of the record the party want[s] to seal. . . . The parties to a lawsuit are not the only p eop le who have a legitimate interest in the record compiled in a legal proceeding." Citizens F irs t Nat'l Bank of Princeton v. Cincinnati Ins. Co., 178 F.3d 943, 946 (7th Cir 1999).

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R ath er, courts must determine "what parts of the [record] contain material that ought, upon a neutral balancing of the relevant interests, be kept out of the public record." Id. A s id e from invoking a protective order, neither party offers any justification for filing t h e se exhibits under seal. The Court understands that the plaintiffs were merely acting in acco rd an ce with the protective orders, but if the defendants in Thompson and/or Ruppert hope to keep these exhibits (or any portion thereof) under seal, they must establish good cause for d o in g so. See Citizens First; Baxter Intern., Inc. v. Abbott Laboratories, 297 F.3d 544 (7th C ir. 2002); Grove Fresh Dist., Inc. v. Everfresh Juice Co., 24 F.3d 893 (7th Cir. 1994); G e n e r a l L.R. 79 (E.D. Wis.) The parties should consider submitting redacted versions acco mp an ied by a motion to seal. General L.R. 79, Committee Comment. N O W , THEREFORE, BASED ON THE FOREGOING, IT IS HEREBY O R D E R E D THAT: 1. 2. 3. 4. W E ' s motion to quash [D. 1] is GRANTED; P lain t iffs ' motion to compel [D. 2] is DENIED; P lain t iffs ' motion to file exhibits under seal [D. 4] is DENIED; and In the absence of an additional motion to seal, filed on or before March 5,

2 0 1 0 , the Clerk of Court is directed to unseal Docket Nos. 6 and 7 (Exhibits 1 and 4 to Docket N o . 3). D a ted at Milwaukee, Wisconsin, this 24th day of February, 2010. S O ORDERED, s / Rudolph T. Randa HON. RUDOLPH T. RANDA U.S. District Judge -5-