Murillo v. Kohl's Corporation et al

Filing 58

ORDER signed by Judge J P Stadtmueller on 9/8/16 granting in part and denying in part 38 Plaintiffs' Motion to Compel. See Order. (cc: all counsel) (nm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
MIGUEL MURILLO,
MICHAEL BAEHMAN, and
BONNIE BAEHMAN
Case No. 16-CV-196-JPS
Plaintiffs,
v.
KOHL’S CORPORATION and
KOHL’S DEPARTMENT STORES, INC.,

ORDER

Defendants.
Before the Court is the plaintiffs’ motion to compel certain discovery
pursuant to Federal Rules of Civil Procedure 26 and 37(a). (Docket #38). In
their motion, the plaintiffs argue that the Court should compel: (1) the
production of various documents related to the processes by which the
defendants’ establish merchandise prices;1 (2) the production of documents
that contain the defendants’ nationwide transactional and sales data;2 (3) the
testimony of a Rule 30(b)(6) witness(s) regarding the defendants’ data
retention and IT systems;3 and (4) the production of documents that have
been involved and/or produced in related legal proceedings against the

1

This request corresponds to requests nos. 7-9 of the Plaintiffs’ First Set of
Requests for Production Documents. (Docket #40, Ex. 1 at 8).
2

This request corresponds to requests nos. 12-20 of the Plaintiffs’ First Set of
Requests for Production Documents. (Docket #40, Ex. 1 at 8-10).
3

This request corresponds to the topics nos. 1-3 of the Plaintiff’s Rule
30(b)96) Notice of Videotaped Deposition. (Docket #40, Ex. 2 at 7-8).

defendants in California.4 (See generally Docket #39). The plaintiffs certify
that—pursuant to Federal Rule of Civil Procedure 37(a)(1)—they have
properly met and conferred with opposing counsel regarding these discovery
issues prior to seeking intervention of the Court. (Docket #39 at 24).5
The plaintiffs’ motion to compel is now fully briefed. (Docket #38, #39,
#41, #45). As explained in further detail below, the plaintiff’s motion will be
granted in part and denied in part.
1.

BACKGROUND
On February 18, 2016, the plaintiffs filed a complaint challenging the

defendants’ purportedly false and misleading marketing practices. (Docket
#1); see also (Docket #14) (first amended complaint). Specifically, the plaintiffs
allege that the defendants have engaged in a pervasive, nationwide scheme
4

These proceedings include that of Russell v. Kohl’s Dep’t Stores, Inc., No.
5:15-CV-1143-RGK-SP (C.D. Cal filed June 11, 2015) and Chowning v. Kohl’s Dep’t
Stores, Inc., 2:15-CV-8673-RGK-SP (C.D. Cal filed Nov. 5, 2015). For the sake of
clarity, the Court notes that the plaintiffs’ brief states the case number of Chowning
is “3:15-CV-1624-JAH-WVG.” (Docket #39 at 11). The brief also states that Chowning
is pending in the Central District of California. (Docket #39 at 11). According to the
Court’s search, however, Ms. Chowning’s case in the Central District of California
(Case No. 2:15-CV-8673-RGK-SP) arose out of Ms. Chowning’s case in the Southern
District of California (Case No. 3:15-CV-8673-JAH-WVG) (Docket #20) (granting the
defendant’s motion to transfer venue). Thus, despite the plaintiffs’ error in the case
name, the Court will consistently refer to the Chowning case by its active
designation: Chowning, Case No. 2:15-CV-8673-RGK-SP.
5

The defendants argue that the plaintiffs have failed to meet their
obligations under the federal and local rules to meet-and-confer. (Docket #41 at 67). Aside from the parties’ dispute about national transactional and sales data, the
Court is satisfied, based upon its review of the documents submitted in connection
with the pending motion, that the parties were both on fair notice—and had
sufficiently conferred—regarding the discovery disputes underlying this motion
prior to its filing. (Docket #43, Ex. 5 at 3; Exs. 7-9). Accordingly, the Court finds no
error in the meet and confer process in which the parties engaged and will
withhold from the adjudication the motion on this basis.

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by which they misrepresent the existence, nature, and amount of price
discounts applied to “original” or “regular” item prices. (Docket #14 ¶¶ 1-9,
25-29). By fabricating or inflating their “original” prices, the plaintiff claim
the defendants’ “sales” or “discounts” are false and deceive consumers into
believing that they get a better deal than what they actually are. (Docket #14
¶¶ 1-9, 25-29). The plaintiffs also claim that the defendants also falsely
convey to consumers the impression that their prices are significantly lower
than those regularly charged for those products by the defendants or other
retailers. (Docket #14 ¶ 27). As a result of this purportedly deceptive
marketing scheme, the plaintiffs claim to have purchased merchandise, or
paid more for merchandise, than they would have absent deceptive discount
price comparisons. (Docket #14 ¶ 26).
The plaintiffs’ amended complaint alleges that they seek to represent
two putative Classes of consumers consisting of: (1) “[a]ll individuals who
purchased one or more items from the defendants advertised at a discount
of 30% or more from a stated original ‘item price’ any time during the
relevant statute of limitations period…”; and (2) “[a]ll individuals who
purchased one or more items from Defendants within the State of Wisconsin
advertised at a discount of 30% or more from a stated original ‘item price’
any time during the relevant statute of limitations period.…” (Docket #14
¶¶ 77-89). The plaintiffs bring claims for unjust enrichment and violations of
the Wisconsin Deceptive Trade Practices Act, Wis. Stat. §100.18, et seq.
(“WDTPA”), violations of the consumer fraud laws of various states, and the
Declaratory Judgment Act, 28 U.S.C. §2201(a). (Docket #14 ¶¶ 90-129).
Though the defendants moved to dismiss the plaintiffs’ amended complaint
on both substantive and jurisdictional grounds (Docket #17), the Court

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denied that motion on June 24, 2016. (Docket #36). Now ripe for adjudication
is the plaintiffs’ motion to compel, filed on July 13, 2016. (Docket #38).
2.

LEGAL STANDARD
In accordance with Federal Rule of Civil Procedure 26,
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 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). For the purpose of discovery, relevancy is construed
broadly to encompass “any matter that bears on, or that reasonably could
lead to other matter[s] that could bear on, any issue that is or may be in the
case.” Chavez v. Daimler Chrysler, 206 F.R.D. 615, 619 (S.D. Ind. 2002) (internal
citations omitted). Moreover, “[r]elevant information need not be admissible
at the trial if the discovery appears reasonably calculated to lead to the
discovery of admissible evidence.” Id. Although the burden of demonstrating
relevance is on the party seeking discovery, once relevance has been shown,
it is the objecting party’s obligation “to show why a particular discovery
request is improper.” Sandoval v. Bridge Terminal Trans., Inc., No. 14-CV-639,
2015 WL 3650644, at *1 (E.D. Wis. June 10, 2015).
The Court has broad discretion to grant or deny motions to compel
discovery under Rule 37(a) of the Federal Rules of Civil Procedure. See FED .
R. CIV . P. 26(c); Sattar v. Motorola, Inc., 138 F.3d 1164, 1171 (7th Cir. 1998)
(“[D]istrict courts have broad discretion in matters related to discovery.”).
Moreover, courts must limit discovery if the discovery sought is

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unreasonably cumulative or duplicative, the party seeking discovery has had
ample opportunity to obtain the information by discovery in the action, or
the burden or expense of the proposed discovery outweighs its likely
benefit. FED . R. CIV . P. 26(b)(2)(C)(i)-(iii). Indeed, courts must keep in
mind that it is also their duty to “prevent ‘fishing expeditions’ or an
undirected rummaging…for evidence of some unknown wrongdoing.”
Cuomo v. Clearing House Ass’n, L.L.C., 557 U.S. 519, 531 (2009). Therefore, in
ruling on a motion to compel, “a district court should independently
determine the proper course of discovery based upon the arguments of the
parties.” Gile v. United Airlines, Inc., 95 F.3d 492, 496 (7th Cir. 1996).
3.

DISCOVERY DISPUTES
Before the Court are four discovery disputes. (See generally Docket

#39). As highlighted above, the plaintiffs argue that the Court should compel:
(1) the production of various documents related to the processes by which
the defendants establish their pricing policies; (2) the production of
documents that contain the defendants’ national transactional and sales data;
(3) the testimony of a Rule 30(b)(6) witness(s) regarding the defendants’ data
and IT systems; and (4) the production of documents involved in related
legal proceedings involving the defendants in California. The Court will
address each of these issues in turn.
3.1

Pricing Policy Documents

The plaintiffs seek to compel documents concerning the processes by
which the defendants establish their “regular,” “original,” and “sale” prices.
(Docket #39 at 13-16; Docket #40, Ex. 1 at 8). To that end, the plaintiffs have
requested documents in the form of:

Page 5 of 19

7.

Marketing studies, research, consultant reports, sales,
and other data [the defendants] used to support [their]
claim that the Merchandise was sold at a bona fide
dollar or percentage Discount from a bona fide
“regular” or “original” item price.

8.

Documents sufficient to show any analysis or focus
group studies concerning the pricing, labeling,
marketing, and advertising of the Merchandise.

9.

Documents that [the defendants] relied on, including
any study, report, evaluation, assessment, analysis,
and/or similar document, concerning consumer
behavior or psychology or decision making, relating to
purchasing items priced at an actual or purported
Discount, including [the defendants’] Merchandise
priced or sold at a Discount.

(Docket #40, Ex. 1 at 8).
Though the defendants attempt to parse these questions into oblivion
by arguing that the questions are vague, confusing, and unclear (Docket #40,
Ex. 3 at 6-8), the Court finds the aforementioned requests relevant, clear, and
appropriate.6 In other words, Kohls’ objections tend toward obfuscation

6

Though, the Court does acknowledge that the term “Merchandise” as
employed in request no. 9 is duplicative of the definition provided by plaintiffs in
their initial request. (Docket #40, Ex. 1 at 4) (defining “Merchandise” as “items
priced, advertised, marketed, offered for sale, or sold by [the defendants] at a stated
Discount.”).

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rather than genuine argumentation.7 See Cunningham v. Smithkline Beecham,
255 F.R.D. 474, 478 (N.D. Ind. 2009) (“[An] objecting party must show with
specificity that the request is improper. That burden cannot be met by a
reflexive invocation of the same baseless, often abused litany that the
requested discovery is vague, ambiguous, overly broad, unduly burdensome
or that it is neither relevant nor reasonably calculated to lead to the discovery
of admissible evidence.”) (internal citations omitted) (internal quotation
marks omitted). Regardless, in the context of their brief filed in response to
this motion, the defendants have represented to the Court that they have
produced numerous documents, indeed all of the documents in their
possession, that are responsive to these three requests. (Docket #41 at 15-16)
(“Put simply, Defendants do not have any other documents to produce.”).
The real issue embodied in this portion of the plaintiffs’ motion to
compel is the scope of the defendants’ duty to respond to requests nos. 7-9.
On the one hand, the defendants claim that they have produced all

7

For example, the defendants object to the use of the word “claim” in the
context of request no. 7. (Docket #40, Ex. 3 at 7-8). “Claim” is a transitive verb with
few, specific meanings, including “to assert in the face of possible contradiction.”
S e e Claim Definition, M I R I A M -W E B S T E R L E A R N E R ’ S D I C T I O N A R Y ,
http://www.merriam-webster.com/dictionary/claim (last visited Aug. 25, 2016).
Though the word “claim” certainly is a word with legal import, the Court finds the
defendants all-too-common strategy of obfuscating common language in the face
of a straightforward question to be unpersuasive. Cf. U.S. Commodity Futures
Trading Comm'n v. Trade Exch. Network Ltd., 61 F. Supp. 3d 1, 8 (D.D.C. 2014)
(“Finally, the Court feels that defendants' claims not to understand what ‘sufficient’
means in the context of the request are deliberate obfuscation.”). This is particularly
so given the defendants’ clear assertion, in their answer, that they deny any
wrongdoing with respect to the establishment and advertisement of “original” or
“regular” prices. (Docket #37 at 12) (“Defendants deny any implicit allegation in
Paragraph 51 that Kohl’s “regular” or “original” prices were deceptive and/or
misleading.”).

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of the documents in their possession that are responsive to request nos. 7-9
“for each of the products alleged in the First Amendment Complaint at the Kohl’s
store at which Plaintiffs alleged they purchased the product going back as far as
the product has been available at those respective store[s].…” (Docket #41 at
15) (emphasis added). On the other hand, the plaintiffs argue that the
defendants should not limit their responses to only those “products alleged”
in the amended complaint, but rather should respond to the requests with
respect to all of Kohls’ merchandise. (Docket #39 at 12-16).
At bottom, therefore, there appears to be an unreconciled dispute over
the nature of the pricing scheme at Kohls. For their part, the plaintiffs claim
that certain discovery responses already made by Kohls (but not provided
to the Court) reveal that “there exists a single nationwide pricing policy
governing the application of ‘original’ and ‘regular’ retail prices.” (Docket
#39 at 14) (citing a document labeled “KLS-LE00001-51,” which was not
provided as an attachment to their declaration). Thus, according to the
plaintiffs’ theory, to the extent there is a single, nationwide pricing
policy—which extends across all of the defendants’ products, not just those
listed in the amended complaint—the defendants should not be allowed to
limit their responses to those products alleged in the amended complaint. In
response, the defendants argue (also without citation to the record) that they
have explained to the plaintiffs’ counsel on numerous occasions that all
pricing decisions by the defendants are made “at the item level by each
individual buyer” and that these decisions vary from item to item and office
to office due to market differences. (Docket #41 at 17).

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Thus, there appears to be two opposing theories being advanced by
the parties. On the one hand, if the plaintiffs are correct that the defendants
operate a single, nationwide pricing policy governing the application of
“original” and “regular” retail prices, the defendants are indeed compelled
under the federal discovery rules to produce such documents insofar as they
are responsive to requests nos. 7-9. See Fed. R. Civ. P. 26(b)(1). However,
assuming the defendants have a legitimate basis in fact to deny the plaintiffs’
assertion that pricing policies are nationwide—and are instead made on a
product-specific basis—the Court will not compel the defendants to produce
any more documents than they have purportedly already tendered to the
plaintiffs. This is because the Court agrees with the defendants that
compelling the production of all documents responsive to requests nos. 7-9
with respect to all of Kohls’ products “priced, advertised, marketed, offered
for sale, or sold by Defendants at a Discount” would impose an undue and
disproportionate burden at this juncture of the litigation.
In any case, on the current state of the record, the Court concludes that
the most prudent exercise of discretion is to deny the plaintiffs’ motion to
compel additional documents responsive to requests nos. 7-9. The plaintiffs’
briefs, and attachments thereto, provide the Court with no support to refute
the defendants’ assertion that it maintains a product-centric marketing
policy. (Docket #45 at 14) (“Clearly, Kohls possesses internal documents and
related emails concerning its understanding of how its deceptive pricing
scheme effects consumers’ decision-making.…) (without citation). As officers
of the Court, the defendants have represented that they have produced all
documents responsive to requests nos. 7-9 insofar as they implement any
national pricing policies/training materials, etc. (Docket #41 at 15). If further

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factual development leads the parties to discover any contrary set of facts
from that which have been presented to the Court herein, the parties may
alert the Court of those developments in writing as they deem necessary.8
3.2

Transactional Sales Documents

Next, the plaintiffs ask the Court to compel transactional and sales
data from merchandise sold by the defendants across the country. (Docket
#39 at 16-20). However, the defendants argue that the plaintiffs have failed
to satisfy their meet and confer obligations under Federal Rule of Civil
Procedure 37 for this request. (Docket #41 at 6-7). Based on the admissions of
the parties in the context of their briefs, the Court agrees with the defendants
that the Court’s intervention regarding requests nos. 12-20 is premature and
will defer the resolution of the issue at this time.
Rule 37 provides that “[o]n notice to other parties…a party may move
for an order compelling disclosure or discovery. The motion must include a
certification that the movant has in good faith conferred or attempted to
confer with the person or party failing to make disclosure or discovery in an
effort to obtain it without court action.” FED . R. CIV . P. 37(a)(1). This meet and
confer requirement “serves to facilitate communication between the parties
while also reducing the potential costs of prematurely bringing a dispute

8

The Court does not find the plaintiffs’ citation to the defendants’ Rule 26(a)
obligations to affect this result. The defendants’ disclosure specifically states that
they intend to rely on “documents reflecting the regular, original, and sale prices
of the merchandise at issue in this case.” (Docket #24, Ex. 2 at 4). The merchandise
“at issue in this case” undisputedly includes the merchandise purchased by the
plaintiffs, for which discovery has already been produced. Moreover, in light of the
representations made by the defendants, the arguments/support provided by the
plaintiffs, and the potential burden to be placed on the defendants, the Court
concludes that compelling the production of documents responsive to requests nos.
7-9 with respect to each item sold by the defendants is inappropriate at this time.

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before the Court.” Milwaukee Elec. Tool Corp. v. Chervon N. Am., Inc., Case No.
14-CV-1289-JPS, 2015 WL 4393896, at *2 (E.D. Wis. July 16, 2015). Courts
have broad discretion in determining whether the moving party has satisfied
the meet and confer component of Rule 37(a)(1), Mintel Intern. Group, Ltd.
v. Neerghen, 2008 WL 4936745, *1 (N.D. Ill.2008), and, in making this
determination, courts consider the totality of the circumstances underlying
the motion, Cunningham, 255 F.R.D. at 478 (citing Patterson v. Avery Dennison
Corp., 281 F.3d 676, 681 (7th Cir. 2002)).
Here, the Court concludes that the plaintiffs have failed to satisfy their
obligation under Rule 37 with respect to requests nos. 12-20. According to the
plaintiffs themselves, as recently as July 6, 2016, they had provided the
defendants with a proposal to “prioritize and receive Class Period sales data
for all Wisconsin residents relating to the items of merchandise purchased by
Plaintiffs.” (Docket #39 at 12). Further, the plaintiffs propose that if class
certification is granted, they would receive from the defendants the
remainder of the nationwide sales data for all products for the certified Class.
(Docket #39 at 12). Under this scenario, the plaintiffs maintain that they
would be able to sufficiently present their damages methodology at trial with
a completed sales data set. (Docket #39 at 12). However, “[a]s of the date of
this motion, the plaintiffs had not received a response from the defendants
to their latest proposal.” (Docket #39 at 12).
In their opposition brief, the defendants do not address the plaintiffs’
July 6, 2016 proposal. (Docket #41 at 18-25). Instead, they put forth numerous
arguments in response as to why they should not be compelled to produce
documents responsive to requests nos. 12-20. (Docket #41 at 18-25).
Specifically, the defendants argue that the requests made by the plaintiffs are
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over broad, irrelevant, disproportionate, unnecessary, and unduly
burdensome.9 (Docket #41 at 18-25). However, in a footnote, the defendants
offer to “compromise” with the plaintiffs by providing “the nationwide sales
data for the products that it has provided the Wisconsin sales data.…[t]hat
is, those items that Plaintiffs actually identified in the First Amended
Complaint.” (Docket #41 at 25 n.4).
In sum, therefore, there appears to be fertile ground for “compromise”
among the parties to resolve this dispute without Court intervention. Indeed,
the plaintiffs appear to have filed this motion without receiving any response
from the defendants regarding their July 6, 2016 proposal. Accordingly, the
plaintiffs’ motion to compel with respect to requests nos. 12-20 will be
denied. If the parties, following their discussions pursuant to this Court’s
order, cannot resolve their dispute over the scope of discovery regarding
transactional and sales data, they may return to the Court upon certification
that they have satisfied their federal and local civil discovery obligations to
meet and confer..
3.3

Rule 30(b)(6) Deposition Testimony

Third, the plaintiffs asks the Court to compel the defendants to
produce a corporate witness pursuant Federal Rule of Civil Procedure
30(b)(6) to testify regarding certain IT systems and fields. (Docket #39 at 4).
This request corresponds to Topics Nos. 1-3 of the Rule 30(b)(6) Notice

9

The defendants submit that, in order to gather data on billions of
nationwide transactions, they would need multiple weeks, if not months, of two
full-time staff members running customized report programs. (Docket #41 at 22-23).
The amount of data gathered from this scale of reporting may exceed a terabyte of
information, requiring over 220 DVDs of storage. (Docket #41 at 23).

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served upon the defendants on May 23, 2016. (Docket #40 Ex. 2). Those topics
request testimony regarding:
1.

Data captured or collected at the point-of-sale from
purchasers of Merchandise, including Data collected
from customers who: (a) participate in Kohls’ customer
loyalty programs; (b) participate in the Yes2You
customer loyalty program; (c) participate at any other
loyalty program; (d) use a Kohls credit card when
making purchases; and (e) do not participate in any of
Kohls’ customer loyalty programs or use a Kohls credit
card;

2.

Data captured by Kohls at the point-of-sale of
Merchandise, including: (a) product description; (b)
SKU; (c) UPC number; (d) the price offered for sale, the
price sold, and the “regular,” “original,” clearance, and
sales prices of Merchandise; (e) whether a coupon was
used; and (f) whether any additional Discount was
applied to the Merchandise; and

3.

Data and databases which track and record the prices
for Merchandise, including: (a) the duration of time
(dates) for which any sales, promotion, or Discount was
in place for each item of Merchandise; (b) the product
description; (c) SKU; (d) UPC number; (e) the price
offered for sale, the price sold, and the “regular,”
“original,” clearance, and sales prices; and (f) the
method and length of time such Data is maintained by
Kohls.

(Docket #40, Ex. 2 at 7-8).
During the meet and confer process, the plaintiffs further clarified for
the defendants that they seek a witness to testify as to:
•

The specific means by which merchandise pricing and
sales data is captured (tracking of “regular,” “original,”
and sales prices on a daily basis);

•

The granularity of what is captured ([e.g.,] product
description, SKU, UPC);

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•

How it is captured (what data points are captured
relating to the “regular” price, sales price, and daily
price offered for sale) from the point-of-sale to…the
various databases that store this data…; and

•

What is captured when a customer uses cash, a Kohl’s
charge, a non-Kohl’s charge, and when a customer is a
Yes2You customer.

(Docket #39 at 5-6; Docket #43, Ex. 10 at 2). In addition, the plaintiffs
explained that they would like to understand, from an IT perspective:
•

How, and in what format, the data is stored and
maintained by each system (SQL, Access, etc.); and

•

The period of time such data is available (what is live,
nearline, archived), and how reports can be created or
generated by the relevant databases.

(Docket #39 at 6; Docket #43, Ex. 10 at 2).
The defendants have refused to produce a witness on the
aforementioned topics. (Docket #41). They argue that compelling a Rule
30(b)(6) witness to testify on these subjects would be duplicative of certain
depositions taken by the plaintiffs’ counsel in March of 2016 during previous
litigation before this Court. (Docket #41 at 8-9) (referencing Le v. Kohl’s Corp.,
Case No. 2:15-CV-1171-JPS (E.D. Wis. filed Sep. 30, 2015)). Moreover, the
defendants argue that: (1) the plaintiffs specifically agreed “not to seek a
corporate designee from Defendants as to the topics these witnesses
previously testified to;” and (2) in any case, the defendants are willing to
stipulate that, for ascertainability purposes, they are generally able to identify
customers that purchased products from their stores using a Kohl’s charge

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card or other credit card and received a discount of 30% or more over the
past five years.10 (Docket #41 at 8-12).
In response, the plaintiffs argue that compelling further corporate
testimony on the topics listed above is appropriate and necessary because the
defendants’ previous witnesses, Ms. Vranak and Ms. Serra, did not provide
adequate responses to the topics for which they were called upon to testify.
(Docket #45 at 14-17). The plaintiffs filed deposition testimony with the Court
tending to indicate that both the witnesses could not answer various
questions regarding Kohls’ pricing databases and the reports/data that they
generate and store. (Docket #45 at 14-17; Docket #46, Exs. 9-10). Moreover,
according to the plaintiffs, the defendants had not yet produced any
documentation relevant to the content of those depositions until after they
were taken. (Docket #45 at 16).
Based on the record before it, the Court will grant the plaintiffs’
motion to compel deposition testimony responsive to topics nos. 1-3. Because
the defendants’ witnesses, Ms. Vranak and Ms. Serra, were not able to testify
completely regarding the topics noticed, such testimony is appropriately
sought by plaintiffs. See Fed. R. Civ. P. 30(b)(6) (“The persons designated
must testify about information known or reasonably available to the
organization.”). The Court also grants the plaintiffs’ request on the basis that

10

The defendants also argue that the plaintiffs’ arguments in their opening
brief on this subject are skeletal and should be denied on this basis alone. Indeed,
the Court has the authority to deem arguments waived that have not been raised
or inadequately supported. See White Eagle Co-opinion Ass ‘n v. Conner, 553 F.3d 467,
476 n. 6 (7th Cir.2009). However, the Court concludes that the contents of the
plaintiffs’ opening brief and reply brief have sufficiently apprised the defendants
and the Court of the underlying circumstances and arguments surrounding this
discovery issue so as to justify the Court’s resolution of the matter.

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they now have in their possession the documents necessary to prepare for
said depositions. See, e.g., Trafton v. Rocketplane Kistler, Inc., No. 08-CV-99,
2009 WL 2251288, at *1 (E.D. Wis. July 22, 2009) (permitting additional
discovery where “several documents ha[d] not been disclosed” and thereby
hindering the plaintiffs’ “ability to take meaningful depositions”). The
plaintiffs’ motion to compel in this respect will thus be granted.
3.4

Documents and Testimony from Related Civil Actions

Finally, the plaintiffs move the Court to compel the production of
documents and testimony previously gathered and provided in Chowning
and Russell, two actions pending against the defendants in the Central
District of California. (Docket #39 at 15-17); Russell, No. 5:15-CV-1143-RGKSP; Chowning, 2:15-CV-8673-RGK-SP. Though Russell and Chowning concern
California residents, the plaintiffs here argue that such documents are
relevant because they concern precisely the same allegations of wrongful
conduct/harm as challenged herein. (Docket #39 at 16; Docket #45 at 14-15).
Though the defendants have expressly labeled this case a “copycat
consumer class action” (Docket #13 at 1), they nonetheless argue that the
documents produced in Chowning and Russell should not be compelled in
this matter because they are irrelevant (Docket #41 at 25-28). More
specifically, the defendants argue that the discovery involved in Chowning
and Russell are irrelevant because those actions involve: (1) plaintiffs who
lived in California; and (2) the application of California law. (Docket #41 at
25-28).
On the one hand, the Court agrees with the defendants that just
because information is produced in a similar lawsuit does not mean that
the same information is automatically discoverable in a separate law
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suit. See, e.g., Oklahoma, ex rel. Edmondson v. Tyson Foods, Inc., Inc., No.
05-CV-329-TCK-SAJ, 2006 WL 2862216, at *2 (N.D. Okla. Oct. 4, 2006)
(denying a motion to compel documents produced in a separate case based
on “the nature of the claims, the time when the critical events in each case
took place, and the precise involvement of the parties”). Nonetheless, under
the broad scope of discovery authorized under the Federal Rules, the Court
finds the documents and testimony produced in Chowning and Russell
relevant to the action now before this Court. See Alloc, Inc. v. Unilin Beheer
B.V., No. 03-CV-1266, 2006 WL 757871, at *5 (E.D. Wis. Mar. 24, 2006)
(granting the defendants’ motion to compel documents produced in a
parallel patent infringement case “to the extent that the documents and
depositions relate to the products at issue in the present case”); see also
E.E.O.C. v. Klockner H & K Machines, Inc., 168 F.R.D. 233, 235 (E.D. Wis. 1996)
(“A request for discovery ‘should be considered relevant if there is any
possibility that the information sought may be relevant to the subject matter
of the action.’”) (citing 8 WRIGHT

AND

MILLER, FEDERAL PRACTICE

AND

PROCEDURE § 2008 (1970)).
To be sure, the core allegations of fraud underlying the Chowning and
Russell actions are precisely the same as that which are alleged here: that the
defendants purportedly operate a nationwide price comparison scheme that
fabricates “original” or “regular” item prices and deceives consumers into
believing that they are getting a better deal for merchandise than what they
actually are. (See generally Docket #14); Russell, No. 5:15-CV-1143-RGK-SP,
Docket #14 ¶ 7; Chowning, 2:15-CV-8673-RGK-SP, Docket #44. And, these
allegations of fraud do not appear to be dependent on the location of the
plaintiff; rather, they are alleged to be “pervasive” and “nationwide.” (See
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Docket #14 ¶ 7) (“Kohl’s deceptive discount price comparison advertising
scheme is employed nationwide and is a long-running, pervasive,
continuous, and ongoing effort to dupe customers into thinking they’re
getting a good deal.”). To be sure, the legal bases of the claims underlying
Chowning, Russell, and the instant matter differ in their source. (See Docket
#14); Russell, No. 5:15-CV-1143-RGK-SP, Docket #14; Chowning, 2:15-CV-8673RGK-SP, Docket #44. However, in general, the consumer fraud causes of
action alleged, and underlying assertions of deceptive conduct needed to
support these claims, are, in the Court’s view, sufficiently similar so as to
render the documents produced in Chowning and Russell relevant. Compare
CAL. BUS. & PROFESS. CODE § 17200 (West) (prohibiting any “unlawful, unfair
or fraudulent” act or practice, as well as any “unfair, deceptive, untrue or
misleading” advertising) with CAL . CIV . CODE § 1770(a) (West) (prohibiting
“unfair methods of competition and unfair or deceptive acts or practices”)
and WIS. STAT. § 100.18 (West) (prohibiting advertisements that are “untrue,
deceptive, or misleading”). Accordingly, the plaintiffs’ motion to compel
discovery produced in Chowning and Russell will be granted.
4.

CONCLUSION
In sum, the Court concludes that the plaintiffs’ motion to compel will

be granted in part and denied in part. (Docket #38). On the one hand, the
motion will be granted insofar as the plaintiffs seek: (1) corporate testimony
from a Rule 30(b)(6) witness regarding Topics Nos. 1-3 (referenced above);
and (2) the production of documents and testimony from the Chowning and
Russell cases. On the other hand, the motion will be denied insofar as the
plaintiffs seek: (1) documents concerning the processes by which the
defendants establish their “regular,” “original,” and “sale” prices, i.e., those
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documents that correspond to requests nos. 7-9 of the Plaintiffs’ First Set of
Requests for Production Documents; and (2) documents containing national
transactional and sales data, i.e., those documents that correspond to requests
nos. 12-20 of the Plaintiffs’ First Set of Requests for Production of Documents.
Should the facts surrounding the production of such discovery change, the
parties may notify the Court in writing as they find appropriate and
necessary.
Accordingly,
IT IS ORDERED that the plaintiff’s motion to compel (Docket #38) be
and the same is hereby GRANTED in part insofar so it seeks: (1) corporate
testimony from a Rule 30(b)(6) witness regarding Topics Nos. 1-3 (as outlined
herein); and (2) the production of documents and testimony from the
Chowning and Russell cases; and DENIED in part insofar as it seeks: (1)
documents concerning the processes by which the defendants establish their
“regular,” “original,” and “sale” prices, i.e., those documents that correspond
to requests nos. 7-9 of the Plaintiffs’ First Set of Requests for Production
Documents; and (2) documents containing national transactional and sales
data, i.e., those documents that correspond to requests nos. 12-20 of the
Plaintiffs’ First Set of Requests for Production Documents.
Dated at Milwaukee, Wisconsin, this 8th day of September, 2016.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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