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IN RE SULFURIC ACID ANTITRUST LITIGATION

August 26, 2005.

In Re SULFURIC ACID ANTITRUST LITIGATION.


The opinion of the court was delivered by: JEFFREY COLE, Magistrate Judge

MEMORANDUM OPINION AND ORDER

INTRODUCTION

This is a multi-district, antitrust case involving allegations that the defendants conspired to raise, fix, maintain or stabilize the price of sulfuric acid in the United States in violation of Section 1 of the Sherman Act, 15 U.S.C. § 1. Plaintiffs filed a consolidated amended class action complaint on September 5, 2003, and then added Koch and Marsulex as defendants when they filed their second amended consolidated complaint on May 24, 2004. On July 1, 2005, the day discovery closed, plaintiffs moved to compel Koch to answer outstanding interrogatories and to compel Marsulex to produce Sharon Dubeau and Doug Cadwell for depositions.*fn1

  Plaintiffs have moved to compel defendants, Koch Industries, Inc. ("Koch") and Marsulex, Inc. ("Marsulex"), to comply with certain outstanding discovery requests. The defendants contend that they have complied or that the requests are otherwise improper. For the reasons that follow, the motion is granted in part and denied in part.*fn2

  ANALYSIS

  I

  Koch's Responses to Plaintiffs' Interrogatories

  Koch submitted its answers and objections to plaintiffs' first set of interrogatories in late November 2004. Plaintiffs were troubled by several of the responses, including some where Koch referred plaintiffs generally to the documents it would be producing. (Plaintiffs' Exhibit K). Following consultation among the parties, it was agreed by mid-December 2004 that Koch would supplement certain responses that plaintiffs felt were inadequate. (Plaintiffs' Exhibit L). On June 24, 2005, Koch served its supplemental response to the first set of interrogatories. (Plaintiffs' Exhibit M). On July 1, 2005, plaintiff filed the instant motion to compel, complaining that:
1) In its supplemental response to interrogatory # 9(b), "Koch has failed to provide any information as to why various of its plants reduced production at various times as indicated in its response to Interior # 9(a)."
2) Koch has improperly invoked Rule 33(d) of the Federal Rules of Civil Procedure to answer many of plaintiffs' interrogatories, without identifying which documents Koch contends contain the answer to plaintiffs' interrogatories.
(Plaintiffs' Motion and Supporting Memorandum to Compel, at 8). A

  Interrogatory 9

  In reviewing a claim that an answer to an interrogatory is not responsive or is incomplete, the initial focus is on the question, not the answer, for on the question you ask depends the answer you get. "Putting the wrong question is not likely to beget right answers even in law." Vanston Bond Holders Prot. Comm. v. Green, 329 U.S. 156, 170 (1946) (Frankfurter, J., concurring). Plaintiffs have not pointed to any interrogatory that requested an explanation of the reasons why Koch reduced production of sulfuric acid in its plants at various times. Interrogatory 9(b) surely did not. It asked for "the annual volume of each different grade, strength or type of sulfuric acid produced or stored for each year of the relevant time period." (Plaintiffs' Exhibit K). In its supplemental response, Koch listed the total "throughput" for each of its facilities during the putative class period in eleven tables. This would seem a suitable response since the interrogatory does not request any explanation for the reduction in volume at the various plants. Similarly, Interrogatory 9(a) does not address reductions in volume or the reasons therefor, but simply seeks the various grades of sulfuric acid Koch produced.*fn3

  The motion to compel does not mention interrogatories 9(c) or 9(d), even though they seem slightly more to the point, as they request:
c) The date(s) you ceased producing or reduced production of sulfuric acid or any specific grade, strength or type of sulfuric acid; and
d) If your answer to sub-part c) of this interrogatory indicates that you reduced or ceased manufacturing sulfuric acid at any of your facilities, please state all reasons that you ceased production of sulfuric acid or any grade, strength or type of sulfuric acid. (Plaintiffs' Exhibit M, at 3) (Emphasis supplied).
  Neither interrogatory 9(c) nor 9(d) required any explanation of the reasons for the reduction in sulfuric acid production; each merely asked for an explanation of the reasons for the cessation of sulfuric acid production. (Plaintiffs' Exhibit K, at 11; Plaintiffs' Exhibit M, at 3) (Emphasis supplied). In response to interrogatory 9(c), Koch listed the dates it operated — and ceased to operate — each facility. (Id., at 12). The dates when production was reduced may be garnered from the tables Koch submitted in response to interrogatory 9(b). In response to interrogatory 9(d), Koch explained the reasons for the cessation of production at each of its former plants. (Id., at 12-14). Nor does the correspondence of plaintiffs' counsel ask for an explanation for any reductions in production: "I told you that we need to know which plants closed or decreased production as opposed to simply being sold." (Plaintiffs' Reply in Support of their Motion to Compel, at 6) (Emphasis supplied).

  The letter's author may have had in mind the question of why Koch decreased production at certain of its facilities, but if so, it was not properly communicated in the letter, any more than it was in the interrogatories. Lawyers are not endowed with the gift of prophecy or clairvoyance. Ballard v. Cit. Cas. Co., 196 F.2d 96, 102 (7th Cir. 1952). They cannot crawl into their adversary's minds. Cf. Posner, Overcoming Law, 276 (1995). For better or worse, the American system is an adversarial one, and while lawyers are constrained quite appropriately by a strict set of ethical rules, they have no obligation to assist an opponent in establishing claims. F.E.L. Publications v. Catholic Bishop of Chicago, 1989 WL 100006 *3 (N.D.Ill. Aug. 22, 1989); Korman v. Shull, 184 F.Supp. 928, 936 (W.D.Mich. 1960). Consequently, the defendants were only obligated to answer the questions that were asked, and were not required to guess that information beyond that which was specified was being sought. In the instant case, the answers to the questions were not shrewdly calculated to evade; they were direct responses to direct questions. The law requires nothing more.

  B

  Interrogatories 2, 3, ...


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