United States District Court, N.D. Illinois, Eastern Division
September 7, 2005.
In Re SULFURIC ACID ANTITRUST LITIGATION.
The opinion of the court was delivered by: DAVID COAR, District Judge
MEMORANDUM OPINION AND ORDER
During the course of discovery in this multi-district antitrust
suit, in which plaintiffs allege that the defendants engaged in a
conspiracy 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 deposed Kevin Cannon,
Kim Ross, and Tony DeSanti. The plaintiffs have characterized
them as "three of the most key witnesses in this litigation." I
previously rejected plaintiffs' arguments in support of an
additional deposition of Mr. DeSanti. Mr. DeSanti, who has
retired from defendant Falconbridge, lives in Canada, and is
beyond the defendants' control and the plaintiffs' subpoena
power. Plaintiffs have, accordingly, withdrawn that portion of
their motion. (Reply in Support of Plaintiffs' Motion to Compel
Deposition Testimony, at 6). Plaintiffs have resolved the issues
regarding Mr. Cannon's deposition with Mr. Cannon's counsel and
have withdrawn that portion of their motion as moot. (Reply in
Support of Plaintiffs' Motion to Compel Deposition Testimony, at
1 n. 1). That leaves Kim Ross, who was deposed in mid-April 2005
for almost 17 hours.
Despite having deposed Mr. Ross so extensively, the plaintiffs'
motion insists that Mr. Ross must be deposed again so that he can
decipher his handwritten journal entries and notes, which
according to plaintiffs, were taken concurrently with
"anti-competitive and collusive meeting and events at issue in
this case." According to the plaintiffs, the handwritten notes
produced by the Noranda defendants ran into the hundreds of
pages. (Plaintiffs' Motion to Compel Further Deposition
Testimony, at 3, 8). The notes had been produced by December of
2004, if not a good deal earlier.*fn1 Because of their
claimed criticality to the plaintiffs' case and the absence of
the evidence in any other form, the plaintiffs argue that it is
essential that they be allowed to take a supplemental deposition,
limited to four hours and 30 to 50 pages of notes, which would be
provided in advance of the renewed deposition. For the reasons
discussed below, plaintiffs' motion is denied.
The Previous Deposition of Kim Ross
Plaintiffs deposed Mr. Ross on April 14 and 15, 2005, in
Toronto, Canada. Mr. Ross has been in the employ of the Noranda
defendants for nearly 15 years and had the day-to-day
responsibility for the sale of sulfuric acid. He helped create
the joint venture among the Noranda defendants and was president
of Noranda Dupont LLC from 1998 to 2001. By agreement of counsel,
Mr. Ross's deposition exceeded indeed, more than doubled the
one-day, seven-hour time limit set by Rule 30(d)(2), Federal
Rules of Civil Procedure. Mr. Ross's deposition ran for about
eight hours on April 14th and eight hours and forty-five
minutes on April 15th. On the first day, plaintiffs began
their examination of Mr. Ross at 9:33 a.m., broke for lunch at
12:25 p.m. (Ross Deposition. at 7, 125), and continued from 1:25
to 6:42 p.m. (Deposition of Ross, at 126, 301). The sessions on the second day
ran from 9:49 a.m. to 12:54 p.m. (Ross Deposition. at 313, 432),
and from 2:05 p.m. until 7:45 p.m. (Ross Deposition at 433, 631).
The record makes clear that the issue of the illegibility of
Mr. Ross's notes and how to prioritize the time allotted to deal
with that issue and the myriad of others that would comprise the
deposition had been considered by plaintiffs' counsel. On the
morning of the first day of the deposition, she asked Mr. Ross to
decipher certain notes that she thought significant:
Plaintiffs' counsel: Okay, Could you for the record
read to me your notes as best you can into the
Defendants' counsel: Which notes?
Plaintiffs' counsel: These notes.
Defendants' counsel: All these notes?
Plaintiffs' counsel: Yes.
Defendants' counsel: You want him to read what's on
Plaintiffs' counsel: Yes. Unless you want to if you
have another way to do it. If you want to transcribe
it for me with his direction, that's okay, too, and
we don't have to waste time on the record. I just
want to make sure that we can read his writing.
Defendants' counsel: Why don't we consider that
option at lunch?
Plaintiffs' counsel: Okay. All right. Because what I
want to do is I want to make sure that I'm not that
I can read his handwriting, and the only way to do
that is to get him to either read it or transcribe it
Defendants' counsel: Okay. We'll consider that at
Plaintiffs' counsel: Okay.
(Ross Deposition. at 124-25). When the deposition resumed after lunch, neither the
plaintiffs' nor the defendants' counsel brought up the subject of
Mr. Ross's notes. The plaintiffs' counsel proceeded with
questioning, and did not mention the issue the rest of that
afternoon or the next day, until 7:34 p.m., when the deposition
The Videographer: This concludes today's proceedings
in the deposition of Kim Ross. The number of tapes
used today was four, in total for two days, eight.
We're going off the video record at the time is
Plaintiffs' counsel: David, I just want to put a
statement on the record. We had I had yesterday I
had said I had some handwritten notes that I believe
were Mr. Ross's but I wasn't sure and I couldn't read
the handwriting on them, and I asked you if you
wanted him to read them on the record or whether we
could we could get them transcribed and save the
time for him reading on the record, and you had told
me today that you wanted them read on the record.
Defendants' counsel: Or I wanted you to cover them on
Plaintiffs' counsel: Right. And since we're out of
time, where unless you want to reconsider
transcribing them, we are reserving our right to ask
him to come back to translate these these notes.
Defendants' counsel: You don't have a right to ask
him to come back. You had two full days. You had 14
hours of examination. You could have asked him to
review or translate those notes, like you have the
other notes that you used during the course. You made
the choice as to what to cover, you and your counsel.
* * *
Defendants' counsel: Well, as you know, you're
entitled to one day. We gave you two days without
fight fighting over it as a matter of
accommodation. You're not entitled to another day.
You've known about Mr. Ross. You've had his documents
for months and months and months. You could have
chosen what to cover with him. It shouldn't come to
any surprise to you that I disagree that you covered
your time appropriately. I think you could have
covered all this in one day, frankly. And we will not
produce Mr. Ross again without court order and we'll
vigorously oppose any efforts that you might make to
Plaintiffs' counsel: The other thing I just was going
to add about the notes is that I just found out the
middle of the day today that that you were not
agreeing to transcribe them. But also, I can't ask Mr. Ross questions about
them if I can't read them, and I can't read a lot of
them. So it's you know, I think you should
reconsider your position on transcribing them.
Defendants' counsel: Well, with respect to the notes,
I told you yesterday that you should cover any notes
with him that you wanted to cover in his deposition.
Plaintiffs' counsel: Well, I don't what to I don't
know whether I want to ask him about them if I can't
read them. That's the problem.
Defendants' counsel: Right.
Plaintiffs' counsel: It makes the process of
selecting documents in preparing for this deposition
rather impossible to do if you can't read the notes.
And I believe Mr. Ross kept extensive notes over a
very lengthy period of time and we were not able to
prepare for the deposition without being able to
interpret all his notes.
Defendants' counsel: Well, you've had the notes for
probably more than a year, certainly in most cases a
year and a half. You never you never made a request
to me in advance of this deposition with respect to
these notes or interpreting them.
(Ross Dep. at 626-27, 629-31).
Activity Following the Depositions
On May 26, 2005, the plaintiffs, without the court approval
required by Rule 30(a)(2)(B), served a notice for a second
deposition of Mr. Ross purportedly "pursuant to Rule 30(b) of the
Federal Rules of Civil Procedure." The notice advised that the
scope of questions at the further deposition would not be limited
to the "ascertainment of the text the witness wrote in various
handwritten notes produced in discovery," but would include, in
addition, "matters arising out of the content of such handwritten
notes." (Plaintiffs' Motion to Compel Further Deposition
Testimony, Ex. A) (Emphasis supplied).
On June 6, 2005, counsel for the Noranda defendants responded
to the notice with a letter formally objecting to the notice on
the grounds that it was "contrary to the Federal Rules of Civil
Procedure," as well as "prior agreements between counsel." (Noranda Defendants'
Opposition to Plaintiffs' Motion to Compel, Ex. 6). Plaintiffs
did not reply to this letter. Nearly a month later, however, on
July 1st the day discovery closed they filed the instant
"Motion To Compel Further Deposition Testimony From Kim Ross,
Kevin Cannon and Tony DeSanti Re: Handwritten Notes." This was
one of a miscellany of discovery motions filed by the plaintiffs
on that day.
The Plaintiffs' Deposition Notices Violated Rule 30(a)(2)(B)
Under Fed.R.Civ.P. 30(a)(2)(B):
(2) A party must obtain leave of court, which shall
be granted to the extent consistent with the
principles stated in Rule 26(b)(2), if the person to
be examined is confined in prison or if, without the
written stipulation of the parties,
* * *
(B) the person to be examined already has been
deposed in the case;
* * *
The rule is quite clear and quite simple. Because the plaintiffs
issued their notice for a second deposition of Mr. Ross without
first seeking leave of the court, the notice was invalid under
the Rule. This should come as no surprise to the plaintiffs, as
they have, in this case, refused to submit to certain of
defendants' deposition notices on identical grounds.
(Plaintiffs' Response to the Noranda Defendants' Motion to
Compel Rule 30(b)(6) Depositions of All Named Plaintiffs, at
3-5). Just as the defendants' attempt to take additional
depositions without court permission was disallowed, see In re
Sulfuric Acid Antitrust Litigation, No. 03 C 4576/MDL No. 1536,
2005 WL 1994105 (N.D.Ill. Aug. 19, 2005), so too is the
plaintiffs' attempted evasion of the Rule. Curiously, plaintiffs submit that they are actually following
Rule 30(a)(2)(B)'s requirements, because their motion seeks leave
to proceed with the additional deposition. But the present
compliance only came after the plaintiffs violated the Rule, by
noticing the second depositions without first seeking court
approval. Those notices, as a result, were invalid, and
accordingly, the defendants' objections to them were valid. In
re Sulfuric Acid Antitrust Litigation, No. 03 C 4576/MDL No.
1536, 2005 WL 1994105 (N.D.Ill. Aug. 19, 2005). The plaintiffs'
characterization of their motion as a motion in conformity with
Rule 30(a)(2)(B) leaves them in a rather awkward position: the
motion was filed on July 1, 2005. Judge Coar's Standing Order
requires that "[a]ll discovery requests/notices should be
initiated in time for responses to be completed (within the time
set forth in the Federal Rules) by the discovery cut-off date."
(Supplemental Standing Order On Pretrial Procedures In Civil
Cases, ¶ (A)(6)). In addition, under Local Rule 16.1, Standing
Order Establishing Pretrial Procedure, ¶ 4, "discovery must be
completed before the discovery closing date. Discovery
requested before the discovery closing date, but not scheduled
for completion before the discovery closing date, does not comply
with this order." (Emphasis in original).
Obviously, if plaintiffs truly were as they now argue
seeking leave under Rule 30(a)(2)(B) to take a successive
deposition of Mr. Ross, by doing so on the day discovery closed,
they violated both Judge Coar's Standing Order and the Local
Rule, because it would have been impossible to complete or even
schedule the depositions by the discovery deadline. Thus, the
motion must be denied. See Sofo v. Pan-American Life Insurance.
Co., 13 F.3d 239, 242 (7th Cir. 1994) (court did not abuse
its discretion by granting defendants a protective order where
plaintiff failed to request discovery until nine days before the
cutoff, violating Standing Order); Coram Health Care Corp. of
Illinois v. MCI Worldcom Communications, Inc., No. 01 C 1096,
2001 WL 1467681, *3 (N.D.Ill. Nov. 15, 2001) (where plaintiffs' conduct violated this court's standing order,
defendants were under no obligation to respond); Fahey v. Creo
Products, Inc., No. 96 C 5709, 1998 WL 474114, at *2 (N.D.Ill.
Aug. 4, 1998). See also Tomeenginharia E. Transportes, Ltda. v.
Malki, 1999 WL 1027543 (N.D.Ill. 1999) (Document request
attached to a notice of deposition was untimely where the date
for compliance under the Federal Rules of Civil Procedure was
after the date set by the district court for the deposition).
The plaintiffs have another version of their motion to compel.
It is to be found, for the first time in their reply brief, where
it is suggested plaintiffs are not seeking an additional
deposition of Mr. Ross, but merely additional time to depose
him under Fed.R.Civ.P. 30(d)(2). "Objections to this startling
thesis crowd the mind." Posner, Overcoming Law, 211 (1995).
The invalid deposition notice (i.e., served without permission)
was served on May 26, 2005 pursuant to Rule 30(b) the
subsection dealing with successive depositions not 30(d)(2),
the subsection dealing with duration of depositions.
(Plaintiffs' Motion to Compel Further Deposition Testimony, Ex.
A). Beyond this revealing designation, the plaintiffs' attempt to
distinguish an "additional deposition" from "additional time" to
take a deposition, under the circumstances of this case,
subordinates reality to semantics. The Supreme Court has warned
time and again against precisely this sort of inversion,
insisting that "the logic of words should yield to the logic of
realities." DiSanto v. Pennsylvania, 273 U.S. 34, 43
(1927).*fn2 So has the Seventh Circuit. See Schmidt v.
Ottawa Medical Center, 322 F.3d 461, 464 (7th Cir. 2003); Mueller Co. v. FTC, 323 F.2d 44, 49 (7th Cir.
1963). Cf. Pernice v. City of Chicago, 237 F.3d 783, 786
(7th Cir. 2001) ("[A]rtful pleading cannot remove us entirely
from reality."); Zapata Hermanos Sucesores, S.A. v. Hearthside
Baking, 313 F.3d 385, 389 (7th Cir. 2002) (improper to
attempt to circumvent applicable rules by use of labels).
The inescapable reality in this case is that Mr. Ross's almost
17-hour, two day deposition ended in mid-April 2005. The
plaintiffs now want another go at him, and not merely to have him
decipher the text of his notes, but to have him testify about
"matters arising out of the content" of his notes. The rules do
not allow for endless depositions, the modern form of trial by
ordeal. It does not matter whether the plaintiffs choose to call
their motion one for additional time or an additional deposition.
The result is the same.
In every deposition, choices have to be made about the subject
matter to be covered. The 7-hour rule necessitates, especially in
complex cases, that almost all depositions will be
under-inclusive. The examiner therefore, must be selective and
carefully decide how to apportion her time.*fn3 If, as we
are now told, the notes were so critical to the case, then other
areas of inquiry had to be subordinated to having Mr. Ross
interpret his notes or at least a sampling of them a the
plaintiffs now say they will be satisfied with if they are allowed to resume the deposition.*fn4 The
plaintiffs' counsel clearly understood this, as evidenced by her
questioning on the morning of the first day of the deposition.
She chose not to resume the questioning after the luncheon recess
and to put the matter off until 7:34 p.m. the next day, after she
had finished her second day of questioning. No one forced her to
do so. She made a conscious decision of how to proceed with her
own deposition. As the defendant's counsel put it in refusing to
allow the deposition, in effect, to continue: "You made the
choice as to what to cover, you and your counsel." He was
absolutely right, and the plaintiffs are bound by the tactical
decisions they made months before the deposition began.
There is some suggestion that all that occurred was really
attributable to the defendants' failure to have returned from the
luncheon recess and dealt with the question of Mr. Ross's reading
of his notes. Perhaps the defendants' lawyer should have broached
the issue when the deposition resumed. But he did not, and that
omission did not justify the plaintiffs' lawyer's post-luncheon
decision to continue the deposition for a day and a half and
then, only at the end, insist that she had the right to continue
on to deal with a topic that she consciously abandoned. It was up
to her to seek a resolution of the problem of Mr. Ross's notes
when the deposition resumed on April 14 especially since the
problem was the plaintiffs' not the defendants'. The very premise
of the "he failed to live up to his obligations" argument is
incompatible with the basic principle that a lawyer's
responsibilities to her client cannot be shifted to someone else,
and those responsibilities most assuredly do not depend upon the
inactions or actions of one's adversary. Under the plaintiffs' view of things and this is apparently
the argument, because if it is not, it has no meaning when the
defense counsel breached his "promise" to raise the issue of the
notes following the first luncheon recess, that was a sufficient
excuse for the plaintiffs to conduct the balance of the
deposition as though the problem did not exist, to wait six weeks
before impermissibly noticing further depositions without court
approval, and wait another five weeks before filing a motion to
compel the improperly noticed depositions and to do so on the
day discovery closed. If this is truly the defendants' argument,
it is rejected.
The plaintiffs were aware shortly after Mr. Ross's deposition
concluded on April 15th that more time was needed if they
were to get the notes transcribed. One would have assumed they
would have taken action. They didn't. Instead, they waited four
and a half months, until August 31st two months after
discovery closed, to raise the theory that all that was sought
was "additional time" to take a deposition under Rule 30(d)(2),
not permission to take "an additional deposition" under Rule
30(a)(2)(B). Apart from its substantive invalidity, the argument,
coming as it did in a reply brief, comes too late. Wright v.
United States, 139 F.3d 551 (7th Cir. 1998). "A reply brief
is for replying" not for raising essentially new matters that
could have been advanced in the opening brief." Hussein v.
Oshkosh Motor Truck Company, 816 F.2d 348, 360 (7th Cir.
1987) (Posner, J., concurring). See also United States v.
Portis, 542 F.2d 414, 418 (7th Cir. 1976) (condemning
"gamesmanship in getting the last word"). Because plaintiffs did
not raise their Rule 30(d)(2) argument until their reply
memorandum, it is waived. Carter v. Tennant Co., 383 F.3d 673,
679 (7th Cir. 2004). B
The Plaintiffs Have Unduly Delayed Filing the Motion to Compel
and Addressing the Issue of the Handwritten Notes
"Defer no time, delays have dangerous ends." Henry VI, Part 1
(1592), act III, sc. ii, 1.33.*fn5
In litigation, delays
need not be deliberate to be dangerous; even when they are merely
the product of inattention, they can lead to undesired results.
Brosted v. Unum Life Insurance. Co. of America, ___ F.3d ___,
2005 WL 2043820 (7th Cir. 2005).*fn6
"Courts have a
legitimate interest in ensuring that parties abide by scheduling
orders to ensure prompt and orderly litigation." Campania
Management Co., Inc. v. Rooks, Pitts & Poust, 290 F.3d 843
(7th Cir. 2002). And, if a party has unduly delayed in filing
a motion for an order compelling discovery, a court may conclude
that the motion is untimely. Banks v. CBOCS West, Inc., 2004 WL
723767 at *1 (N.D.Ill. 2004) (Zagel, J.); 8A Charles Alan Wright,
Arthur R. Miller, and Richard L. Marcus, Federal Practice and
Procedure, § 2285 (2nd ed. 1994).
Here, after two extensions of the discovery deadline, Judge
Coar was adamant that no further extensions would be allowed in
his order of March 21, 2005. Plaintiffs, armed with documents
produced perhaps a year earlier, deposed Mr. Ross on April
14th and 15th. But even after having Mr. Ross's handwritten notes for all that time, plaintiffs claim that they
had not been able adequately to prepare for the depositions due
to the illegibility of many of those notes.
It was apparent to the plaintiffs from the moment they received
the notes in discovery that there was a problem in deciphering
them. They obtained an agreement to extend the deposition from
seven to more than fourteen hours for Mr. Ross, but apparently
never raised the issue of the notes with defense counsel. Whether
they factored the issue into their calculation of how much time
should be allotted for each topic of inquiry is uncertain. But if
they did not, they cannot blame their adversaries for balking
over an issue that should have been factored into the plaintiffs'
calculations. Having agreed to two-day deposition, the plaintiffs
were not at liberty to use all their time on matters other than
the notes and then insist that they had been somehow deprived of
their right to depose Mr. Ross in a meaningful way and that they
had the "right" to redepose him, or in the parlance of the reply
brief, to have "additional time" for the deposition.
The present motion, however interpreted, is a breach of an
agreement reached with the defendants. All the relevant facts,
including the indecipherability of the notes, were known to the
plaintiffs. Nothing has changed that would warrant granting more
time to the plaintiffs, even if that could be done without
violating Judge Coar's standing order and Local Rule 16.1.
The present motion is, in addition, unduly late. The plaintiffs
had many, many months to assess the question of the illegibility
of Mr. Ross's notes, and they could have sought transcriptions of
the notes before the depositions. Whether the defendants would
have agreed is a different question; but we will never know how
they would have reacted since the plaintiffs never raised the
question with defense counsel. Thus, by the time of the
deposition, the die had been cast, and the plaintiffs had to
decide whether to use a segment of the time for translating the
notes or relinquish that topic in favor of others. They chose the
latter. From the time Mr. Ross's deposition ended on April 15th,
the plaintiffs did nothing about the issue of the notes, not that
week, not that month. Instead, they waited some six weeks until
May 26, 2005, when only about a month of discovery remained, to
serve an invalid deposition notice on him in violation of Rule
30(a)(2)(B). Following the defense objection on June 6th,
which they knew was certain to come, the plaintiffs did nothing
for nearly four more weeks. This delay is indefensible and
inexplicable. Only on the last day of discovery did they file the
"Motion to Compel the Further Deposition Testimony From Kim Ross,
Kevin Cannon, and Tony DeSanti Re Handwritten Notes." It is
unfathomable what plaintiffs hoped to accomplish by waiting until
that point, unless they thought they would obtain the practical
equivalent of a discovery extension which Judge Coar had
already indicated would not be allowed.
The timing of plaintiffs' motion is all the more curious when
viewed with the balance of their motion practice in this case. On
the day discovery closed, July 1st, plaintiffs filed three
motions to compel discovery: a motion directed at GAC; a combined
motion addressing several distinct discovery problems plaintiffs
had separately with Noranda defendants, with Koch, and with
Marsulex; and the instant motion seeking the three additional
depositions. The various discovery problems these motions sought
to address were unrelated, save for having occurred in the same
case. More importantly, the various discovery problems occurred
at different points in the litigation. GAC, for example, began
objecting to plaintiffs' discovery requests as early as October
of 2004; plaintiffs threatened a motion to compel regarding that
matter shortly thereafter. The threats persisted apace with
The plaintiffs' problems with Koch did not come to a head until
June of 2005, when Koch filed its supplemental responses. Here,
as already discussed, things unraveled by April 15, 2005. And Mr.
DeSanti's deposition which was originally a topic of this
motion, concluded on December 21, 2004. Yet, for some unexplained reason, plaintiffs chose July 1st as the
best day to address all these unrelated discovery issues, which
occurred weeks and even months apart. The only explanation for
the concurrence of these motions on the day discovery closed is
that plaintiffs, having delayed too long and planned too little,
found themselves out of time, and out of options. This is viewing
the situation in a light most favorable to the plaintiffs. A
cynic might think that all of this was a calculated decision
designed to effect another extension of the discovery deadline.
It does not matter, however, which view one takes, the result is
the same. The motion is denied.
For the foregoing reasons, the plaintiffs' "Motion to Compel
the Further Deposition Testimony From Kim Ross, Kevin Cannon, and
Tony DeSanti Re Handwritten Notes" [# 166] is DENIED. The
defendants are awarded reasonable attorneys' fees pursuant to
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