The opinion of the court was delivered by: JEFFREY COLE, Magistrate Judge
MEMORANDUM OPINION AND ORDER
INTRODUCTION AND FACTUAL BACKGROUND
This is the fourth opinion in connection with three
multi-faceted discovery motions brought by the plaintiffs against
various defendants.*fn1 The facts are these: Following the
filing of the consolidated amended class action complaint on
September 5, 2003, charging a violation of § 1 of the Sherman
Act, plaintiffs served sixty-six document requests and ten
interrogatories on Noranda, Inc., Falconbridge, Ltd. and
Norfalco, LLC ("the Noranda defendants"). The requests sought
specified classes of documents created after January 1, 1988, the
date the complaint charged as the commencement of the conspiracy,
and earlier documents that related to the events within the
period of the charged conspiracy.
The Noranda defendants resisted production on the theory that
the statute of limitations under Section 4 of the Clayton Act was
four years, while the request covered a fifteen-year period.
There ensued negotiations in October, 2003, culminating in an
exchange of letters purporting to document the discussions.
(Response of the Noranda Defendants in Opposition, App. I, Ex.
A). An arrangement of sorts grew out of all this: only post-January 1, 1988 documents would be
produced (for now), and the plaintiffs reserved the right to make
additional requests for earlier documents depending in what the
initial production revealed. In a letter in late October, 2003,
to plaintiffs' counsel, David Gustman, lead counsel for the
Noranda defendants, expressed his understanding of what had
occurred during these discussions. While it differed from the
plaintiffs' perception of those meetings, at least somewhat, Mr.
Gustman did promise, "[h]owever, [to] entertain additional
narrow, specific requests to search for documents after our
initial search and production." (October 29, 2003 letter, at 7).
As will be seen, this was "a promise to the ear to be broken to
the hope, a teasing illusion like a munificent bequest in a
pauper's will." Edwards v. California, 314 U.S. 160, 186 (1941)
(Jackson, J., concurring).
Thereafter, the Noranda defense team reviewed 350 boxes that
had been kept since 1998 in a Noranda storage facility in
Toronto, Canada. Ultimately, the Noranda defendants produced
between 840,000 to 1,000,000 pages of documents-depending on
whose estimate is to be credited. This was a "rolling," somewhat
sporadic production, in which the documents were released in
stages as they were reviewed. (See Response of the Noranda
Defendants in Opposition, at 4-5) ("Response"); Plaintiffs'
Reply Memorandum, at 5 n. 1. ("Reply").
The first 250,000 pages were produced as early as February of
2004 (Response at 4 and Ex. B, ¶ 15), although Bates numbers
591,997 through 593,239 were not produced until June 7, 2005.
(Response at 4 n. 7; Reply at 5 n. 1).*fn2 The dates and
numbers are significant: by February, 2004, the plaintiffs had
been provided with a 1988 marketing report the 1988 "Prime
Report" Bates numbers 100,696-715 which, according to plaintiffs is "one of the most
important pieces of evidence produced by the Noranda Defendants
in this case." (Plaintiffs' Motion and Supporting Memorandum at
2; Ex. C). The Report suggested that "the Noranda Defendants had
hatched their scheme to convince voluntary sulfuric acid
producers to stop producing sulfuric acid at least at as early as
1985." (Plaintiffs' Motion and Supporting Memorandum, at 2). It
purportedly set forth Noranda's agreements and attempts to reach
agreements with sulfuric acid producers to close down their
plants and purchase sulfuric acid from Noranda.
Within "months" of its production by the defendants in February
2004, the 1988 Report was found by the plaintiffs during their
"intensive document review." (Reply at 5). It is uncertain
whether by the Spring or early Summer of 2004, the plaintiffs
knew about the 1988 Report, which referenced and updated an
earlier Prime Report dated August 18, 1987. (Id. at 1,
7-12).*fn3 What is certain is that by February 2005, the
plaintiffs were aware of the existence of the 1987 Report, for
they specifically asked for it in a letter to the defendants'
counsel. That request was rebuffed in late February, 2005. In
early May 2005, the plaintiffs served a second document request
specifically requesting pre-January 1, 1988 Prime Reports and two
mid-1980s contracts between Noranda and Delta, and Noranda and
On June 6, 2005, the Noranda defendants served their responses
and objections to that documents request and to the second set of
interrogatories, which was also served on May 6th. Plaintiffs
served a third set of interrogatories on the Noranda defendants
on May 31, 2005; responses came on June 30, 2005. On July 1, 2005, without compliance with the certification
requirements of at least Local Rule 37.2, plaintiffs moved to
compel the Noranda defendants to produce several pre-1988
documents and to answer certain interrogatories.
According to the Noranda defendants, in October, 2003, they
made an agreement with the plaintiffs that pre-January 1, 1988
documents would not have to be produced, and that the plaintiffs
have welched on the deal. And, the Noranda defendants contend,
even if there were no agreement, granting the plaintiffs' belated
motion would require re-review of the 350 boxes of documents
that, they say, is a monumental and costly task that could have
easily been avoided had the plaintiffs acted with any reasonable
dispatch rather than waiting until the day discovery closed to
take action. Finally, the defendants claim, not only would the
effort involved in the review be unduly burdensome, it is not
worth the candle.
The plaintiffs deny the existence of any agreement to limit
their discovery requests to the class period, and they submit
that the Noranda defendants have failed to comply with Rule
34(b), Federal Rules of Civil Procedure, which requires that "a
party who produces documents for inspection shall produce them as
they are kept in the usual course of business or shall organize
and label them to correspond with the categories in the request."
The plaintiffs contend that this noncompliance mandates that the
Noranda defendants and not the plaintiffs bear the burden of
review of the documents. Finally, the motion contends that the
Noranda defendants' responses to the third set of interrogatories
are inadequate in that they refer plaintiffs generally to the
entire document production in the case, in violation of Rule
33(d), Federal Rules of Civil Procedure. ANALYSIS
THE NORANDA DEFENDANTS' MOTION TO STRIKE THE MOTION TO COMPEL
The motion to strike is based on the plaintiffs' claimed
noncompliance with Rule 37(a)(2)(A), Federal Rules of Civil
Procedure and Local Rule 37.2. The former provides that a motion
to compel "must include a certification that the movant has in
good faith conferred or attempted to confer with the person or
party failing to make the discovery in an effort to secure the
information or material without court action." Local Rule 37.2
makes clear that the court shall refuse to hear discovery
motions under Rules 26-37:
unless the motion includes a statement (1) that after
consultation in person or by telephone and good faith
attempts to resolve differences they are unable to
reach an accord, or (2) counsel's attempts to engage
in such consultation were unsuccessful due to no
fault of counsel's. Where the consultation occurred,
this statement shall recite, in addition, the date,
time and place of such conference, and the names of
all parties participating therein. Where counsel was
unsuccessful in engaging in such consultation, the
statement shall recite the efforts made by counsel to
engage in consultation.
Paragraph 31 of the plaintiffs' motion to compel has
the following certification.
Plaintiffs counsel herein certifies that there were
numerous consultations with various defense counsel
at meetings, depositions and by written
correspondence pursuant to Local Rule 37.2 and
Fed.R.Civ.P. 37(d) in a good faith effort to secure
the discovery responses, documents, and depositions
at issue. During these consultations, counsel for the
defendants maintained their objections to complying
with the discovery obligations discussed in this
(Plaintiffs' Motion and Supporting Memorandum to Compel, at
11). Thus, the argument that the motion does not "contain? a
certification or any other statement that Plaintiffs have
attempted in good faith to confer with the Noranda Defendants
regarding the issues set forth in these motions" is mistaken.
(Motion to Strike Plaintiffs' Motions to Compel, at 4). Whether
the certificate is sufficient is a different question. The motion to compel plainly does not comply with the
requirements of Local Rule 37.2. However, the motion to strike
does not question the sufficiency of the certification, only its
existence. Therefore, the issue of sufficiency is forfeited.
United States v. Johnson, 415 F.3d 728
, 730 (7th Cir.
2005). But even if it were not, the motion to strike would be
The Seventh Circuit has recently stressed the importance of
compliance with Local Rules. See FTC v. Bay Area Business
Council, Inc., ___ F.3d ___, 2005 WL 2036251 (7th Cir. Aug.
25, 2005). But Local Rules have their limitations, and like all
rules, they must have sufficient flexibility and must be applied
to accomplish the ends of justice and "not bury it beneath the
pressure of their own weight." Joseph Story, Miscellaneous
Writings, 210 (1852). For that reason, courts have broad
discretion to determine how and when to enforce local rules,
Waldridge v. American Hoechst Corp., 24 F.3d 918, 923 (7th Cir.
1994), and they have the inherent authority to decide when a
departure from their Local Rules should be excused. Somlyo v. J.
Lu-Rob Enterprises, 932 F.2d 1043, 1048 (2nd Cir. 1991).
Cf. Brengettey v. Horton, ___ F.3d ___, 2005 WL 2155656
(7th Cir. 2005) ("noncompliance with a court's local rules
does not create a jurisdictional bar for the district court or
for us."). An appropriate circumstance for excusing
non-compliance with rules is when compliance would have been an
exercise in otiosity.
The doctrine of futility*fn4 is as applicable in the
context of Rule 37 and Local Rule 37.2 as it is in any other.
See Armstrong v. Amstead Industries, Inc., No. 01 C 2963, 2004
WL 1497779, *3 (N.D.Ill. July 2, 2004) (Moran, J.) (accepting
plaintiffs' contention that a meeting between the parties would have been fruitless); Royal Maccabees Life Insurance Co. v.
Malachinski, No. 96 C 6135, 2001 WL 290308, *18 (N.D.Ill. Mar.
20, 2001) (Guzman, J.) ("Taking into account defendant's prior
conduct we find that plaintiff adequately complied with Rule 37's
certification requirement and Local Rule 37.2."); Fidelity Nat.
Title Insurance Co. of New York, 2002 WL 1433584, *3 (N.D.Ill.
2002) (Conlon, J.) (noting failure to explain the manner in which
further discussions between the parties would have promoted Local
Rule 37.2's purpose).
The following events demonstrate the appropriateness of the
doctrine's application in this case. On February 8, 2005, Mary
Jane Edelson Fait, counsel for the plaintiffs, wrote to Mr.
Gustman requesting certain specifically identified documents
including the 1987 Prime Report (and earlier Reports) and the
contracts between Noranda and Delta and Noranda and Essex.
((Plaintiffs' Motion and Supporting Memorandum to Compel, Ex.
II, Letter of February 8, 2005, at 1-2, ¶¶ 1, 5-6). Ms. Fait
indicated that the plaintiffs hoped to obtain the documents "in
the most expedient manner possible." (Id. at 4).
Notwithstanding his promise to "entertain additional narrow,
specific requests to search for documents after our initial
search and production," on February 28, 2005, Mr. Gustman
responded by letter and refused to produce the pre-1988 documents
since, in his view, they went "far beyond our mutual agreement in
Fall 2003 about what we [sic] documents we were going to search
for and produce." His letter went on to day that Ms. Fait had
"confirmed this agreement in [her] letter dated November 14,
2003." (Plaintiffs' Motion and Supporting Memorandum to Compel,
Ex. H at 1). According to Mr. Gustman, the requests for pre-1988
documents "would require [the Noranda defendants] to go back
through more than five hundred boxes of documents and tens of
thousands of emails. . . ." (Id.).
An exchange between counsel at the deposition in April, 2005,
of Steve Skurnac further reveals the polarity and intractability of the parties' positions on the
dispute over the production of the pre-1988 documents. When
counsel for the plaintiff requested a copy of the 1984 contract
between Noranda and Delta one of the documents sought by the
present motion this exchange occurred:
Ms. Fait: . . . didn't we ask you for that contract
in a letter? It was a letter that
Mr. Gustman: I don't know whether you asked us for
Ms. Fait: Okay. I believe we have. I'm almost certain
that it was one of the items that we asked you for
Mr. Gustman: We have given you what we have.
Ms. Fait: a mid `80s contract between Noranda and
Delta. Now you are making objections to my questions
based on the fact that this is referring to another
contract, a contract which I have asked for and
haven't received yet.
Mr. Gustman: I disagree with your characterizations.
I disagree with everything you said, and I don't know
what the nature of the question is. So if you want to
put a question, go ahead and put a question out.
Ms. Fait: Okay. Well, on the record, we need to have
this previous contract between Noranda and Delta and
Mr. Gustman: And on the record, we agreed to produce
documents beginning January 1, 1988, and this case
relates to the time period January 1988, and I think
you are wasting our time going back to contracts from
`84. And, frankly, I wish you would just move on
because you're running out of time.
* * *
Ms. Fait: And that's my point, none of us will know
how the revenue-sharing provisions were different
until we see a copy of that contract.
Mr. Gustman: Let me just state for the record, you
didn't ask for a copy. We have written agreements
with you that say we only had to look for documents
beginning January 1, 1988, and that's what we