United States District Court, N.D. Illinois, Eastern Division
September 27, 2005.
In Re SULFURIC ACID ANTITRUST LITIGATION.
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
provided to you.
(Plaintiffs' Motion and Supporting Memorandum, Ex. F, Skurnac
Deposition. at 207-08, 209). Under the circumstances, the absence of perfect compliance with
the Rules' certification requirements is not a bar to
consideration of the motion as it relates to the pre-January 1,
1988 documents. The question then is whether the same
considerations make it appropriate to consider the motion to
compel as it relates to the interrogatories.
While the parties' submissions regarding the noncompliance with
Rule 37 and Local Rule 37.2 focus on the document requests far
more than on the interrogatories, the February exchange of
letters and the exchange at the Skurnac deposition show that a
meet and confer session regarding the interrogatories would have
been as unavailing as one would have been with regard to the
pre-January 1, 1988 documents.
THE PLAINTIFFS' ENTITLEMENT TO DOCUMENTS PREPARED PRIOR TO
JANUARY 1, 1988
The Plaintiffs' Demands For Pre-January 1, 1988 Documents And The
Noranda Defendants' Responses
In response to the plaintiffs' original document request the
Noranda defendants objected that the statute of limitations under
Section 4 of the Clayton Act was four years, while the request
covered a fifteen-year period. The parties met to discuss
Noranda's objections and thereafter exchanged lengthy letters.
(Response, App. I, Ex. A).*fn5
On October 29, 2003, Mr.
Gustman, wrote a 28-page single spaced letter to Ms. Fait. The letter had five topical headings under which
were discussed specific document requests or interrogatories. The
opening paragraph under the third heading, "Discussions Regarding
Noranda Defendants' Objections To Instructions," adverted to
instruction no. 1 of the documents request, which defined the
relevant time period for production as January 1, 1988, through
the date of the request. The request also sought all documents
"created or generated outside this period, but which contain
information concerning this period." The second paragraph said:
We indicated [at the meeting on October 16th]
that we will produce documents within the time period
alleged in the complaint, January 1988, through
January 16, 2003, which latter date is the outside
date for the class as alleged in the Consolidated
(October 29, 2003 letter, at 5).
Mr. Gustman acknowledged that plaintiffs had expressed the view
that, while they might agree to limit certain requests, that
"should not prejudice [plaintiffs'] right to ask for more
documents once the first production has been reviewed." He
reiterated the Noranda defendants' position that they "do not
agree with plaintiffs' position regarding document requests for
which we have agreed to undertake a search as outlined by these
negotiations." The letter went on to state that at the October
16th meeting, the Noranda defendants had "reiterated our
position that we generally want to only make one pass through the
Noranda Defendants' documents." He did agree, "[h]owever, [to]
entertain additional narrow, specific requests to search for
documents after our initial search and production." (October 29,
2003 letter, at 7).
Ms. Fait responded on November 14, 2003, with a 10-page single
spaced letter, which topically mirrored Mr. Gustman's letter. The first sentence under the
heading, "Discussions Regarding Noranda Defendants' Responses To
The Document Request," said that the "description of our
discussion [in the October 23rd letter] is incomplete."
(November 14, 2003 letter, at 3). While acknowledging the Noranda
defendants' "desire" to make only one pass-through of Noranda's
documents, Ms. Fait explicitly "reserve[d] [plaintiffs'] right to
request additional documents once we have reviewed Noranda's
initial production if further investigation becomes necessary."
(Id., at 3).
Thereafter, 350 boxes of documents were shipped to Noranda
defendants' Chicago counsel from Noranda's storage facility in
Toronto, where the documents had been stored for seven years,
following the 1998 formation of a joint venture between Noranda
and DuPont to market sulfuric acid. In addition, hundreds of
thousands of pages of emails that seemed relevant to sulfuric
acid sales in the United States in the period January 1, 1988
January 16, 2003 were reviewed. (Response, App. I, Ex. B,
Declaration of Wanda Vasquez, ¶ 5).*fn6
There Was No Agreement Between the Plaintiffs and the Noranda
Defendants That Production Would Be Limited To Post-January 1,
Mr. Gustman's recitation in his October, 2003 letter of the
Noranda defendants' position regarding production of pre-1988
documents did not create an agreement that production was
excused, for "[a] man cannot make evidence for himself by writing
a letter containing the statements that he wishes to prove" and
thereafter, "sending it to the party against whom he wishes to
prove the facts." A.B. Leach & Co. v. Peirson, 275 U.S. 120
, 128 (1927) (Holmes, J.). In any event,
that recitation was found to be "incomplete" by Ms. Fait. While
acknowledging that the initial run-through was to be only for the
post-January 1, 1988 period, she reiterated her position that the
plaintiffs could insist on production of documents from an
earlier period depending on what turned up a concept to which
Mr. Gustman was hostile and which did not fit with the Noranda
defendants' "desire" not to have to go through the task a second
time. Ms. Fait's response, while polite, was emphatic that she
did not much care, and she reserved the right to demand the very
thing Mr. Gustman "desire[d]" not to do.
The "reservation of rights" provision in the plaintiffs'
October 2003 letter is said not to count because it was "buried"
in a paragraph dealing with the production of documents from
smelters and thus, "arguably deals only with that topic."
(Response, at 3 n. 4). The argument is apparently not so much
that the Noranda defendants' lawyer missed the provision in
reading the letter, but either that Ms. Fait intended that the
reservation only apply to smelter documents or he was somehow
gulled by its placement into thinking that it did an apparent
application to letters of ejusdem generis, the principle of
statutory construction used to resolve ambiguity and uncertainty.
Under the principle, where general words follow an enumeration of
specific terms, the general words are read to apply only to other
items like those specifically enumerated. While the argument does
not employ the term, if it did not have that principle in mind,
it has no meaning.
Even in its proper context, the principle does not apply in the
absence of an enumeration or when the whole context dictates a
different conclusion than that the general term should be
understood as a reference to subjects akin to those specifically
enumerated. See Norfolk and Western Ry. Co. v. American Train
Dispatchers Association, 499 U.S. 117, 128 (1991); Garcia v.
United States, 469 U.S. 70, 74 (1984). Here, we are not concerned with the
construction of a statute, but with words in an exchange of
letters; not with a specific enumeration of items in a list, but
with two topics contained in two sentences responsive to the
identical topics mentioned in the defendants' October 2003
letter; and finally, not with inherent ambiguity, but with
undeniable clarity. Whatever else might be said about the
letters, it cannot be said that there was an agreement between
the parties that the Noranda defendants' production obligations
would be fully satisfied by production of post-January 1, 1988
documents. The letters reveal not a meeting of the minds, Baker
O'Neal Holdings v. Massey, 403 F.3d 485 (7th Cir. 2005), but
an expression of irreconcilable positions and a clash of
The Relevance and Claimed Importance of the Pre-January 1, 1988
In addition to the pre-1988 Prime Reports, which plaintiffs
contend will illumine Noranda's purpose in seeking agreements
with the sulfuric acid producers and will provide an interpretive
gloss to the factual statements in the 1988 Prime Report,
plaintiffs also seek two mid-1980s contracts between Noranda and
Delta, and Noranda and Essex, which were in effect until at least
1996. Three deposition witnesses have testified about the Delta
contract. That testimony is not exactly as plaintiffs
characterize it, but generally, two of the witnesses to whom
plaintiffs refer testified that the contracts in effect at the
time of the negotiation of the October 1989 contained a
profit-sharing or revenue-sharing provision. (Id. at Ex. D,
Dullea Deposition at 62:16-63:24; Ex. F, Skurnac Deposition at
204:10-215:11). They also testified that they had difficulty
recalling the documents without being able to review the 1984
contract to refresh their memory.
One of the witnesses testified that under the mid-1980s
contract Noranda and Delta were required to agree upon the
delivered price of the sulfuric acid to the end customer. (Id.,
Ex. D, Dullca Deposition, at 64-67; 77-79) He also testified that
either the 1989 contract was missing an attachment or rider that
explained how the revenue sharing and pricing formula worked or
that the 1989 contract incorporated by reference the 1984
contract. (Id., Ex. D, Dullea Deposition, at 145). The Noranda
defendants' counsel referred to this 1984 contract during at
least one of the depositions. (Id. Ex. F at 207-09). Plaintiffs
argue that the deposition testimony demonstrates that the terms
of the mid-1980s contract were either in effect during, or had
some relevance to, the period from 1988 through 2003. Plaintiffs
also contend that they were prejudiced during these depositions
by not having a copy of the contract to show to the witnesses to
refresh their memory.
The Essex-Noranda contract, the plaintiffs argue, relates to
what the evidence indicates was the first of a series of
shut-down agreements that Noranda entered into with sulfuric acid
producers in the United States. Plaintiffs contend that a review
of this first contract and the correspondence and memos
surrounding the negotiations is relevant to the interpretation of
the terms, provisions and intent of the later shut-down
agreements that are part of the complaint. In light of the broad
definition of relevance under the Federal Rules of Civil
Procedure, the documents sought are discoverable. See
Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351-52 (1978).
The question then is what is the extent of the burden of
production, whether that burden outweighs the likely benefit of
the documents to plaintiffs' case, and who is to bear the costs
of production. Patterson v. Avery Dennison Corp., 281 F.3d 676,
681 (7th Cir. 2002); Rule 26(b)(2)(iii). D.
The Defendants Have Failed To Sustain Their Burden of Showing
That Production Of The Few Pre-January 1, 1988 Documents Sought By
The Plaintiffs Would Be Unduly Burdensome
The defendants claim that in order to produce the handful of
pre-1988 documents, they will have to re-review the 350 boxes of
documents that they reviewed for the initial production, a task
they say involved "Herculean effort" and one they insist they
should not have to repeat.*fn8
characterizing the Noranda defendants' argument as meritless, it
is clear that the plaintiffs do not want to conduct the review
either. Of course, the effort required to produce the documents
the plaintiffs seek is not burden-free. But, that is not the
test, or else there could be no discovery in any case.
The question is whether the burden is an undue one. As the
objectors, the Noranda defendants must demonstrate that it is.
See Trading Technologies Intern., Inc. v. eSpeed, Inc., No. 04
C 5312, 2005 WL 1300778, *1 (N.D.Ill. April 28, 2005) (Moran,
J.); Semien v. Life Insurance. Co. of North America, No. 03 C
4795, 2004 WL 1151608, *1 (N.D.Ill. April 21, 2004) (Kocoras,
J.). The defendants have failed to provide sufficiently
convincing evidence to support their claim, and whatever that
burden is, it pales by comparison to that in other cases. See,
e.g., United States v. IBM Corp., 83 F.R.D. 97 (S.D.N.Y. 1979)
(ordering civil antitrust defendant to comply with a subpoena
that defendant estimated required production of over five billion
document pages); In re Brand Name Prescription Drugs Antitrust
Litigation, 123 F.3d 599, 614 (7th Cir. 1997) (discovery
involved more than 1,000 depositions and over fifty million pages
of documents); In re Linerboard Antitrust Litigation,
296 F.Supp.2d 568, 577 (E.D.Pa. 2003) (discovery required production of millions of
pages of documents); In re Fine Paper Antitrust Litigation,
685 F.2d 810, 818 (3rd Cir. 1982) (court permitted taking of 270
depositions and production of nearly two million documents in
complex, nationwide antitrust claim).
In order to demonstrate undue burden, the plaintiffs must
provide affirmative proof in the form of affidavits or record
evidence. Wagner v. Dryvit Systems, Inc., 208 F.R.D. 606, 610
(D.Neb. 2001); Jackson v. Montgomery Ward & Co.,
173 F.R.D. 524, 529 (D.Nev. 1997); Zapata v. IBP, Inc., 1994 WL 649322 at
*3 (D.Kan. 1994).*fn9 Nothing of the sort has been offered
by the Noranda defendants. There is only the ipse dixit of
counsel, and that is not sufficient. Whether or not it is a fair
inference that the defendants already have in their possession
some of the specific documents requested as a result of prior
requests, depositions, and the Department of Justice
investigation it is certainly reasonable to assume that the
prior review of the 350 boxes was not done in a haphazard and
disorganized way. After all, the Noranda defendants' attorneys
are no strangers to antitrust litigation and the kind of
complicated and massive discovery involved in this case. Their
two lead counsel, Mr. Gustman and Mr. Cross, have almost 60 years
of experience between them. They have authored numerous
publications involving antitrust, have lectured on antitrust law,
and each has been selected as a Leading Lawyer in the field of
antitrust by the American Research Corporation or the Leading
Lawyers Network. Their firm has more than 120 lawyers. See
Thus, it is unlikely that the team of lawyers who were tasked
to review the initial production did not follow protocols and procedures that involved some method of
document identification. But there are more than inferences from
excellence and experience that suggest that the burden is not so
severe as is claimed. That there was some sort of cataloging of
the 350 boxes is evidenced by the Declaration of Wanda Vasquez,
the paralegal involved in the production of the documents after
their receipt in Chicago. In her declaration she said that her
"records indicate that [the 1988 Prime Report] was produced to
the plaintiffs in February, 2004," and bears the "Bates number of
NFD 100,696-715." (Vasquez Declaration, ¶ 15). Similarly, the
defendants' response was able to pinpoint the Bates numbers that
were produced on June 7th, and it would seem either that some
method of indexing was already in place by October, 2003 or was
anticipated, for how else could Mr. Gustman say in his October
29, 2003 letter that the defense would "entertain" "additional
narrow, specific requests to search for documents after our
initial search and production." (Id. at 7). Without some method
of document inventorying and indexing, it is difficult to see how
that promise could ever be fulfilled, short of reviewing all 350
boxes. Given Mr. Gustman's aversion to that task, it seems likely
that he had something else in mind.
Given the experience of the Noranda defendants' lawyers, it
seems unlikely that the documents that were turned over would
have been returned to the 350 boxes and indiscriminately
commingled with those that were not and the latter would have
included the pre-January 1, 1988 documents. The defendants have
offered no proof that the documents that were not turned over
were not separately maintained or were otherwise not identifiable
in some fashion. The unadorned conclusion that the few pre-1988
documents being sought by the plaintiffs "would now require
another complete search of all 350 boxes at an enormous burden
and expense" is not decisive. (Response at 4)
While Ms. Vasquez was able to pinpoint the exact date on which
the 1988 Prime Report was produced to the plaintiffs and the exact Bates numbers of the
approximately 20 pages comprising the document, the remainder of
her sketchy declaration is curiously silent on the question of
whether the 350 boxes of documents were indexed or catalogued and
on the questions of how many documents were not produced and
whether they were segregated or identified and thus are
accessible without undue burden. Whether these omissions were
inadvertent or purposeful need not be determined. Any
uncertainties go against the defendants, not the plaintiffs,
since the former have the responsibility to demonstrate undue
burden. Without appropriate and supported explanation, the
defendants cannot persuasively argue that they will have to start
from scratch and review 350 boxes containing a million
indiscriminately kept documents. In any event, having reviewed
the universe of documents once, a second review would be far less
burdensome. Cf. U.S.S.E.C. v. Elfindepan, S.A., 206 F.R.D. 574,
577 (M.D.N.C. 2002) (Plaintiffs did not meet the threshold for
using Rule 33(d) where it already culled the documents for
answers to some or all of the interrogatories, meaning it was not
equally or less burdensome for defendants to obtain the
If the defendants failed to establish and follow a protocol for
production, they are, to some degree, the cause of whatever
increased burdens may be incurred in producing the pre-1988
documents. It was not as though the problem surfaced suddenly in
May, 2005. The parties had been disputing the discoverability of
the documents since before October, 2003, and by the Fall of
2003, the plaintiffs had left no doubt that they might well
demand production of pre-1988 documents. By early February, 2005,
the plaintiffs had actually demanded the pre-1988 documents. If
the defendants chose to produce documents in a fashion that
either ignored the unresolved controversy or unreasonably assumed
that the plaintiffs had agreed to make no further demands, they
did so at their peril. Cf. In re Brand Name Prescription Drugs Antitrust Litigation, 1995 WL 360526 at *1
(N.D.Ill. 1995) (Kocoras, J.) (The plaintiffs should not have to
bear the burden of production "where, as here, `the costliness of
the discovery procedure involved . . . is a product of the
defendant's record-keeping scheme over which the [plaintiffs
have] no control.'") (ellipsis and brackets in original); Wagner
v. Dryvit Systems, Inc., 208 F.R.D. 606, 610 (D.Neb. 2001);
Kozlowski v. Sears Roebuck & Co., 73 F.R.D. 73, 76 (D.Mass.
1976) ("To allow a defendant whose business generates massive
records to frustrate discovery by creating an inadequate filling
system [here, by not creating an adequate indexing system], and
then claiming undue burden, would defeat the purposes of the
Producing 350 Boxes of Documents For the Plaintiffs' Inspection
Does Not Comply With Rule 34(b)
The Noranda defendants contend that they should not have to
re-review the documents and that production of the 350 boxes, as
they were kept in storage, complies (or will comply) with Rule
34(b)'s requirement that documents be produced "as they are kept
in the usual course of business. . . ."*fn10
they say, any re-review of the documents is solely the
responsibility of the plaintiffs. The facts tell a very different
story. In 1998, Noranda and DuPont entered into a joint venture
to market sulfuric acid. Thereafter, Noranda no longer had a
separate acid sales force, and the files that had been used in the usual course of that business and which continued to
be necessary to the business were transferred to the joint
venture. Those not transferred were "packed up from [Noranda's]
offices and file drawers" where presumably they were kept in an
organized fashion "and transferred to storage," where they were
no longer kept in any particular order, and where they remained
until this litigation. (Response at 4; Vasquez Declaration).
The Federal Rules of Civil Procedure, which have the force of
statutes, Zapata Hermanos Sucesores, S.A. v. Hearthside Baking
Co., Inc., 313 F.3d 385, 392 (7th Cir. 2002), cert.
denied, 540 U.S. 1068 (2003), are to be accorded "their plain
meaning . . . and generally with them, as with a statute, `[w]hen
we find the terms . . . unambiguous, judicial inquiry is
complete. . . .'" Pavelic & LeFlore v. Marvel Entertainment
Group, 493 U.S. 120, 123 (1989).*fn11 The plain meaning of
the 1980 amendment to Rule 34 compels rejection of the argument
that production of 350 boxes of records of a business whose
relevant activities had ceased in 1998 and which had been stored
since then in no particular order is production of documents
"as they are kept in the usual course of business." Storing
documents may be a part of the usual course of business, but
stored documents are not kept in the usual course of business
within the meaning of the Rule.
Rule 34 was amended in 1980 because of a concern that litigants
were deliberately mixing critical documents with masses of other
documents to hide their existence or obscure their significance.
See Board of Education of Evanston Township High School Dist.
No. 202 v. Admiral Heating & 3, Inc., 104 F.R.D. 22, 36
(N.D.Ill. 1984) (Shadur, J.); 8A C. Wright, A.Miller & R.Marcus,
Federal Practice and Procedure, § 2213, at 431 (2nd ed. 1994). Requiring documents
to be produced "as they are kept in the usual course of
business" (emphasis supplied), precludes artificial shifting of
documents (assuming that the rule is adhered to). A businesses
has an obvious incentive to keep needed documents in a way that
maximizes their usefulness in the day-to-day operations of the
business. That incentive, which is inconsistent with document
tampering, vanishes once documents not used with regularity are
sent to a storage facility, for then it is no longer essential
that they be kept with any degree of organization as this case
vividly illustrates. As to the documents in storage, they are no
longer kept in the "usual course" of business," they are kept
in the usual course of "storage," and the option granted by the
first clause of Rule 34(b) no longer exists. That leaves the
producing party with the obligation to "organize and label" the
documents to correspond to the document requests. City of
Wichita, Kansas, v. Aero Holdings, Inc., 2000WL 1480499 at *1
(D.Kan. May 23, 2000). The Noranda defendants have not availed
themselves of this option.
This is not to say that production of documents as they are
kept in storage is never proper under Rule 34(b). The discovered
party must, however, show that the way in which the documents are
kept has not changed from how they were kept in the usual course
of business. That burden is not difficult. All that is needed is
the testimony of a person with knowledge of how the records were
originally kept and how they were maintained in storage. See,
e.g., Hagemeyer North America, Inc. v. Gateway Data Sciences
Corp., 222 F.R.D. 594, 598 (W.D. Wis. 2004) (compliance with
Rule 34(b) shown by the declaration of defendants' CEO, who was
familiar with the storage facility and the organization of the
documents kept there); Fidelity Nat. Title Insurance. Co. v.
Intercounty Nat. Title Insurance. Co., 2002 WL 193385, *3
(N.D.Ill. Feb. 7, 2002). The Noranda defendants have made no meaningful attempt to
satisfy this evidentiary burden. Ms. Vasquez's declaration proves
nothing other than that there was no impropriety in the handling
of the Noranda documents after they were received at Freeborn &
Peters in Chicago. Ms. Vasquez is testimonially incompetent under
Rule 602, Federal Rules of Evidence, to say: a) what happened to
those documents between the date they were removed from Noranda's
files and sent to the storage facility; and b) what happened to
the documents from the date they were received at the storage
facility to the date they were shipped to Chicago to Freeborn &
Peters. See generally, 3 Weinstein's Federal Evidence § 602.02
et seq. (2nd ed. 2005).
The Noranda defendants are not at liberty under federal
discovery rules to dump massive amounts of documents, which the
defendants concede have "no logical order to them," (Response at
9), on their adversaries and demand that they try to find what
they are looking for. See Rothman v. Emory University,
123 F.3d 446, 455 (7th Cir. 1997) (production of three large storage
boxes papers and numerous other unrelated, non-responsive
materials in response to court-ordered production was
sanctionable); Transportes Aereos De Angola v. Ronair, Inc.,
104 F.R.D. 482, 499 (D.Del. 1985) ("The court will not permit
defendants to shift the burden of discovery by telling `plaintiff
that, if he wishes, he may hunt through all the documents and
find the information for himself.'"); Wagner v. Dryvit Systems,
Inc., 208 F.R.D. 606, 610 (D.Neb. 2001). If the plaintiffs are
correct, the documents relating to sulfuric acid were not only
taken from the file drawers and offices at Noranda and placed
into boxes in no particular order, they "were mixed in the same
box[es] with files from unrelated aspects of Noranda's business, relating to zinc, copper or other materials." (Reply at
9).*fn12 Whether intended or not, the result is the
proverbial "needle in a haystack," Hagemeyer North America, Inc.
v. Gateway Data Sciences Corp., 222 F.R.D. at 598, the very
situation that the 1980 amendment to Rule 34 was intended to
The Plaintiffs' Claimed Responsibility For The Costs To Be
Incurred In The Production Of The Pre-January 1, 1988 Documents
The Noranda defendants argue that if the motion to compel is
granted, any expense to be incurred in obtaining the pre-1988
documents ought to be borne by the plaintiffs since, they are the
cause of any increased costs. The Noranda defendants contend that
in February, 2004, when the 1988 Prime Report was produced, only
90 of the 350 boxes had been reviewed by the Noranda defense
team, and had the plaintiffs acted promptly in seeking the 1987
Prime Report rather than waiting until the close of discovery,
the burden and expense of searching for that and related
documents would have been, if not non-existent, infinitely less
than it may now be. (Response, at 4-5).*fn13
The plaintiffs contend that the 1988 Prime Report, which led
them to the 1987 Report, was "buried in the bowels of Noranda's
massive production," which, by February, totaled approximately
250,000 pages, and which took the plaintiffs months to find.
(Reply at 5). Exactly how long it took is not clear. But months
are not years, and thus perhaps by May or June, 2004, the
plaintiffs might have known about the 1988 Report, or perhaps
should have. But that is a question that cannot be decided on the
present record. Obviously by February 8, 2005, when Ms. Fait
wrote to Mr. Gustman asking that the 1987 Report be produced, the plaintiffs were aware of its existence.
In light of Mr. Gustman's statement in his October, 2003 letter
to "entertain additional narrow, specific requests to search for
documents after our initial search and production" (emphasis
supplied), a literalist might have thought that it would have
been permissible to wait until document production was complete
before asking for the pre-January 1, 1988 documents. But, the
plaintiffs did not wait. In early February 2005, almost five
months before documents Bates stamped 591,997-593,239 were
produced, the plaintiffs attempted unsuccessfully to get the 1987
Report and "additional, narrow, specific" documents. It is not
possible, on the strength of the present record, to determine
whether the plaintiffs could have acted with greater dispatch and
whether, notwithstanding Mr. Gustman's claim, there really would
have been a necessity in February, 2005 to have reviewed "500"
boxes of documents, or whether the documents she requested could
have been produced at that time without undue burden. Nor is it
possible to determine the how much additional costs will result
as a consequence of the Noranda defendants' February 28, 2005
refusal to produce the 1987 Report and the contracts that were
requested. These are questions for another day and a better
The Essex-Noranda and Delta-Noranda agreements present a
slightly different circumstance. Those agreements were well-known
in the marketplace at least as early as 1989. The January 27,
1989 issue of Fertecon Sulphuric Acid Telefax, a
widely-distributed trade publication, noted:
Noranda is believed to have concluded an agreement
with DuPont which will involve closing of the
latter's 195,000 t/yr. plant at Grasselli, NJ which
will then receive Noranda material. This arrangement
is similar to that negotiated by Noranda with Essex,
and more recently with Delta.
(Response at 5, App. I, Ex. C, at 3) (Emphasis supplied). Even
if the plaintiffs were unfamiliar with this newsletter, the Noranda defendants produced a collection of
excerpts from the Fertecon faxes and newsletters in mid-December
of 2003 as part of the files of Dr. Lauren Stiroh, the class
expert economist retained by the defendants. The plaintiffs
deposed Dr. Stiroh on February 15, 2004 and made the collection
of Fertecon faxes an exhibit at the deposition. (Response at 5,
App. I, Ex. D, at 3). Yet, they did nothing for a year to try and
obtain the contracts.
Whether an earlier request could have been made and whether it
would have been flatly rejected in the way that Mr. Gustman
rejected the request in February 2005 thereby rendering any
earlier request an exercise in futility cannot be determined
given the state of the present record. Thus, before there can be
any allocation of costs, a number of things must be known
including: whether there was some kind of indexing system in
place pursuant to which the Noranda defendants conducted their
initial review of the 350 boxes of documents; whether location of
the handful of documents presently being sought actually requires
are-review of the 350 boxes of documents; when the plaintiffs
actually discovered the 1988 Prime Report; whether they could
have acted more quickly in making the requests for documents than
they did; whether the costs of production would have been
different had the requests been made at an earlier time, and
other related matters, which bear upon an appropriate allocation
of the costs involved in compliance with the motion to compel.
See Rule 26(c)(2), Federal Rules of Civil Procedure;
Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 358 (1978);
Penk v. Oregon State Bd. of Higher Educ., 816 F.2d 458, 468
(9th Cir. 1987); 8 Wright & Miller, Federal Practice &
Procedure, § 2008.1 (2005 Pocket part at 32).
The time for resolving these questions is not yet at hand. III.
THE NORANDA DEFENDANTS' RESPONSE TO THE PLAINTIFFS'
INTERROGATORIES IS NOT COMPLIANT WITH RULE 33(d)
On May 31, 2005, the plaintiffs served a third set of
interrogatories on Noranda and Falconbridge. (Plaintiffs' Motion
and Supporting Memorandum to Compel, Ex. 1). On June 30, 2005,
the Noranda defendants objected to the interrogatories on the
grounds that they were improperly served, exceeded the numerical
limit allowed by Rule 33(a), sought privileged information, and
were vague, ambiguous, and unduly burdensome, (Id., Ex. J, at
3-6, 11-13), but went on to respond to interrogatories 1, 2, and
refer[ring] Plaintiffs to their document production
in this case, from which the information responsive
to this interrogatory can be derived or ascertained.
The burden of searching the documents for such
information is substantially the same for Plaintiffs
as it is for Noranda and Falconbridge.
(Id., Ex. J, at 4-5, 6, 13).
Plaintiffs complain that this response is inadequate because it
refers plaintiffs generally to the entire document production.
(Id., at 7-8).*fn14 In their response brief, the Noranda
defendants object to interrogatories 1, 2, and 7 as unreasonably
cumulative and duplicative of not only information contained in
documents already produced, but information garnered through
depositions as well. (Response, at 10-13). Rule 33(b)(4)
requires that "[a]ll grounds for an objection to an interrogatory
shall be stated with specificity." If they are not, the objection
is deemed waived. Rule 33(b)(4); Hobley v. Chicago Police
Commander Burge, No. 03 C 3678, 2003 WL 22682362, *5 (N.D.Ill.
Nov. 12, 2003); Jones v. Syntex Laboratories, Inc., No. 99 C
3113, 2001 WL 1338987, *1 (N.D.Ill. Oct. 30, 2001). The advisory committee's notes to the 1993 amendment to Rule 33 state that the
added language was intended to make clear that objections must be
specifically justified, and that unstated or untimely grounds for
objection ordinarily are waived. Here, as plaintiffs point out in
their reply brief, the Noranda defendants raise their "cumulative
and duplicative" objection for the first time in their Response.
The objection is thus waived.
That leaves the plaintiffs' concerns about the Noranda
defendants' resort to Rule 33(d) to answer the interrogatories.
Under this rule:
Where the answer to an interrogatory may be derived
or ascertained from the business records of the party
upon whom the interrogatory has been served . . . and
the burden of deriving or ascertaining the answer is
substantially the same for the party serving the
interrogatory as for the party served, it is a
sufficient answer to such interrogatory to specify
the records from which the answer may be derived . . .
A specification shall be in sufficient detail to
permit the interrogating party to locate and to
identify, as readily as can the party served, the
records from which the answer may be ascertained.
This same issue was considered at length in the earlier opinion
involving defendant Koch Industries. See In re Sulfuric
Antitrust Litigation, 2005 WL 2059327 (N.D.Ill. August 26,
2005). A party responding to an interrogatory may not take
advantage of Rule 33(d) unless it can show that "the burden of
deriving or ascertaining the answer is substantially the same for
the party serving the interrogatory as for the party
served. . . . ." Magarl, LLC v. Crane Co., No. IP 02-0478-C-T/L,
1:03-CV-01255-JDT-TW, 2004 WL 2750252, *7 (S.D.Ind. Sept. 29,
2004); Fresenius Medical Care Holding Inc. v. Baxter Intern.,
Inc., 224 F.R.D. 644, 650 (N.D.Cal. 2004). While another review
of the documents that have been produced would be anything but
effortless, the effort involved is not as great for the producing
parties as it is for the plaintiffs, since the former are more
familiar with the documents than the plaintiffs. Added to that
familiarity is the familiarity of defense counsel, who have
already undertaken at least one review of the documents.
Consequently, the defense will be more easily able to locate the
answers in the documents than would plaintiffs. U.S.S.E.C. v. Elfindepan, S.A.,
206 F.R.D. 574, 577 (M.D.N.C. 2002) (Plaintiffs did not meet the
threshold for using Rule 33(d) where it already culled the
documents for answers to some or all of the interrogatories,
meaning it was not equally or less burdensome for defendants to
obtain the information); Petroleum Insurance. Agency, Inc. v.
Hartford Acc. and Indemnity. Co., 111 F.R.D. 318, 322 (D.Mass.
1984) (court did not allow defendants to use Rule 33(c)
predecessor to Rule 33(d) where defendants had done
considerable work to gather the information requested by the
interrogatories because it followed that it was not equally
burdensome for the parties to search the records to come up with
Even if the Noranda defendants had satisfied the threshold
showing required to employ the Rule 33(d) option, the reference
to records must be sufficiently detailed to allow the
interrogating party to locate and identify them. Instead of
specifying "by category and location, the records from which the
answers to the interrogatories can be derived," Rule 33(c)
advisory committee's note (1980 amendment), cited in In re G-I
Holdings Inc., 218 F.R.D. 428, 438 (D.N.J. 2003), the Noranda
defendants have produced perhaps a million pages of documents and
merely referred plaintiffs, generally, to them for the answers to
their interrogatory. This is "an abuse of the option." See In re
Sulfuric Antitrust Litigation, 2005 WL 2059327 (N.D.Ill. August
26, 2005) (citing Bonds v. District of Columbia, 93 F.3d 801,
811 (D.C. Cir. 1996)). The Noranda defendants' reliance on two
cases that antedated the 1980 amendment to Rule 33 by 31 and 21
years respectively is, to say the least, odd. See Aktiebologet
Vargos v. Clark, 8 F.R.D. 635 (D.D.C. 1949); Riss & Co. v.
Association of American Railroads, 23 F.R.D. 211 (D.D.C. 1959).
(Response at 9). Those cases were decided when the law did not
require a party opting to produce business records to specify, by
category and location, the records from which answers to the
interrogatories can be derived.
Accordingly, plaintiffs' motion to compel is granted as to
interrogatories 1, 2, and 7. The Noranda Defendants must either
provide a specific response to each subsection of the
interrogatory or, if it chooses to invoke Rule 33(d), must
adequately specify the responsive documents.
For the foregoing reasons, the plaintiffs' motion to compel the
Noranda defendants to comply with certain outstanding discovery
requests [#168] is GRANTED in part and DENIED in part. The motion
of the Noranda defendants to strike plaintiffs' motion to compel
[#171] is DENIED. Following compliance with the outstanding
discovery requests, the Noranda defendants may apply, if they
choose, for a determination of whether costs should be imposed on
the plaintiffs, and if so, in what amounts. Any application must
be supported by evidence that addresses the concerns expressed
earlier in this opinion.
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