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IN RE SULFURIC ACID ANTITRUST LITIGATION

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 Essex.

  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

  I.

  THE NORANDA DEFENDANTS' MOTION TO STRIKE THE MOTION TO COMPEL

  A.

  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 motion.
(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 denied.

  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 the contract.
Ms. Fait: Okay. I believe we have. I'm almost certain that it was — one of the items that we asked you for was —
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 ...

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