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The Manitowoc Co., Inc. v. Kachmer

United States District Court, N.D. Illinois, Eastern Division

August 26, 2016

MICHAEL J. KACHMER, et al., Defendants.

          John Z. Lee Judge


          M. David Weisman United States Magistrate Judge

         Plaintiff The Manitowoc Company, Inc. (“Manitowoc”) has sued Defendants Michael J. Kachmer (“Kachmer”), Craig Reuther (“Reuther”), and Christopher Brisch (“Brisch”) (collectively, “Defendants”) for breach of contract. Manitowoc asserts that Defendants breached their post-employment, non-solicitation and/or non-disclosure obligations contained within various agreements agreed to by the parties. As a result of Defendants' conduct, Manitowoc alleges that it lost employees and valuable confidential and/or proprietary information and documents and incurred costs associated therewith. The case is before this Court on Manitowoc's motion to compel the production of a spreadsheet generated by Reuther (the “Reuther Spreadsheet”) allegedly containing information regarding the misappropriated documents at issue in this litigation.[1] For the reasons set forth below, the Court denies Manitowoc's motion to compel [dkt. 133].


         Manitowoc seeks discovery of the Reuther Spreadsheet, a document Reuther prepared at the specific direction of his counsel and in direct response to the onset of this litigation. (Dkt. 140, pp. 2, 10.) Reuther provided the Reuther Spreadsheet to this Court for in camera review. As set forth in further detail below, the document has 35 rows (one for each document it addresses) and five columns. The columns bucket information by (1) document number; (2) the title of each document; (3) a description of each document; (4) the nature, if any, of Reuther's use of each document; and (5) Reuther's theory of why each document was not confidential.

         At issue is the information sought by Interrogatory Nos. 10, 11, and 12. Manitowoc asserts that Reuther has failed or refused to produce substantive information in discovery responses “regarding the Manitowoc documents he took, sent, requested, received, misappropriated, used, and/or had in his possession, and what he did with each such document.” (Dkt. 135, p. 1.) Specifically, Manitowoc hones in on Interrogatory Nos. 10, 11, and 12, which it believes cover the entire universe of allegedly misappropriated documents that form the basis of this lawsuit. (Dkt. 135, p. 2-6; dkt. 141, p. 4 (asserting that Interrogatory Nos. 10, 11, and 12 collectively address the entire universe of documents Reuther may have misappropriated).) Manitowoc argues that “the Reuther Spreadsheet is the only comprehensive source containing all the information Manitowoc requested.” (Dkt. 141, p. 4-5.)

         Understandably, Manitowoc is keenly interested in the contents of the Reuther Spreadsheet. The Court's review of the document, however, reveals that certain portions are privileged as attorney-client communications and other portions constitute the party's work product. Accordingly, the privileged portions and aspects protected under the work product doctrine are shielded from discovery.

         Reuther argued in his submissions, (see, e.g., dkt. 140, pp. 2, 9) and at oral argument, that he produced any non-privileged information in his responses to Manitowoc's interrogatories and other discovery. The Court agrees and therefore does not require Reuther to produce the unprivileged duplicative information and finds no compelling need that would justify the production of the otherwise protected information. See Jackson v. City of Chi., No. 03 C 8289, 2006 WL 2224052, at *4 (N.D. Ill. July 31, 2006) (distinguishing between fact and opinion work product and explaining “a party may obtain discovery of ordinary work product only upon a showing of substantial need for the work product and proof of undue hardship if forced to obtain the requested work product in some other way.”) (citing Logan v. Comm. Union Ins. Co., 96 F.3d 971, 976 (7th Cir. 1996)).

         Manitowoc correctly asserts that Reuther may not shroud from discovery otherwise discoverable information by simply inserting such information in a communication to counsel. The parties' briefs, oral argument, and, in particular, the Court's in camera review of the Reuther Spreadsheet reveal that Reuther has not sought to protect from disclosure underlying facts at issue in the litigation. To the contrary, Reuther indeed already produced (albeit in a different form) the information Manitowoc doggedly seeks. The Court finds that Reuther has produced all discoverable facts contained within the Reuther Spreadsheet, and Reuther only seeks to protect his own work product (prepared subsequent to Manitowoc's initiation of this lawsuit) and communications made in confidence to counsel in relation to the pending litigation. In sum, Manitowoc has already received all of the discovery to which it is entitled, and the Court therefore denies Manitowoc's Motion to Compel for the reasons stated herein.


         A. Timing of the Motion to Compel

         The Court first addresses the timeliness of Manitowoc's motion to compel. Reuther argues that Manitowoc inexcusably delayed in filing its motion to compel and the Court should outright deny the motion as untimely. (Dkt. 140, pp. 10-11.) The district court set the close of fact discovery for April 6, 2016. (Dkt. 120.) Expert discovery closed on June 24, 2016. (See dkt. 101 (setting June 24, 2016 due date for deposition of rebuttal experts).) Manitowoc filed this motion to compel on July 12, 2016. (Dkt. 133.)

         Reuther points to this District's decision in Fast Food Gourmet, Inc. v. Little Lady Foods, Inc., No. 05 C6022, 2007 WL 1673563, at *3 (N.D. Ill. June 8, 2007) (motions to compel filed after the close of discovery not untimely where accompanied by reasonable and persuasive justification for delay) and the Seventh Circuit's opinion in Rossetto v. Pabst Brewing Company Co., 217 F.3d 539, 542 (7th Cir. 2000) (upholding denial of untimely motion to compel filed two months after close of discovery without justification for tardiness). Despite fact discovery closing prior to the filing of the motion to compel, (see Dkt. 120 (setting close of fact discovery for April 6, 2016)), Manitowoc persuasively distinguishes this case from other contexts in which a motion to compel filed late in the game might upend the case's briefing schedule, place an undue burden on the opposing party, or force the Court to reopen discovery. (See dkt. 141, pp. 9-10.) Unlike Rossetto, the Court, in exercising its discretion, finds no need to deny the motion on timeliness grounds to “expedite the litigation and spare the parties the expense of protracted discovery, the bane of modern litigation.” 217 F.3d 539 at 542. Rather, the Court agrees that this motion implicates a discrete and manageable question of production that directly bears on the heart of the litigation, and by resolving the issue on the merits, we further the truth-seeking function of the litigation. See Patterson v. Avery Dennison Corp., 281 F.3d 676, 681 (7th Cir. 2002) (“Before restricting discovery, the court should consider ‘the totality of the circumstances, weighing the value of the material sought against the burden of providing it, ' and taking into account society's interest in furthering ‘the truthseeking function' in the particular case before the court.”) (internal citation omitted).

         The Court also notes Manitowoc's assertion that Reuther failed to disclose the existence of the Reuther Spreadsheet in a timely fashion. (Dkt. 141, p. 2.) Manitowoc took Reuther's deposition on January 26, 2016, at which time Manitowoc's counsel specifically demanded the Reuther Spreadsheet. (Id. at 2-3.; dkt. 135, p. 5.) Reuther's counsel responded by submitting a privilege log for the Reuther Spreadsheet on February 1, 2016. (Dkt. 140, Ex. A; see dkt. 135, p. 5.) Under these circumstances, we believe all parties acted reasonably in both requesting the Reuther Spreadsheet and subsequently responding to that request.

         B. Nature of the Reuther Spreadsheet and Initial Observations

         The Reuther Spreadsheet bears no title beyond “Attorney Client Privilege.” It contains five categories of information pertaining to 35 documents at issue in the litigation. The five categories of information are set forth in columns entitled (1) “No.”; (2) “Document Title”; (3) “Document Description”; (4) “How did I use it”; and (5) “Why [sic] felt it was not confidential information.”

         The titles are self-explanatory. The first category provides nothing more than a list numbering the documents 1-35, and the second category only provides a document title. The “Document Description” column sets out a brief overview of the background and nature of the document, the purpose for which Manitowoc used the document and, in some cases, a notation of the individual or company that created the document (or type of document), and that the document was superseded. Next, the “How did I use it” category describes the nature of Reuther's use of the document (if any). Finally, the “Why [sic] felt it was not confidential information” category sets forth, as one might imagine, Reuther's theory for why the documents should not be considered confidential.

         The Court has subject matter jurisdiction on the basis of diversity of the parties. It is well settled that Federal Rule of Civil Procedure 26(b)(3) codifies the work product doctrine, and the Court applies federal law to issues implicating the doctrine. E S E, T [2] dna elan pstein he Attorney-Client Privilege and the Work-Product Doctrine 804 (American Bar Association, eds., 5th ed., Vol II. 2007); Abbott Labs v. Alpha Therapeutic Corp., 200 F.R.D. 401, 405 (N.D. ...

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