United States District Court, C.D. Illinois, Rock Island Division
CMB EXPORT, LLC, CMB SUMMIT, LLC, d/b/a CMB REGIONAL CENTERS, Plaintiffs,
KIMBERLY ATTEBERRY, CHRISTOPHER ATTEBERRY, and VERMILLION CONSULTING, LLC, Defendants.
DARROW UNITED STATES DISTRICT JUDGE
the Court are Plaintiffs' CMB Export LLC's and CMB
Summit LLC's (collectively, “CMB”) motion to
certify the Court's September 29, 2016 Order for
interlocutory appeal, ECF No. 102; and its motion seeking
leave to reply to Defendants' response, ECF No. 106. For
the reasons that follow, both motions are DENIED.
Court has already detailed, in the Order at issue in the
instant motion, the factual background of this case, Sept.
29, 2016 Order 1-8, ECF No. 1, and will not repeat that
account here. Generally, the case concerns the efforts of
CMB, which helps foreign nationals invest money in order to
qualify for EB-5 visas, to recover against a former employee
who, it asserts, sabotaged its business and left with
proprietary client lists and other information she was not
entitled to take. See Compl. ¶¶ 1-32, ECF
September 29, 2016 Order affirmed the magistrate judge's
discovery ruling as to materials of which CMB sought
discovery. CMB had argued that its erstwhile employee,
Defendant Kimberly Atteberry, who started her own EB-5 visa
consulting firm, Defendant Vermillion Consulting, LLC
(“Vermillion”), had shared various forms of
proprietary information with third-party competitors of CMB
after she left, and that because evidence of this sharing
would support CMB's claims against Defendants, CMB should
be permitted broad discovery of documents Atteberry and
Vermillion had shared with the third-party competitors.
See CMB Mot. Compel Discovery, ECF No. 56. The
magistrate judge initially granted CMB's motion to compel
discovery of the contested documents, Jul. 27, 2015 Minute
Entry, ECF No. 63, but after Defendants filed a motion for
reconsideration, ECF No. 66, and after several of the third
parties specially appeared seeking to protect assertedly
private communications they had had with Defendants, ECF Nos.
67, 71, the magistrate judge altered his earlier ruling. He
to this extent . . . That, as it relates to these third
parties, discovery that the plaintiff seeks from the
defendant . . . they must make a specific showing through
motion with the courts-specific-as to how the discovery
sought relates to their claim in this case as to a stolen
So, I need specifics. You have got to . . . link it up to
some evidence that you have that is going to give the Court a
basis to believe that the information you seek is more than a
fishing expedition because right now what this looks like is
a long-line fishing expedition of grand order.
Oct 20, 2015 Tr. 50, ECF No. 87.
objection to that ruling made plain its quandary: having
evidently turned up no incriminating material in any other
documents Defendants produced in the course of discovery, it
now had “nowhere else to go to discover Atteberry's
and Vermillion's documents.” Mem. Supp. Obj. 5, ECF
No. 85. But the Court was unpersuaded. It noted that Federal
Rule of Civil Procedure 26(b)(1) authorizes discovery of
information relevant to claims or defenses, but that such
discovery must be “proportional to the needs of the
case, considering . . . the parties' relative access to
relevant information, the parties' resources, the
importance of the discovery in resolving the issues, and
whether the burden or expense of the proposed discovery
outweighs its likely benefit.” Sept. 29, 2016 Order 11.
The Court decided that the magistrate judge had appropriately
balanced the interest of the third parties and
Vermillion/Atteberry against CMB's need for discovery by
requiring that, as to any request for documents that
Defendants or third parties claimed to be confidential, CMB
would have to point to specific facts that gave it reason to
think discovery would prove fruitful. Id. at 10-11.
The Court held that this ruling was, at the least, not
clearly erroneous, id. at 10, and declined to
disturb it, id. at 11. The Court also distinguished
the scenario from Gotham Holdings, LP v. Health Grades,
Inc., 580 F.3d 664 (7th Cir. 2009), in which the Seventh
Circuit held that Rule 26 trumped a contractual privacy
agreement as to a specific document of which one party to
litigation sought discovery. In CMB's case, the Court
explained, the magistrate judge had appropriately required a
threshold showing of relevance as to a certain class of
documents before he would grant discovery, rather than
allowing a litigant's right to discovery under the
Federal Rules of Civil Procedure to be barred by a private
contract, as had happened at the district court in Gotham
Holdings. Sept. 29, 2016 Order 11-12.
I.Legal Standard on a Motion for Certification of
a district court's orders that do not terminate an action
or otherwise give rise to a final, appealable judgment are
not immediately appealable. See Digital Equipment Corp.
v. Desktop Direct, Inc., 511 U.S. 863, 868 (1994)
(describing “the general rule that a party is entitled
to a single appeal, to be deferred until final judgment has
been entered” (citation omitted)). These non-final
orders are termed interlocutory orders. Certain kinds of
interlocutory orders, however, may be appealed immediately,
like injunctions, 28 U.S.C. § 1292(a)(1), and a district
judge may also certify other interlocutory orders for
immediate appeal when she “shall be of the opinion that
such order involves a controlling question of law as to which
there is substantial ground for difference of opinion and
that an immediate appeal from the order may materially
advance the ultimate termination of the litigation, ”
id. § 1292(b). Thus, “[t]here are four
statutory criteria for the grant of a section 1292(b)
petition to guide the district court: there must be a
question of law, it must be controlling, it
must be contestable, and its resolution must promise
to speed up the litigation.” Ahrenholz v.
Bd. of Trustees of Univ. of Illinois, 219 F.3d 674, 675
(7th Cir. 2000). A party seeking immediate appeal of an
interlocutory order “bears a heavy burden, as only
‘exceptional circumstances justify a departure from the
basic policy of postponing appellate review until after the
entry of final judgment.'” City of Joliet v.
Mid-City Nat. Bank, No. 05 C 6746, 2008 WL 4889038, at
*1 (N.D. Ill. June 13, 2008) (quoting Fisons Limited v.
United States, 458 F.2d 1241, 1248 (7th Cir. 1972)).
argues that there is a controlling question of law, Mem.
Supp. Mot. Certify 3-4, ECF No. 103; that there is
substantial ground for difference of opinion, id. at
4-5; and that certification would materially advance the
ultimate termination of the litigation, id. at 5-6.
Defendants respond that there is no controlling question of
law presented, Resp. Mot. Certify 2- 4; that there is not
substantial ground for disagreement because the law ...