IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF ILLINOIS

)

BEUGRE S. NEHAN, ) Case No: 12CV5274

Plaintiff, )

)

v. ) District Judge Edmond E. Chang 

) Magistrate Judge Susan E. Cox 

)

LOCAL UNION NO. 1- )

BAKERY, CONFECTIONERY, )

TOBACCO WORKERS and )

GRAIN MILLERS INT’L UNION, )

AFL-CIO-CLC, and ROGERS )

JONES,

Defendants. )

)

ORDER

We hereby grant, in part, defendants’ motion to compel responses from non-party Tootsie 

Roll Industries, LLC to requests outlined in defendants’ Rule 45 Subpoena [63]. Defendants’ 

request for costs and attorney fees incurred in presenting this motion, however, pursuant to 

Federal Rule of Civil Procedure 37(a)(5)(A), is denied. 

 STATEMENT 

Defendants have filed a motion to compel responses from non-party Tootsie Roll 

Industries, LLC (“Tootsie Roll”), to requests outlined in their Rule 45 Subpoena. (Tootsie Roll is 

plaintiff’s former employer, who had entered into a collective bargaining agreement with the 

union defendant in this case, Local Union No. 1). Defendants narrowed their requests to the 

following two categories of documents: (1) Tootsie Roll’s shipping and receiving department’s 

forklift usage records for June 4, 2010; (2) Tootsie Roll’s forklift and motorized pallet jack usage 

records for plaintiff Beugre Nehan from May 1, 2010 to August 31, 2010. Tootsie Roll now 

argues that these subpoena requests impose an undue burden on it because the records are kept in 

paper form only, and each piece of equipment is used by several different employees each day, 
thereby creating “multiple” usage records. It also argues that defendants have not sufficiently 

articulated their need for these records.

We first address the latter point. For plaintiff to establish his Title VII claims against 

defendants he will have to show, as one element of his claim, that the defendant Union 

discriminated against him because of his race or national origin, or alleged disability. Plaintiff’s 

allegations include a claim that on June 4, 2010, Tootsie Roll reassigned a forklift that he had 

been using to a coworker, thereby treating that coworker – John Maka – more favorably than it 

treated him. But plaintiff also answered an interrogatory, under oath, stating that Tootsie Roll 

treated a different employee – Rick Cruz – more favorably. Defendants simply want to verify 

who Tootsie Roll provided the forklift to on June 4, 2010. This evidence could assist defendants 

in defending themselves from allegations that a similarly situated individual from a 

non-protected class was treated more favorably. To this point, we agree. 

Defendants also seek equipment usage records for the 4 month period noted because 

plaintiff alleges that, because of defendants’ failure to file a grievance on June 4, 2010, he had to 

work without a forklift. And in the litigation with plaintiff’s former employer, plaintiff asserted 

under oath that he was told not to use the forklift so he did not use it again. Here, defendants seek 

to confirm whether plaintiff used a forklift before and after June 4, 2010. Tootsie Roll argues that 

defendants should just ask plaintiff in a deposition, or rely on the pleadings in the plaintiff’s case 

against Tootsie Roll, where apparently there is already sworn testimony on this subject. But 

defendants assert that they already have plaintiff’s testimony that he did not use the forklift. They 

merely want to confirm that was truthful. 

The next issue is whether responding to these requests would create an undue burden on 

Tootsie Roll. To this point we agree with defendants. Tootsie Roll has failed to articulate how 
the records are maintained other than to state that they are in paper form. We do not know 

whether the documents are in boxes, how they are organized or stored, and simply have no way 

of weighing the burden of compliance.1 Tootsie Roll only argues that these documents would be 

difficult to “wade through.” Defendants have also offered to alleviate the burden on Tootsie Roll 

by offering to go through the documents themselves, and copy the documents or make 

arrangements to have the documents copied. But Tootsie Roll claims that this would not alleviate 

the hardship it would suffer because it would have to first find and gather the documents, review 

them, and monitor defendants while they inspect them. The problem, again, is that Tootsie Roll 

does not explain why it would need to have such a hands-on approach to this process.

Finding that defendants have sufficiently articulated a need for this information, and 

without good reason to find that compliance with defendants’ subpoena is overly burdensome, 

we grant defendants’ motion [dkt. 63]. We, however, deny defendants’ request for attorney fees 

and costs incurred in the presentment of this motion. 

Date: 10/29/13 /s/Susan E. Cox__________

U.S. Magistrate Judge

 

 1 See Thayer v. Chiczewski, 257 F.R.D. 466, 469-70 (N.D. Ill. 2009)(noting the case specific inquiry required to 

determine whether a subpoena imposes an undue burden, including the balancing of compliance against the benefits 

of production).