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IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF INDIANA 

BALL CORPORATION, AN INDIANA ) 

CORPORATION AND FACTORY MUTUAL ) 

INSURANCE COMPANY, A RHODE ) 

ISLAND CORPORATION, AS SUBROGEE, ) 

 Plaintiff, ) 

 ) 

 v. ) CAUSE NO. 4:16-CV-00042-RL-APR 

 ) 

AIR TECH OF MICHIGAN, INC., ) 

A MICHIGAN CORPORATION, ) 

 Defendant. ) 

Comes now, Defendant, Air Tech of Michigan, Inc., A Michigan Corporation 

(“Air Tech”), by counsel, Starr Austen & Miller, LLP (“counsel”), and pursuant to Rule 

37(A) of the Federal Rules of Civil Procedure files its Motion to Compel Discovery, and 

states as follows: 

1. On January 30, 2017, Air Tech served upon Plaintiffs, Ball Corporation 

(“Ball”) and Factory Mutual Insurance Company (“FMIC”), Defendant’s First Set of 

Interrogatories and Request for Production of Documents (“discovery”), to which Ball and 

FMIC responded on June 6, 2017 with a privilege log and on June 12, 2017 with their 

responses. 

DEFENDANT’S MOTION TO COMPEL DISCOVERY 

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2. On June 19, 2017, counsel sent Plaintiffs a letter pursuant to the 

requirements of Federal Rule of Civil Procedure 37(A)(1) in an effort to informally 

resolve a pending discovery dispute concerning Fed. R. Civ. P. 34(b)(2)(E)(i). (See, 

Exhibit 1). 

 3. On June 21, 2017, Plaintiffs responded to counsel’s letter by email, stating 

its disagreements with counsel’s requests to supplement each of its discovery responses 

identified in counsel’s June 19 letter. (See, Exhibit 2). 

I. Averments relating to Plaintiffs’ insufficient responses and improper 

objections to Defendant’s discovery requests. 

4. Federal Rule of Civil Procedure 34(b)(2)(E)(i) requires that “[a] party must 

produce documents as they are kept in the usual course of business or must organize 

and label them to correspond to the categories in the request.” 

5. On June 12, 2017, Plaintiffs produced a CD Rom containing two folders: 

one marked as “FMIC”; and, the second marked “Ball.” The “FMIC” folder contained 

Bate stamped pages numbered 1 through 1784; and, the “Ball” folder contained Bate 

stamped pages numbered 131-1319. In neither of these two files are the documents 

organized, labeled, or identified in anyway, nor were the documents produced in any 

apparent order. Further, the documents produced by Plaintiffs in no way indicate 

which documents are responsive to which request. 

6. Parties may not simply dump disorganized documents on their opponents 

in an effort to evade their discovery obligations. See, C & N Corp. d/b/a Door Peninsula 

Winery v. Kane and Ill. River Winery, Inc., 2013 WL 14366 * 4 (E.D. Wis. 2013). Seventh 

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Circuit case law makes it clear that a district court has the discretion to dismiss a claim 

when a party demonstrates a pattern of dilatory and evasive discovery tactics and when 

that party willfully persists in such tactics in violation of court warnings and orders. See, 

Govas v. Chalmers, 965 F.2d 298, 302 (7th Cir. 1992). 

7. Plaintiffs’ discovery responses as a whole are insufficient to the extent that 

the documents are not labeled in an organized fashion correlated to the specific 

discovery requests. At a minimum, the Court should order Plaintiff to provide an 

identification of which documents (by Bates No.) are responsive to which of 

Defendant’s Request for Production. 

8. Furthermore, Ball Corporation’s responses to Request numbers 7, 10, 11, 

12, 13, 14, 15, 19, 31 are insufficient to the extent that the one year period that Ball 

Corporation limits itself for producing responsive documents does not conform to 

Defendant’s requests. Defendant has requested any documents and communications 

relating to the service, examination, inspection, repair, maintenance, testing, alteration, 

modification, and prior damage to Internal Bake Oven (“IBO”) No. 2 in the ten (10) 

years preceding the fire alleged in Plaintiffs’’ Complaint. There is absolutely no basis 

for Plaintiffs’ contention that the time period for these requests is irrelevant or 

overbroad, and, Plaintiffs’ unilateral re-drafting of Defendant’s Request for Production 

is improper. For example, the scope of discovery does not require that evidence be 

admissible at trial. Del Real v. Lacosta, Inc., 2014 WL 6810089 * 3 (N. D. Ind. 2014). Rather, 

parties may obtain discovery relevant to either party’s claim or defense. Id. Relevancy 

includes information that itself may not be admissible, provided that discovery appears 

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reasonably calculated to lead to the discovery of admissible evidence. Id.; Fed R. Civ. 

26(b)(1). Defendant submits the same argument in response to Ball Corporation’s 

objections to Interrogatory numbers 4, 8, 9, 10, 11, and 17. 

9. These requests are relevant to Defendant’s defense and seek information 

that is reasonably calculated to lead to the discovery of admissible evidence. Defendants 

know from Monticello Fire Department records that Ball Corporation had previous fires 

in the ductwork of IBO No. 2. Information about those fires is, therefore, relevant to 

whether the ductwork was being appropriately cleaned and maintained by Ball. There 

is no way for Defendant to gauge Ball’s historical maintenance of the ductwork by 

simply looking at documents dating back only one year prior to the fire alleged in the 

Complaint. The discovery rules do not allow for Plaintiffs to unilaterally limit the scope 

of discovery without any factual argument in support. “Provided the discovery sought 

appears facially relevant, the party resisting discovery carries the burden to establish 

the lack of relevance by demonstrating that the requested discovery either does not 

come within the scope of relevance as defined by the Federal Rules or the likelihood of 

discovering relevant evidence is so minimal that the potential harm occasioned by 

discovery would outweigh the ordinary presumption in favor of broad disclosure.” 

Vajner v. City of Lake Station, In., 2010 WL 4193030 * 2 (N.D. Ind. 2010). Plaintiffs must 

demonstrate with specificity that the request is improper by establishing specific facts 

or reasons which show the discovery sought falls outside the minimal relevancy 

standard of the Federal Rules. Id. Given the possibility that the ductwork of IBO No. 2 

was not properly cleaned, maintained or repaired over the ten years preceding the 

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alleged fire, Plaintiffs are unable to demonstrate that Defendant’s requests are not 

relevant to Defendant’s defense. 

10. The same is true with respect to Ball Corporation’s response to Request 

number 32, which states it has no documents relating to any retrofitting performed on 

IBO No. 2 for the three year period prior to the incident alleged in the Complaint. 

Again, the three year period in which Ball Corporation limits itself is not sufficient. If 

IBO No. 2 was ever retrofitted, even beyond the ten years preceding the alleged fire, 

information about that retrofitting would be important to whether the IBO was 

properly designed and installed. Further, if the IBO was not designed for aluminum 

cans, any retrofitting is highly relevant to this matter. Plaintiff cannot unilaterally limit 

the scope of a facially relevant discovery request that which may lead to disclosure of 

admissible proof. See, Graham v. Casey’s General Store, 206 F.R.D. 251, 254 (S.D. Ind. 

2002). 

11. Moreover, Ball Corporation’s response to Request number 22 is 

insufficient to the extent that it limits itself to only producing a copy of the FMIC policy 

that provided coverage for the incident alleged in the Complaint. Request Number 22 

seeks any and all documents relating to any policy of property insurance that Ball had 

on the following dates: January 25, 2014; January 17, 2014; November 19, 2013; July 11, 

2013; April 3, 2013; October 9, 2011; March 25, 2010; December 11, 2005; and, July 21, 

2005. Providing only a copy of the insurance policy that provided coverage for the 

alleged incident does not remotely conform to Defendant’s request. Documents relating 

to the policies in effect on the given dates are relevant because, if there were fires at Ball 

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Corporation on the specified dates, and claims were submitted to insurance, 

information regarding those claims may be relevant to the cause of the fire and 

resulting damages alleged in the Complaint. Again, Plaintiffs cannot unilaterally limit 

the scope of a facially relevant discovery request which may lead to disclosure of 

admissible evidence. Id. Defendant submits the same argument in response to FMIC’s 

objections to Request number 7 and Interrogatory number 2. 

12. In addition, Ball Corporation’s responses Interrogatory number 15 and 

Request number 20 are insufficient to the extent that they state that Ball Corporation has 

no document relating to the Monticello plant for the three year period prior to the 

incident alleged in the Complaint. Defendant has requested any and all documents 

relating to any lawsuits, administrative proceedings, complaints, or notices in which 

Ball Corporation alleged or asserted that a person or entity negligently rendered 

services, breached any contractual provision or warrant, or violated any administrative 

rule or regulation relating to any work or services the person or entities performed for 

Ball Corporation. First, the three year time period in which Ball limits itself for 

producing documents relating to any lawsuits does not conform to Defendant’s request. 

Second, the request is not limited to just the Monticello plant. Such evidence may be 

admissible for a number of purposes, such as proof of plan, motive, pattern, or lack of 

accident, and therefore discoverable. See, Mathis v. Phillips Chevrolet, 269 F.3d 771, 775 

(7th Cir. 2001). 

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 13. Further, Ball Corporation’s objection to Interrogatory number 19 and 

FMIC’s objection to Request number 5 on the basis that the requests are overly broad, 

unduly burdensome, and not reasonably calculated to lead to the discovery of relevant 

information is improper. Defendant has requested Ball to identify each fire - with an 

origin in an IBO furnace and/or any associated duct work - that has occurred at any 

manufacturing facility Ball has operated from May 23, 2004 to present, stating the date 

of each fire; the cause of each fire; the contributing factors of each fire; the losses Ball 

incurred from each fire; how Ball remedied its financial losses from each fire; identify 

the cause number of any resulting lawsuits; and, to what or to whom Ball attribute the 

cause of each fire. As described above, evidence of prior fires, their causes, and any 

resulting insurance claims or lawsuits is relevant information that must be disclosed. 

Information regarding past fires and insurance claims need not be admissible to be 

discoverable. Fed. R. Evid. 26(b)(1). It only need to appear reasonably calculated to lead 

to the discovery of admissible evidence. Id.; Chavez v. Daimler Chrysler Corp., 206 F.R.D. 

615, 619 (S.D. Ind. 2002). If prior fires occurred – and Defendant knows that they did – 

which started or progressed in a similar manner, that information could lead to 

evidence such as chronic neglect of ductwork maintenance – admissible to show Ball 

Corporation’s own negligence in this case (one of Defendant’s asserted affirmative 

defenses) and for impeachment purposes. 

 14. Defendant also disagrees with FMIC’s objections to Request number 4 and 

Interrogatory number 3 regarding the underwriting file pertaining to the risk 

assessment investigation of the Ball Corporation plant and the identity of the person 

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who performed the risk analysis as part of that underwriting process. Defendant knows 

that there were prior fires and FMIC’s inspection and underwriting files are relevant to 

the pending litigation. 

 15. Defendant requests an Order be entered compelling Plaintiffs to 

supplement their discovery responses consistent with Fed. R. Civ. P. 34(b)(2)(E)(i) and 

Fed R. Civ. 26. 

II. Averments relating to the deficiencies of FMIC’s privilege log.

 16. On July 24, 2017, counsel sent FMIC a letter pursuant to the requirements 

of Federal Rule of Civil Procedure 37(A)(1) in an effort to informally resolve the 

deficiencies of FMIC’s privilege log. (See, Exhibit 3). 

17. On July 26, 2017, FMIC responded to counsel’s letter, via e-mail, stating 

that its privilege log contains all of the information required by the federal rules. (See, 

Exhibit 4). 

18. Federal Rule of Civil Procedure 26(b)(5)(A)(ii) requires that a privilege log 

must “describe the nature of the documents, communications, or tangible things not 

produced or disclosed – and do so in a manner that, without revealing information 

itself privileged or protected, will enable other parties to assess the claim.” That 

description must include all of the following information: (1) the name and job title or 

capacity of the author(s)/originator(s); (2) the names of all person(s) who received the 

document or a copy of it and their affiliation (if any) with the producing party; (3) a 

general description of the document by type (e.g., letter, memorandum, report); (4) the 

date of the document; and (5) a general description of the subject matter of the 

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document. In re Bridgestone/Firestone, Inc., ATX, ATX II, & Wilderness Tires Prods. Liab. 

Litig., 129 F.Supp.2d 1207, 1218-19 (S.D. Ind. 2001). 

19. FMIC’s privilege log is insufficient to the extent that a majority of the 

subject matter descriptions are cryptic and do not enable counsel to assess FMIC’s 

privilege claim. For example, the description “Email with attachments A-B letter (FMIC 

0001140)” in no way, shape or form allows for the determination of whether the 

documents described qualify as privileged. Counsel counts a total of nine other 

descriptions witch are similarly inadequate. Attached as Exhibit 5 is a copy of FMIC’s 

privilege log. The subject matter descriptions marked with a red X are the descriptions 

that counsel submits need to be revised to conform to the requirements of Fed. R. Civ. 

P. 26(b)(5)(A)(ii) and the 7th Circuit concerning privilege logs. 

20. Furthermore, FMIC’s privilege log lists the documents by their “Bates 

Numbers,” but does not identify which Request for Production each document is 

responsive to. This identification of documents is akin to the “dump trucking” of 

discovery responses which counsel addressed in its letter to FMIC on June 19, 2017. 

21. Defendant requests an Order be entered compelling Plaintiffs to 

supplement their privilege log consistent with Fed. R. Civ. P. 26(b)(5)(A)(ii). 

WHEREFORE, Air Tech, by counsel, respectfully requests that the Court enter an 

Order compelling Plaintiffs to supplement their discovery responses and privilege log 

to conform to the requirements of Fed. R. Civ. P. 34 and Fed. R. Civ. P. 26; that Plaintiffs 

be ordered to pay Air Tech’s attorney fees for the bringing and prosecuting of this 

Motion to Compel Discovery; and for all other just and proper relief. 

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 s/ Andrew B. Miller 

 Andrew B. Miller 

 Starr Austen & Miller, LLP 

 201 South Third Street 

 Logansport, IN 46947 

 (574) 722-6676 

 (574) 753-3299 

 miller@starrausten.com

 ATTORNEYS FOR DEFENDANT 

CERTIFICATE OF SERVICE 

 I hereby certify that on the 16th day of October, 2017, a true and correct copy of 

the above and foregoing Defendant’s Motion to Compel Discovery was served upon 

Mark N. Senak, Esq., Senak Keegan Gleason Smith & Michaud, Ltd., 621 South 

Plymouth Court, Suite 100, Chicago, IL 60605 by depositing the same in the United 

States Mail with sufficient first class postage affixed. 

 s/ Andrew B. Miller 

 Andrew B. Miller 

100116.004/motion to compel 

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