individuals on this device. The defendants should be sanctioned for the costs the
plaintiffs will incur in having to re-depose individuals as well as the costs to bring this
motion.

IL

DEFENDANTS HAVE STILL NOT MADE REASONABLE
EFFORTS TO RESPOND TO PLAINTIFES' DISCOVERY

One of the possible reasons for defendants not having produced the blueprint is the
lack of effort made by the defendants in responding to plaintiffs' discovery. Several
individuals that have been deposed and still need to be deposed are former employees of
Levolor. Levolor has taken the position that it has no requirement to contact these former
employees, even though they know their identity, to gather information relevant to
plaintiffs’ discovery requests. This places the plaintiffs in the situation of deposing these
former employees only to later learn in a deposition that Levolor had not fully produced
its discovery. This is exactly what happened with Mr. Weppner's deposition. If plaintiffs
had not taken Mr. Weppner's deposition and had not brought the motion at issue, the
blueprint which is attached to the Certification would never have been produced.
Plaintiffs should not have to do defendants’ job in answering discovery. As the court

stated in Hogue v. Fruehauf Corporation, 151 F.R.D. 635 (C.D. Minois 1993):


C Plaintiffs should be awarded sanctions for the cost incurred to depose Mr.

Ireland and the cost to bring this motion.

Respectfully submitted,
JAMES E, DAHL, 0568724 MARK WACHHOLZ, as Administrator
PAUL BONADIES, 6206589 of WA of “Vo
JAMES E£, DAHL & ASSOCIATES ;
225 West Washington Street, #1125 By: AZ i re
Chicago, IL 60606, 312/641-3245 One of His Attorneys


employee of Levolor in response to any of the discovery requests made by the plaintiffs
in this lawsuit (Ireland Dep., Ex. 2, pp. 39-40). Mr. Ireland received. the documents from
various people, and then he simply turned them over to Roger Palmer (Ireland Dep., Ex.
2, pp. 21-22).
Furthermore, in his Certification, Mr. Ireland states that all of the documents
within the possession, custody and control of Newell Window Furnishings, Inc. were
searched to respond to plaintiffs’ discovery. However, in his deposition, Mr. Ireland
stated as follows:
© that the offices of Newell Window Furnishings, Inc. are not in the same place
as Levolor (Ireland Dep., Ex. 2, p. 34);

that he did not know where the offices of Newell Window Furnishings, Inc.
were located (Ireland Dep., Ex. 2, p. 35);

that he did not contact anyone at Newell Window Furnishings, Inc. about
production of documents regarding this lawsuit (Ireland Dep., Ex. 2, p. 35);

that the reason why he did not contact anyone at Newell Window Furnishings,
Inc, about production of documents for this lawsuit was that he was never
asked to (Ireland Dep., Ex. 2, p- 35).

The only basis for Mr. Jreland's statement concerning the production of the Newell
Window Furnishings, Inc. documents was that his director at one time, Mr. Rich
Coulcher, told him that documents were transferred from Newell Window Furnishings,
Inc. to Levolor Home Fashions (Ireland Dep., Ex. 2, p. 38), However, Mr. Treland does

not recall seeing any new documents coming from Newell Window Furnishings, Inc.


The very integrity of the civil justice system depends on
compliance with the discovery rules. Discovery cannot be a game
of hide and seek. Our discovery system depends in large part on
self-reporting. When discovery requests are made by a party, the
party to whom the request is made has an obligation to respond
accurately and fully. Id. at 639.

It is obvious that the defendants do not agree with such a rule. This is evident by
the employees that the defendants have had answer the plaintiffs’ discovery including Mr.
Allen Ireland who certified Newell's response even though he has always been affiliated
with Levolor. At his deposition, Mr. Ireland stated that he had been an Administrative
Assistant to the engineering department for Levolor since 1997 and then in April 2001,
his title changed to the New Product Development Coordinator because the engineering
department changed its name to New Product Development (Ireland Dep., Exhibit 2, pp.
10-11). Mr. Ireland's duties consisted of all administrative tasks for the department
including filing, faxing, mail delivery, and mail distribution (Ireland Dep., Ex. 2, p. 8).

Mr. Ireland then testified that his search for documents in response to Plaintiffs’
First Request for Production of Documents consisted of "sending an e-mail to various
engineers, marketing personnel and finance personnel requesting that they turn over any
and all documents pertaining to this case" (Ireland Dep., Ex, 2, p. 16). However, Mr.
Ireland was unable to remember what the e-mail stated in detail, he no longer has a copy
of that e-mail, and he was also unable to recall all of the people that the e-mail was sent
to (Ireland Dep., Ex. 2, pp. 16-17). Mr. Ireland never contacted Mr. Mark Weppner with

respect to the search for documents in response to Plaintiffs' First Request for Production

of Documents (Ireland Dep., Ex. 2, p.26). Mr. Ireland never contacted any former


answered that he "had insufficient personal knowledge upon which he could base an
answer and there is no other present employees of officer available to answer." Based on
this response, the trial court eventually struck Selb's affirmative defense and counter-
claim. In affirming the trial court, the appellate court found as follows:

As agent of Selb, Frey was obligated to furnish all information

available to the corporation, which responsibility was not limited

by his own personal knowledge of the situation. More

specifically, knowledge of officers and employees of Selb

Manufacturing, relative to subject matter of the instant cause is

imputed to the corporation itself. Thus Frey was duty bound to

secure all information available to Selb. This would include

information within the personal knowledge of former Selb

employces, employed by Selb at the time this action commenced.

Additionally, it would include information possessed by its

corporate counse]. Selb failed to demonstrate that the corporation

lacked information sufficient to answer the interrogatories. 481

F.2d at 1210.
Likewise, in this case, defendants have failed to establish that they have taken reasonable
steps to secure all of the information available in response to plaintiffs’ discovery
requests. This is established by the testimony of Allen Ireland who testified that he never
contacted anyone at Newell Window Furnishings, Inc. regarding plaintiffs’ discovery
requests, nor did he contact any former employees of Levolor, whether employed at the
time this lawsuit was commenced or before. In light of this blatant disregard towards
plaintiffs’ discovery requests, defendants should be compelled by this Court to:

A. Identify all employees who have been contacted to respond to plaintiffs’

discovery by stating their name, dates of employment and last known address;

B. Defendant Newell Window Furnishings, Inc. should provide a Certification

from an officer of the company that it has responded to plaintiffs’ discovery; and



DOCKEIES

DEC 24 2002
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

FILED

DEC 2.0 2002 yr

El. W. BOBBINS
este US: plsTRiGt GBUAT

MARK WACHHOLZ, as Administrator )
of the Estate of Alex Wachholz, J
on his behalf and on behalf of his wife, )
JILL WACHHOLZ and his children, )
MEGAN WACHHOLZ and )
MARLEIGHA LOSSIN, minors, )
and as father and next friend of )
MEGAN WACHHOLZ, )
Plaintiffs, )
v. ) NO, 01 C0698
)
LEVOLOR HOME FASHIONS, INC.; )
NEWELL WINDOW FURNISHINGS, INC.)
LEVOLOR HOME FASHIONS, a division of )
Newell Window Fumishings, Inc.; and )
HABITAT WALLPAPER AND )
BLINDS, INC., )
)

Judge Robert W. Gettleman

Magistrate Judge Geraldine Soat Brown

Defendants,

TO: — Joseph J. Krasovec Ill
Dan Overbey
Schiff, Hardin & Waite
Sears Tower, #6600
Chicago, IL 60606
VIA FAX: 312/258-5600

PLEASE TAKE NOTICE that we have this 20" day of December, 2002, filed with the Clerk of
the United States District Court, Illinois, the following: "Plaintiffs' Supplemental Memorandum In
Support Of Its Motion To Compel And For Sanctions"

JAMES E, DAHL & ASSOCIATES

225 West Washington Street, Suite 1125 eC D Af .
Chicago, [linois 60606 Nive oman A+hroxiles

312/641-3245 | JAttorneys for Plaintiff

AFFIDAVIT OF SERVICE BY FAX AND MAIL

The undersigned, being first duly sworn on oath, states that she served the foregoing document on
the above-named attorneys of record by facsimile and by placing a true and correct copy in the U.S. Mail

chute at 225 West Washington Street, Chicago, Illinois nee
) . = .
SUBSCRIBED AND SWORN Sahil

to before me this 20” day of
December 2002

NOTARY PUBLIC

JF WLINOIS
RES 4-10-2004

NO ?
MY SOlt 2 EMBL



See Case
File For
Exhibits



(Ireland Dep., Bx. 2, p. 38) and did no independent verification as to whether documents
that were produced in this lawsuit came from Newell Window Furnishings, Inc. (Ireland
Dep., Ex. 2, p. 39). Moreover, the e-mail that was sent out by Mr. Ireland was never sent
to anyone at Newell Window Furnishings, Inc. (Ireland Dep., Ex. 2, p. 50).

It is well established that the rules concerning response to discovery require that
the corporation select an officer or employee to gather and obtain from books, records,
other officers or employees or other sources, the information necessary to answer the
interrogatories and sign them on behalf of the corporation, not himself. In Re Folding
Carton Anti-Trust Litigation, 76 F.R.D. 417 (N.D. 1M 1977). It is clear that the
defendants have not met the burden. Mr. Ireland is not and never has been affiliated with
Newell Window Furnishings. Mr, Ireland testified that he never contacted anyone at
Newell Window Furnishings, Inc. Mr. Ireland then certified that all of the documents
from Newell Window Furnishings, Inc. have been searched. How could Mr. Ireland
possibly make such a statement if Newell Window Furnishings, Inc. never received the
request for documents and the made no contact with Newell Window Furnishings, Inc. to
produce its documents. Clearly, the defendants have not made reasonable efforts to
respond to plaintiffs’ discovery.

One case that is instructive with respect to this issue is General Dynamics

Corporation v. Selb Manufacturing Company, 481 F.2d 1204 (8th Cir. 1973). In General

Dynamics, plaintiff brought a fraud and breach of contract action against Selb with
respect to their manufacturing parts for air force airplanes. In the lawsuit, plaintiff filed

interrogatories to Selb. In responding to the interrogatories, an agent of Selb, Mr. Frey,


1
ARGUMENT

DEFENDANTS’ FAILURE TO PRODUCE THE BLUEPRINT
ATTACHED TO THE CERTIFICATION IS SANCTIONABLE

As stated in plaintiffs' motion, on April 30, 1993, Newell Operating Company
purchased Levolor Company. In November 1994, Newell Operating Company
transferred these assets and liabilities to Newell Operating Company's subsidiary, Newell
Window Furnishings. Thereafter, Newell Window Furnishings used these assets to
operate Levolor Home Fashions which is a division of Newell Window Furnishings, Inc.
In August of 1995, the Wachholzes purchased the bind at issue in this litigation which
was manufactured by Levolor in August of 1995, In January 2000, Alex Wachholz.
strangled to death in the loop of the pull cord of the blind.

Attached to the Certification of Allen Ireland is a blueprint by Newell Window
Furnishing dated December 2, 1994 for a "cord release tassel". The plaintiffs have
repeatedly requested that defendants produce all documents pertaining to any device or
method designed to reduce access to or eliminate cord loops from window blinds, The
“cord release tassel" fits within this category. The plaintiffs have taken numerous
depositions of current and former employees of Levolor without having the benefit of this
blueprint. Obviously, in a product liability action, such a device is relevant as to notice
conceming the dangerous condition of the looped pull cord as well as any possible

devices which could have remedied the dangerous condition. Plaintiffs are now in the

position of having deposed several individuals without the benefit of questioning these



evaluating safety devices separate and apart from Levolor. None of this information had
been provided to the plaintiffs by the defendants prior to Mr. Weppner's deposition.

On November 26, 2002, in response to plaintiffs’ motion, defendants provided a
certification from Mr. Allen Ireland stating that all documents within the possession,
custody and control of Newell Window Furnishings, Inc. were searched with respect to
plaintiffs’ First Request for Production of Documents. (Attached as Exhibit | is a copy of
the Certification.) Attached to the Certification was a blueprint of a device entitled "cord
release tassel" that was dated December 2, 1994. The "cord release tassel" relates to a
device designed to eliminate the hazards of a looped pull cord. This document would
have been extremely important for the depositions that plaintiffs have already taken since
it pre-dates the manufacturing of the blind at issue. The court should sanction defendants
for the cost they will incur to re-depose individuals based on this document and the costs
for having to bring this motion.

Furthermore, plaintiffs’ motion to compel requests that Newell Window
Furnishings, Inc, respond to plaintiffs’ document request. After taking the deposition of
Mr. Ireland, it is abundantly clear that Newell has still not responded to plaintiffs’
discovery. In light of this deposition testimony, which is set forth below, this Court
should order that an officer of Newell certify that it has responded to all of plaintiffs'
discovery requests. This Court should also award sanctions to the plaintiffs for the cost

in having to take Mr. Ireland's deposition and the costs incurred in bringing this motion.



DOCKETED

UNITED STATES DISTRICT COURT DEC 23 2002
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

MARK WACHHOLZ, as Administrator) FIL ED
of the Estate of Alex Wachholz, )
on his behalf and on behalf of his wife, ) 2 mer.
JILL WACHHOLZ and his children, ) pEC 20 u
MEGAN WACHHOLZ and ) anh WW. poral
MARLEIGHA LOSSIN, minors, ) gaat, 08. DUETRICT Gount
and as father and next friend of )
MEGAN WACHHOLZ, )

)

Plaintiffs,  )
v, ) NO. 01. C0698

)

) Judge Robert W. Gettleman
LEVOLOR HOME FASHIONS, INC,; )
NEWELL WINDOW FURNISHINGS, INC. _ ) Magistrate Judge Geraldine Soat Brown
LEVOLOR HOME FASHIONS, a division of)
Newell Window Furnishings, Inc.; and )
HABITAT WALLPAPER AND }
BLINDS, INC., )

)

Defendants. )

PLAINTLFFS' SUPPLEMENTAL MEMORANDUM IN
SUPPORT OF THEIR MOTION TO COMPEL AND FOR SANCTIONS

On November 12, 2002, plaintiffs filed a Motion to Compel and for Sanctions
against defendants. The motion was brought after plaintiffs took the deposition of Mr.
Mark Weppner, who was the former Product Manager of Levolor for the time period of
January 1994 through April 1997. At his deposition, Mr. Weppner testified that there
were two entities that were retained by Levolor to develop and design devices to
eliminate the loop from pull cords on blinds. Mr. Weppner also testified that defendant

Newell Window Furnishings, Inc. was manufacturing its own blinds and studying and