Penalty Enforcement and Reform Act of 2004 (the “Act”), required granting of the motion to compel.’°
According to the reply brief, the Agreement obligated Marsulex and Chemtrade to provide “full
cooperation” in providing witnesses for interviews, depositions and trial, and that the Agreement had been
breached as it pertained to Mr. Cadwell and Ms. Dubeau. (Reply, at 8). Given the lateness of the
argument, Marsulex and Chemtrade moved to strike any reference to the Cooperation Agreement."

There is substantial merit to the defendants’ position that arguments raised for the first time ina
reply brief are waived, and that the court should disregard or strike the arguments. See Carter v. Tennant
Co., 383 F.3d 673, 679 (7" Cir. 2004). Application of the waiver doctrine in this context ensures that a
party’s right to be heard is not abridged and that the court does not have a one-sided presentation, with
its inevitably adverse effects on the accuracy of the judicial process. Cf Adamson v. California, 332
U.S. 45, 59 (1946)(Frankfurter, J., concurring)("the judicial process [is] at its best" only when there are
"comprehensive briefs and powerful arguments on both sides...."); Brandeis, The Living Law, \0Il1.L.
Rev. 461,470 (1916) ("ajudge rarely performs his functions adequately unless the case before him is
adequately presented.").

However, courts also have discretion to allow the filing of a surreply. Johnny Blastoff, Inc. v. Los

'© The Act and Marsulex and Chemtrade’s Leniency Agreement with the government are
discussed in their Memorandum of Law in Support of Their Agreed Motion for a Finding of “Satisfactory
Cooperation” and Limitation of Damages Pursuant to the Antitrust Criminal Penalty Enhancement and
Reform Act of 2004 filed with Judge Coar on June 30, 2005.

" Courts are uniform in holding that the kind of gamesmanship involved in getting the last word, is
improper and has no place in the judicial system. Pike y. Caldera, 188 F.R.D. 519, 537 (S.D. Ind. 1999);
United States v. Portis, 542 F.2d 414, 418 (7" Cir. 1976) (condemning “gamesmanship in getting the last
word”), That is what occurs, whether intended or not, where, as here, a party advances arguments and
provides new factual supporting information in a reply brief.

14


Inthe instant case, the answers to the questions were not shrewdly calculated to evade; they were
direct responses to direct questions. The law requires nothing more.

B
Interrogatories 2, 3, 7, 9, 10 and 11

Plaintiffs raise another issue with regard to Koch’ s interrogatory responses. They complain that
Koch answered interrogatories 2, 3,7, 9, 10 and 11, in whole or in part, by referring plaintiffs to various
unspecified documents Koch had previously produced. For example, interrogatory 2 asks:

For each division, department or other operating unit of your company engaged in the

production, marketing, distribution or sale of sulfuric acid during the relevant time period,

set forth its address, main telephone number, the name of each person who was in charge

during the relevant time period, the general nature of the activities which it conducted, and

its dates of operation.

Koch responded by providing the names of the individuals who held the title of president at its sulfuric acid
divisions and the dates they held that office. As for the remainder of the information requested, Koch
referred plaintiffs to the documents it would be producing. Those documents were produced by the
hundreds of boxfuls, which were neither labeled nor organized to correspond to plaintiffs’ production
requests. (Plaintiffs’ Reply at 5).

Koch initially responded to plaintiffs’ interrogatories on November 23, 2004. Thereafter, plaintiffs
expressed their dissatisfaction with some of those responses, the parties conferred, and Koch agreed it
would supplement certain responses that plaintiffs felt were inadequate. This was memorialized ina letter
from plaintiffs’ counsel dated December 17, 2004. (Plaintiffs ’ Exhibit L). Six months later, on June 24,

2005, Koch provided plaintiffs with its supplemental responses.

Of the interrogatories that plaintiffs have made the subject of their motion, the December 17" letter


strongly suggest that an award of fees here would not further the goal of deterrence and would be “unjust.”
Discovery was rapidly coming to a close, and there was a heightened sense of the need to complete
discovery, which the plaintiffs believed to be significant to their case. Whether the Marsulex deposition
notices were timely under the circumstances was reasonably debatable, and thus, is substantially justified
within the meaning of Rule 37(a)(4). 7 Moore’s Federal Practice, §37.23[2] (2004).

While the insistence that the defendants have not complied with certain of the interrogatories cannot
be deemed objectively reasonable, where, as here, a motion to compel is granted in part and denied in part,
acourt may apportion the reasonable expenses incurred in relation to the motion in ajust manner. Rule
37(a)(4)(C); 7 Moore’s §37.23 [4][b]. An appropriate resolution of the competing motions for fees under
the circumstances of this case—- and one which is faithful to the discretion to apportion reasonable expenses
— is to deny the parties’ respective motions for fees.

CONCLUSION

For the foregoing reasons, the plaintiffs’ motion to compel defendants, Koch Industries, Inc. and
Marsulex, Inc., [#168] to comply with certain outstanding discovery requests is GRANTED in part and
DENIED in part. The motion of defendants, Koch Industries, Inc, and Marsulex, Inc., to strike certain
portions of plaintiffs reply memorandum [#210] is denied. The cross-motions for fees [#168 and #210]

are also denied.

ENTERED:
GISTRATE JUDGE
DATE: 8-26-05

18


and the specification must be sufficiently detailed so that the plaintiffs can “as readily as can [Koch]” locate
and identify the records. To the extent that there were any meetings and communications, the existence,
content and course of which were not disclosed in the documents — and it seems unlikely that there
were not such events—Koch must disclose with reasonable specificity, that a meeting or communications
occurred, what was said, by whom, who was present, and where or how the meeting or communication
occurred. If Koch’s position is that there is no information in their possession regarding the existence and
content of meetings and communications as set forth in interrogatory 11, beyond what is reflected in the
documents, it must say so unambiguously in answer to interrogatory 11.

il
Depositions of Marsulex’s Employees

On June 14, 2005, slightly more than two weeks before the close of discovery, plaintiffs served
deposition notices on Marsulex —as well as the other defendants — requesting the depositions of Doug
Cadwell and Sharon Dubeau. (Plaintiffs’ Exhibit O). According to Marsulex, plaintiffs had known about
these witnesses since November of 2004, as a result of earlier discovery. The dates requested for Ms.
Dubeau and Mr. Cadwell were June 28" and June 29", respectively — about ten business days’ notice for
both—and the locale was the Chicago office of plaintiffs’ counsel. Both witnesses are Canadian citizens
residing in Toronto, Ontario. Marsulex’s counsel responded to plaintiffs’ notice by fax on June 16",
expressing concern about the timeliness of the notices and indicating that scheduling issues precluded taking
the depositions on the requested dates. In closing, he invited further input from plaintiffs’ counsel as to
scheduling the depositions. (Marsulex’s Exhibit B).

According to the affidavit of Marsulex’s counsel, plaintiffs’ counsel did not respond until June 30°,


interrogatory 11, plaintiffs asked Koch to:
state whether you had communications, meetings or negotiations with any other producer,
supplier or distributor of sulfuric acid relating in any manner to the reduction or cessation
of the production of sulfuric acid generally, or any specific grade, strength or type of
sulfuric acid. If so, please state:
a) The identities of each supplier, producer or distributor;
b) The identities of all participants in each such communication, meeting negotiation
c) The dates and locations of each such communication, meeting or negotiation;

d) Who initiated each such communication, meeting or negotiation;

e) Whether any agreement or contract was entered into as a result of any such
communication, meeting or negotiation; and

f) The terms and effective dates of any contract entered into as a result of any such
communication, meeting or negotiation.

In response, Koch referred plaintiffs to the documents that it would be producing in response to
plaintiffs’ document requests and to documents that it would be producing in lieu of answers to
interrogatories 12, 14 and 15. Koch claimed that “the burden of deriving or ascertaining the answer to
Interrogatory No. 11 is substantially the same for Plaintiffs as for [Koch].” This answer did not discharge
Koch’s obligations under Fed.R.Civ.P. 33(d):

Where the answer to an interrogatory may be derived or ascertained from the business

records of the party upon whom the interrogatory has been served .. .and the burden of

deriving or ascertaining the answer is substantially the same for the party serving

the interrogatory as for the party served, it is a sufficient answer to such interrogatory

to specify the records from which the answer may be derived .. . A specification shall

be in sufficient detail to permit the interrogating party to locate and to identify, as

readily as can the party served, the records from which the answer may be

ascertained. (Emphasis supplied).

Invocation of the Rule requires first that the information actually be obtainable from the documents.


indicates that plaintiffs sought supplemental response for only interrogatories 9 and 11. Plaintiffs’ letter did
not mention Koch’s responses to interrogatories 2 or 10, specifically stated that plaintiffs had no objection
to Koch’s response to interrogatory 3, and did not express any objection to Koch’s response to
interrogatory 7. (Plaintiffs’ Exhibit L).4 Thus, Koch cannot now be held accountable, after the close of
discovery, for failing to supplement its responses to interrogatories 2, 3,7, or 10. Motions to compel must
be timely. This aspect of the motion was not.

While the plaintiffs’ motion to compel, filed on the day discovery was to close, is not necessarily
untimely in all respects, see Packman v. Chicago Tribune Co. 267 F.3d 628, 647 (7° Cir. 2001)(court
has discretion to determine whether plaintiffs’ tardiness constitutes undue delay), it is far too late for
plaintiffs to complain of responses that should have been addressed in its December 1 7" letter. If plaintiffs
were dissatisfied with Koch’s responses to interrogatories 2, 3,7, and 10, they should have indicated as
much when they lodged their complaints regarding the other responses, or at least before Koch provided
its supplemental responses on June 24, 2005. That portion of plaintiffs’ motion addressing Koch’s
responses to interrogatories 2, 3, 7, and 10, then, is denied.

Conversely, as plaintiffs had expressed their displeasure with Koch’s responses to interrogatories
9 (discussed above) and 11 in December of 2004, and Koch did not serve its supplemental responses until

about a week before the close of discovery, plaintiffs’ motion is timely with regard to those answers. In

4 Interrogatory 3 requested the names of Koch’s “current and former officers, directors,
employees, or agents who had any policy-making or supervisory responsibilities or duties with respect to
the production, marketing, distribution, sale or pricing of sulfuric acid.” While Koch did refer plaintiffs to
the documents it would be producing in response, it also listed those individuals, along with the dates of
their tenures. This was a sufficient response. In addition, Koch indicated it would locate Greg Schmidt so
that plaintiffs could depose him.


is an equivalency of burdens or that the specification was in sufficient detail to permit the location and
identification with the same degree of effort and efficiency that Koch could bring to the task. See Morin
v, Nationwide Federal Credit Union, No. 3:03CV277(CFD)(TPS), 2005 WL 1894611, *2 (D.Conn.
Aug. 10,2005)(reference to documents that were voluminous in number, were not Bates-labeled, that
contained a range of categories of correspondence, records, notes, documentation on numerous topics,
and in many instances were not readily identifiable, was inadequate response under Rule 33(d));
Cambridge Electronics Corp. v. MGA Electronics, Inc., 227 F.R.D. 313, 323 (C.D.Cal.
2004)(reference to twenty-eight boxes of documents, without specifying particular documents, not a
sufficient specification under Rule 33(d)); Inre G-1 Holdings Inc.,218 F.R.D. at 438 (sweeping reference
to 60 boxes of documents failed to provide guidance and neglected duty to specify documents by category
and location).

In short, as applied to this particular motion, Rule 33(d) requires substantially more than making
available a documents repository. ° Koch has not shown that the burden of deriving or ascertaining the
answer to the question of whether there were any meetings or communications with sulfuric acid producers
or suppliers relating to the reduction or cessation of sulfuric acid is “substantially the same” for the plaintiffs
as it is for Koch or that a complete answer to that question will be found in the documents. Thus, the
motion to compel is granted as to interrogatory 1!.

IfKoch chooses to continue to invoke Rule 33(d), it must provide a specification “in sufficient detail

to permit [the plaintiffs] to locate and to identify the records from which the answer may be ascertained,”

© A different result could well obtain under different circumstances.

9


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

)
In Re SULFURIC ACID ANTITRUST) MDL Docket No. 1536
LITIGATION y Case No. 03 C 4576

)

) Judge David Coar

) Magistrate Judge Jeffrey Cole

)

MEMORANDUM OPINION AND ORDER

INTRODUCTION

This is a multi-district, antitrust case involving allegations that the defendants conspired to raise, fix,
maintain or stabilize the price of sulfuric acid in the United States in violation of Section 1 ofthe Sherman
Act, 15U.S.C. § 1. Plaintiffs filed a consolidated amended class action complaint on September 5, 2003,
and then added Koch and Marsulex as defendants when they filed their second amended consolidated
complaint on May 24, 2004. On July 1, 2005, the day discovery closed, plaintiffs moved to compel Koch
to answer outstanding interrogatories and to compel Marsulex to produce Sharon Dubeau and Doug
Cadwell for depositions.'

Plaintiffs have moved to compel defendants, Koch Industries, Inc. (“Koch”) and Marsulex, Inc.
(“Marsulex”), to comply with certain outstanding discovery requests. The defendants contend that they

have complied or that the requests are otherwise improper. For the reasons that follow, the motion is

| Plaintiffs also sought to compel Koch to produce Gregory Schmidt for deposition. There was
some difficulty locating Mr. Schmidt, and, as a result, his deposition could not be scheduled until after the
July 1" discovery cut-off date. The parties have agreed to take the deposition at a mutually convenient
time thereafter.


cast where, as here, the case is exceedingly complex, the depositions are to occur virtually hours before
the discovery cut-off, and it was obvious-or at least probable-that the schedules of the deponents anda
number of lawyers would be unable to accommodate the belatedly filed notices. The plaintiffs were keenly
aware ofall of these facts and of the competing demands imposed by the other discovery disputes that had
been percolating for some period.

It was notas though there had been some impropriety, and the identities of the witnesses had been
concealed by the defendants until late in the game. Obviously, in that case the defendants would have no
basis to complain. Compare R.H. Stearns Co. v. United States, 291 U.S. 54, 61-62 (1934)("He who
prevents a thing from being done may not avail himself of the non-performance which he has himself
occasioned. ...”). So faras the present record reveals, the plaintiffs waited months before taking any
action and even then languished in inaction after Marsulex’s prompt response to their deposition notices.
Thus, in the context of this case, the notices were not reasonable or timely.

Judge Coar’s Supplemental Standing Order on Pretrial Procedures in Civil Cases states that, “{a]ll
discovery requests/notices should be initiated in time for responses to be completed ... by the discovery
cut-off date.” Obviously, if the notices of deposition to the Marsulex employees were unreasonable, it
necessarily follows that Judge Coar’s Supplemental Standing Order would be violated, for the discovery
would not then have been initiated in time to be completed by the July 1“ cut-off date.*

Inconclusion, as they applied the Marsulex employees, plaintiffs did not pay sufficient heed to the

8 The original discovery deadline was September 10, 2004. Plaintiffs sought, and received, an
extensions of that date to April 29, 2005. In March 2005, they obtained an additional extension to July 1,
2005. In setting this final date, Judge Coar made clear that no further arguments for extensions would be
entertained.

12


the day before the July 1“ discovery deadline. In that conversation, he inquired as to alternative dates for
the depositions and “asked [Mr. Ehlman, Marsulex’s counsel] to get back to him by Tuesday, July 5, and
[Mr. Ehlman] agreed to do so.” (Defendants’ Brief, Exhibit C, Declaration of Todd Ehiman). The
next communication between the parties was apparently this motion, filed on July 1, 2005 — four days
before Marsulex’s promised response and without complying with Local Rule 37.2.”

Rule 30(b)(1), Federal Rules of Civil Procedure, requires the provision of “reasonable notice” of
depositions. “Obviously no fixed rule can be laid down because much will depend on the other
circumstances of the particular case.” 8A C. Wright & A.Miller, Federal Practice & Procedure: Civil §
2111 (1994). An obvious fact to be considered is the time between the notice and the deposition, with an
eye toward preparation and travel. See, e.g., U.S. v. Philip Morris Inc., 312 F.Supp.2d 27, 36-37
(D.D.C. 2004)(notice of three business days, “especially to busy litigators who need to prepare to testify
about events occurring six to nine years previously,” does not constitute “reasonable notice.”); Harry A.
y. Duncan, 223 F.R.D. 536, 538-39 (D.Mont. 2004)(“It is difficult to conceive how a party can
adequately prepare for 85 depositions within two weeks.”); Vardon Golf Co., Inc. v. Supreme Golf
Sales, Inc., No. 89 C 2654, 1989 WL 153335, *1-2 (N.D.III. Nov. 2, 1989)(four days notice of
deposition at distant locale unreasonable).

Thus, ten business days’ notice would seem reasonable. But, just as negligence in the air does not
exist, neither does reasonableness: the analysis is necessarily case-specific and fact-intensive. What would

be reasonable even ina late stage of a relatively simple case with few lawyers may take ona very different

7 Given the importance of the issues and the fact that they are fully briefed, 1 have discretion to
consider the motion and the responses on the merits.

11


In addition, the burden of deriving or ascertaining the answer must be substantially equivalent and there
must bea sufficiently detailed specification of the records to permit the interrogating party to find the
document as readily as can the party served. These are not optional requirements. Trading Technologies
Intern., Inc. v. eSpeed, Inc.,No. 04 C 5312, 2005 WL | 300778, *2 (N.D.II. April 28, 2005). As such,
referring to business records en masse, without specifying particular documents is “an abuse of the option.”
Bonds v. District of Columbia, 93 F.3d 801, 811 (D.C.Cir. 1996)(citing Fed.R.Civ.P. 33(c) Advisory
Committee’s Note (1980 amendment)). The Rule was intended to make clear that the party responding
“has a duty to specify, by category and location, the records from which the answers to the interrogatories
can be derived.” Fed.R.Civ.P. 33(c) Advisory Committee’s Note (1980 amendment), citedin mre G-I
Holdings Inc., 218 F.R.D. 428, 438 (D.N.J. 2003). Koch has done nothing of the kind. 5

Instead, ithas produced a massive amount of documents and has left the plaintiffs to sift through
them to find the answers to Interrogatory 11. Itis anything but clear that the existence of “communications,
meetings or negotiations” with other sulfuric acid producers, suppliers or distributors would be
ascertainable simply from reviewing cold records. And even ifa partial answer could be obtained from
sucha review, the plaintiffs are entitled to complete disclosure, which cannot be obtained by pouring
through a mountain of material. Similarly, it cannot be said with any measure of confidence whether the
documents would reveal whether agreements were entered into “as the result of any” of the defined

involvements between Koch and third parties. Finally, there is nothing to support a conclusion that there

5 There is no affidavit or certification or even an explanation by counsel that would provide an
adequate basis from which it could be determined that there was a substantial equivalency of burdens or
that it was impossible to do more than specify boxes of documents as being possible repositories of the
information necessary to answer the interrogatory.


(Plaintiffs’ Exhibit M, at 3)(Emphasis supplied).

Neither interrogatory 9(c) nor 9(d) required any explanation of the reasons for the reduction in
sulfuric acid production; each merely asked for an explanation of the reasons for the cessation of sulfuric
acid production. (Plaintiffs’ Exhibit K, at 11; Plaintiffs’ Exhibit M, at 3) (Emphasis supplied). In
response to interrogatory 9(c), Koch listed the dates it operated — and ceased to operate — each facility.
(Id.,at 12). The dates when production was reduced may be garnered from the tables Koch submitted
in response to interrogatory 9(b). In response to interrogatory 9(d), Koch explained the reasons for the
cessation of production at each of its former plants. (/d., at 12-14). Nor does the correspondence of
plaintiffs’ counsel ask for an explanation for any reductions in production: “Itold you that we need to know
which plants closed or decreased production as opposed to simply being sold.” (Plaintiffs' Reply in
Support of their Motion to Compel, at 6)(Emphasis supplied).

The letter’s author may have had in mind the question of why Koch decreased production at certain
of its facilities, but if so, it was not properly communicated in the letter, any more than it was in the
interrogatories. Lawyers are not endowed with the gift of prophecy or clairvoyance. Ballard v. Cit. Cas.
Co., 196 F.2d 96, 102 (7th Cir. 1952). They cannot crawl into their adversary’s minds. Cf Posner,
Overcoming Law, 276 (1995). For better or worse, the American system isan adversarial one, and while
lawyers are constrained quite appropriately by a strict set of ethical rules, they have no obligation to assist
an opponent in establishing claims. F.E.L. Publications v. Catholic Bishop of Chicago, 1989 WL 100006
*3 (N.D.III. Aug. 22, 1989); Korman v. Shull, 184 F.Supp. 928, 936 (W.D.Mich. 1960). Consequently,
the defendants were only obligated to answer the questions that were asked, and were not required to

guess that information beyond that which was specified was being sought.

4


Angeles Rams Football Co., 188 F.3d 427, 439 (7" Cir. 1999), cert. denied 528 U.S. 1188 (2000);
Beard v. Seagate Technology, 145 F.3d 1159 (10" Cir. 1998); Commonwealth Edison v. NRC, 830
F.2d 610, 621 (7 Cir. 1987); Fenster v. Tepfer & Spitz, Lid., 30) F.3d 851,859 (7" Cir. 2002); Gold
v. Wolpert, 876 F.2d 1327, 1330 n.6 (7" Cir. 1989). This vouchsafes the aggrieved party’s right to be
heard and provides the court with the information necessary to make an informed decision. Because of
the possibility that the Cooperation Agreement was relevant to proper resolution of the motion to compel,
initially asked for additional briefing and requested a copy of the Agreement. Having reviewed the
Agreement (which remains under seal), it now appears that further briefing is unnecessary.

There is nothing in the Agreement that supports the plaintiffs’ argument. As the defendants’ motion
to strike correctly points out, the plaintiffs’ parsing of the Cooperation Agreement is somewhat inaccurate.
The difficulty is not what is quoted, but what is omitted. Indeed, by selectively excising a single sentence
from the Agreement, while ignoring other provisions, the reply brief is quite misleading.

The Agreement does require Marsulex and Chemtrade to provide “full cooperation” “with respect
to discovery. ...” But this general clause is set forth under the heading, “C. DOCUMENTS.” What the
reply brief carefully omitted was the truly relevant portion of the Agreement, which appears under the apt
heading, “D. WITNESSES.” It states that §213(3)(b) of the Act requires the defendants “to use their best
efforts to secure and facilitate from cooperating individuals their participation in. .. depositions. ...” And
here is the decisive provision: “Marsulex and Chemtrade agree to make available, upon reasonable notice,

their current directors, officers and employees who are believed to have [relevant] knowledge... . by..

1S


later. See New Hampshire v. Maine, 532 U.S. 742, 749-51 (2001); Opsteen v. Keller Structures, Inc.,
408 F.3d 390, 392 (7" Cir. 2005). The second is the law of the case doctrine. See Jarrard y. CDI
Telecommunications, Inc., 408 F.3d 905 (7" Cir. 2005). To the extent that plaintiffs argue that Marsulex
has somehow breached the agreement —unconvincingly, given the facts of the case~ they are met with
Judge Coar’s July 7,2005 finding of “Satisfactory Cooperation,” which plaintiffs have not moved to vacate
and thus have effectively ratified.

Ill.
THE MOTIONS FOR ATTORNEYS’ FEES

Finally, there is the question of attorneys’ fees. Rule 37(a)(4)(B) provides that ifa motion for an
order compelling discovery is denied, the court “shall, after affording an opportunity to be heard, require
the moving party or the attorney filing the motion, or both of them, to pay to the party or deponent who
opposed the motion the reasonable expenses occurred in opposing the motion, including attomeys’ fees,
unless the court finds that the making of the motion was substantially justified or that other circumstances
make an award of expenses unjust.” “The great operative principle of Rule 37(a)(4) is that the loser
pays.” Rickels v. City of South Bend, Indiana, 33 F.3d 785, 786 (7" Cir. 1994). Fee shifting, when
the judge must rule on discovery disputes, encourages their voluntary resolution and curtails the ability of
litigants to use the legal process “to heap detriments on adversaries. .. without regard to the merits of the
claim.” /d.

Since Rule 37(a)(4) is bottomed on the principle of deterrence, 7 Moore’s Federal Practice at
§37.23[1] at 37-42, where a fee award will not discourage abuses of the discovery process, amotion for

fees should not be granted. In the instant case, the very reasons that require denial of the motion to compel

17


A
Interrogatory 9

Inreviewing a claim that an answer to an interrogatory is not responsive or is incomplete, the initial
focus is on the question, not the answer, for on the question you ask depends the answer you get. “Putting
the wrong question is not likely to beget right answers even in law.” Vanston Bond. Holders Prot. Comm.
y. Green, 329 U.S. 156, 170 (1946)(Frankfurter, J., concurring). Plaintiffs have not pointed to any
interrogatory that requested an explanation of the reasons why Koch reduced production of sulfuric acid
in its plants at various times. Interrogatory 9(b) surely did not. It asked for “the annual volume of each
different grade, strength or type of sulfuric acid produced or stored for each year of the relevant time
period.” (Plaintiffs’ Exhibit K). In its supplemental response, Koch listed the total “throughput” for each
ofits facilities during the putative class period ineleven tables. This would seem a suitable response since
the interrogatory does not request any explanation for the reduction in volume at the various plants.
Similarly, Interrogatory 9(a) does not address reductions in volume or the reasons therefor, but simply
seeks the various grades of sulfuric acid Koch produced. ?

The motion to compel does not mention interrogatories 9(c) or 9(d), even though they seem slightly
more to the point, as they request:

c) The date(s) you ceased producing or reduced production of sulfuric acid or any specific
grade, strength or type of sulfuric acid; and

d) If your answer to sub-part c) of this interrogatory indicates that you reduced or ceased
manufacturing sulfuric acid at any of your facilities, please state all reasons that you ceased
production of sulfuric acid or any grade, strength or type of sulfuric acid.

3 Neither the plaintiffs’ moving papers nor the Koch’s response contains anything captioned
“Interior 9(a).” Consequently, I assume that Interior 9(a) is a typographical error and refers to
Interrogatory 9(a).


granted in part and denied in part?
ANALYSIS

I
Koch’s Responses to Plaintiffs’ Interrogatories

Koch submitted its answers and objections to plaintiffs’ first set of interrogatories in late November
2004. Plaintiffs were troubled by several of the responses, including some where Koch referred plaintiffs
generally to the documents it would be producing. (Plaintiffs ' Exhibit K). Following consultation among
the parties, it was agreed by mid-December 2004 that Koch would supplement certain responses that
plaintiffs felt were inadequate. (Plaintiffs’ Exhibit L), On June 24, 2005, Koch served its supplemental
response to the first set of interrogatories. (Plaintiffs’ Exhibit M). On July 1,2005, plaintiff filed the
instant motion to compel, complaining that:

1) Inits supplemental response to interrogatory # 9(b), “Koch has failed to provide any

information as to why various of its plants reduced production at various times as indicated

in its response to Interior # 9(a).”

2) Koch has improperly invoked Rule 33(d) of the Federal Rules of Civil Procedure to

answer many of plaintiffs’ interrogatories, without identifying which documents Koch

contends contain the answer to plaintiffs’ interrogatories.

(Plaintiffs’ Motion and Supporting Memorandum to Compel, at 8).

2 Plaintiffs’ motion originally was also addressed to Pressure Vessel, Inc. (“PVS”) and Noranda
Inc,, Falconbridge Limited, and Norfalco LLC (the “Noranda defendants”). Plaintiffs and PVS have
since indicated that they anticipate being able to work out their discovery compliance issues. The
Noranda defendants have responded to the plaintiffs’ motion but have also filed a motion to strike it,
which engendered an additional round of briefing. Consequently, this order is confined to Koch and
Marsulex.


various discovery cut-offs. There is little in the way of persuasive explanation from the plaintiffs.” As such,
and especially because the conditions giving rise to their predicament are attributable to having waited to
the last minute to notice the depositions, the motion to compel the depositions of Mr. Cadwell and Ms.
Dubeau is denied. See Ultratech, Inc. v. Tamarack Scientific Co., 2005 WL 696979, *1 (N.D.Cal.
March 17, 2005) (“The emergency was created by [movant], by waiting until the last minute to notice these
expert depositions.”).

Complex cases such as this one must have enforceable discovery deadlines. Harris v
Owens-Corning Fiberglass Corp.,102 F.3d 1429, 1433 (7" Cir. 1996). The practical and institutional
reasons for the need for finality are all too apparent. First, there is the inevitable shortness of life. Beyond
that, “[tJime limits coordinate and expedite a complex process; they pervade the legal system, starting with
the statute of limitations.” United States v. Golden Elevator, Inc., 27 F.3d 301, 302 (7" Cir,1994).
Without them there would be no end to litigation.

c
The Cooperation Agreement And The Motion For A Finding Of “Satisfactory Cooperation”

There isa final point that needs to be discussed. The plaintiffs argued for the first time in their reply

brief that their Cooperation Agreement with Marsulex and Chemtrade, pursuant to the Antitrust Criminal

° Rather than an explanation, there is the claim that Marsulex, in violation of its Cooperation
Agreement with the plaintiffs, failed to provide “full cooperation in producing witnesses for interviews,
depositions and trial.” (Plaintiffs' Reply in Support of their Motion to Compel, at 8). This argument is
discussed at 13-15, infra. There was certainly nothing in the many months preceding the deposition
notices that prevented the plaintiffs from deposing Mr. Cadwell and Ms. Dubeau. Moreover, it is unclear
what more was to be expected of Marsulex, given the lateness of the deposition notices. Marsulex
responded almost immediately that the dates would be a problem. Given the exigent circumstances, one
would have expected immediate action by plaintiffs. Yet, two weeks passed with no input from them.

13


. Gii) providing testimony at deposition. .. .” (Emphasis supplied).'* Thus, for purposes of the present
motion, the Agreement does not impose on the defendants obligations that preclude them from claiming that
the notices of deposition were untimely and unreasonable. In short, the Cooperation Agreement did not
require Marsulex and Chemtrade to be at the plaintiffs’ beck and call."

This is enough to resolve the issue. But there is an additional factor. On June 30, 2005, Marsulex
counsel, Mr. Ehlman, informed plaintiffs’ counsel that the dates in the deposition notices were unavailable.
It was agreed that Mr. Ehlman would “get back to [plaintiffs’ counsel] by Tuesday, July 5... .”
Nonetheless, on June 30", plaintiffs joined in the defendants’ motion seeking from Judge Coar a
certification of “satisfactory cooperation” under the Act. The next day, July 1, they filed the motion to
compel claiming, in effect, that Marsulex’s cooperation was anything but satisfactory. On July 7, 2005,
Judge Coar entered the very order that the plaintiffs urged him to, finding that Marsulex and Chemtrade
had satisfactorily performed their part of the bargain under the Agreement.

Two doctrines, either separately or in combination, require that, as to the reasonableness of the
Marsulex employees notices, the plaintiffs’ motion should be denied. First is the doctrine of judicial

estoppel. Litigants who take one view of the facts and prevail are equitably estopped to assert the opposite

"2 It is quite clear that Section “D. WITNESSES” is a specific provision that under basic
principles of contract construction controls the far more general reference to full cooperation in Section
“C. DOCUMENTS.” See Medcom Holding Co. v. Baxter Travenol Laboratories, Inc., 984 F.2d
223, 227 (7 Cir. 1993); Restatement (Second) of Contracts, §203(c) (1981).

‘3 The Agreement tracks § 213(b) of the Antitrust Criminal Penalty Enhancement and Reform
Act of 2004. Section 213(b) provides that a party is entitled to the single-damages limitation of §213(a) if
the court determines that the party has provided “satisfactory cooperation” to the plaintiffs, including
“using its best efforts to secure and facilitate from cooperating witnesses” their “availablility] for such
interviews, depositions, or testimony in connection with the civil action as the claimant may reasonably
require.” (H.R. 1086, 108" Cong., 150 Cong.Rec. H3656, Title II, Section 213(b)(3)(A)(i); (B)(Emphasis
supplied)).

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