used in the usual course of that business and which continued to be necessary to the business were
transferred to the joint venture. Those not transferred were “packed up from [Noranda’s| offices and file
drawers” — where presumably they were kept in an organized fashion — “and transferred to storage,” where
they were no longer kept in any particular order, and where they remained until this litigation. (Response
at 4; Vasquez Declaration).

The Federal Rules of Civil Procedure, which have the force of statutes, Zapata Hermanos
Sucesores, S.A. v, Hearthside Baking Co., Inc., 313 F.3d 385, 392 (7" Cir. 2002), cert. denied, 540
US, 1068 (2003), are to be accorded “their plain meaning. . . and generally with them, as witha statute,
‘{w]hen we find the terms. . . unambiguous, judicial inquiry is complete. ...’” Pavelic & LeFlore v.
Marvel Entertainment Group, 493 U.S. 120, 123 (1989).'' The plain meaning of the 1980 amendment
to Rule 34 compels rejection of the argument that production of 350 boxes of records of a business whose
relevant activities had ceased in 1998 and which had been stored since then in ne particular order is
production of documents “as they are kept in the usual course of business.” Storing documents may bea
part of the usual course of business, but stored documents are not kept in the usual course of business
within the meaning of the Rule.

Rule 34 was amended in 1980 because of'a concern that litigants were deliberatcly mixing critical
documents with masses of other documents to hide their existence or obscure their significance. See Board
of Education of Evanston Township High School Dist. No. 202 v. Admiral Heating &3, Inc., 104

F.RD. 22, 36(N.D.II. 1984)(Shadur, J.); 8A C. Wright, A.Miller & R.Marcus, Federal Practice and

"' Courts frequently look to dictionaries to determine the plain meaning of words, Cler v. Illinois
Educational Association,__¥3d__, 2005 WL 2174427 (7" Cir. Sept. 9,2005). See also, Mississippi v.
Louisiana, 506 U.S. 73, 78 (1992).

20


memory.

One of the witnesses testified that under the mid-1980s contract Noranda and Delta were required
lo agree upon the delivered price of the sulfuric acid to the end customer. (/d. ,Ex, D, Dullea Deposition.,
at 64-67; 77-79) He also testified that cither the 1989 contract was missing an attachment or rider that
explained how the revenue sharing and pricing formula worked or that the 1989 contract incorporated by
reference the 1984 contract. (/d., Ex.D, Dullea Deposition., at 145). ‘The Noranda defendants’ counsel
relerred to this 1984 contract during at least one of the depositions. (/d., Ex, F at 207-09). Plaintiffs argue
that the deposition testimony demonstrates that the terms of the mid-1980s contract were cither in effect
during, orhad some relevance to, the period from 1988 through 2003. Plaintiffs also contend that they were
prejudiced during these depositions by not having a copy of the contract to show to the witnesses to refresh
their memory.

The Essex-Noranda contract, the plaintiffs argue, relates to what the evidence indicatcs was the
first of a series of shut-down agreements that Noranda entered into with sulfuric acid producers in the
United States, Plaintiffs contend that a review of this first contract and the correspondence and memos
surrounding the negotiations is relevant to the interpretation of the terms, provisions and intent of the later
shut-down agreements that are part of the complaint. In light of the broad definition of relevance under the
Federal Rules of Civil Procedure, the documents sought are discoverable. See Oppenheimer Fund, Inc.
v. Sanders, 437 U.S. 340, 351-52 (1978). The question then is what is the extent of the burden of

production, whether that burden outweighs the likely benefit of the documents to plaintiffs’ case, and who

is to bear the costs of production. Patterson v. Avery Dennison Corp., 281 F.3d 676, 681 (7" Cir.

2002); Rule 26(b)(2)(iii).



Report be produced, the plaintiffs were aware of its existence.

In light of Mr, Gustman’s statement in his October, 2003 letter to “entertain additional narrow,
specific requests to scarch for documents affer our initial search and production” (cmphasis supplied),
a literalist mighthave thought that it would have been permissible to wait until document production was
complete before asking for the pre-January 1, 1988 documents. But, the plaintiffs did not wait. In carly

February 2005, almost five months before documents Bates stamped 591,997 - 593,239 were produced,

the plaintiffs attempted unsuccessfully to get the 1987 Report and “additional, narrow, specific” documents.

Itis not possible, on the strength of the present record, to determine whether the plaintifls could have acted
with greater dispatch and whether, notwithstanding Mr. Gustman’ s claim, there really would have been a
necessity in February, 2005 to have reviewed “500" boxes of documents, or whether the documents she
requested could have been produced at that time without undue burden. Noris it possible to determine
the how much additional costs will result as a consequence of the Noranda defendants’ February 28, 2005
refusal to produce the 1987 Report and the contracts that were requested. These are questions for another
day and a better developed record.

The Essex-Noranda and Delta-Noranda agreements presenta slightly different circumstance.
‘Those agreements were well-known in the marketplace at Icast as carly as 1989. The January 27, 1989
issue of Fertecon Sulphuric Acid Telefax, a widcly-distributed trade publication, noted:

Norandais believed to have concluded an agreement with DuPont which will involve

closing of the latter's 195,000 yr. plant at Grasselli, NJ which will then receive Noranda

material. This arrangement is similar to that negotiated by Noranda with Essex, and

more recently with Delia.

(Response at 5, App. I, Ex. C, at 3) (Emphasis supplied), Even il'the plaintiffs were unfamiliar with this

24



ANALYSIS

L

THE NORANDA DEFENDANTS’ MOTION TO STRIKE THE MOTION TO COMPEL
A.

The motion to strike is based on the plaintiffs’ claimed noncompliance with Rule 37(a)(2)(A),
Federal Rules of Civil Procedure and Local Rule 37.2. The former provides that a motion to compel “must
include a certification that the movant has in good faith conferred or attempted to conter with the person
orparty failing to make the discovery in an effort to secure the information or material without court action.”
Local Rule 37.2 makes clear that the court sha/! refuse to hear discovery motions under Rules 26 - 37:

unless the motion includes a statement (1) that after consultation in person or by telephone

and good faith attempts to resolve differences they are unable to reach an accord, or (2)

counsel's attempts to engage in such consultation were unsuccessful due to no fault of

counsel's, Where the consultation occurred, this statement shall recite, in addition, the date,

time and place of such conference, and the names ofall parties participating thercin. Where

counsel was unsuccessful in engaging in such consultation, the statement shall recite the

efforts made by counsel to engage in consultation.

Paragraph 31 of the plaintiffs’ motion to compel has the following certification.

Plaintiffs counsel hercin certifies that there were numerous consultations with various

defense counsel at mectings, depositions and by written correspondence pursuant to Local

Rule 37.2 and Fed.R.Civ.P. 37(d) ina good faith effort to sccure the discovery responses,

documents, and depositions at issue. During these consultations, counsel for the

defendants maintained their objections to complying with the discovery obligations

discussed in this motion.
(Plaintiffs’ Motion and Supporting Memorandum to Compel, at 11). Thus, the argument that the
motion dos not “contain[] a certification or any other statement that Plaintiff's have attempted in good faith

to confer with the Noranda Defendants regarding the issues set forth in these motions” is mistaken. (Motion

to Strike Plaintiffs’ Motions to Compel, at4), Whether the certificate is sufficient isa different question.



Procedure, § 2213, at 431 (2TMed. 1994). Requiring documents to be produced “as they are keptin the
usual course of business” (emphasis supplied), precludes artifi cial shifting of documents (assuming that
the rule is adhered to). A businesses has an obvious incentive to keep needed documents in a way that
maximizes their usefulness in the day-to-day operations of the business. That incentive, which is inconsistent
with document tampering, vanishes once documents not used with regularity are sent to a storage facility,
for then it is no longer essential that they be kept with any degree of organization-as this case vividly
illustrates. Asto the documents in storage, they are no longer keptin the “usual course” of business,” they
arc kept in the usual course of “storage,”and the option granted by the first clause of Rule 34(b) no longer
exists, That leaves the producing party with the obligation to “organize and label” the documents to
correspond to the document requests. City of Wichita, Kansas. v, Aero Holdings, Inc., 2000W1.
1480499 at *1 (D.Kan. May 23, 2000), The Noranda defendants have not availed themselves of this
option.

This is not to say that production of documents as they are keptin storage is never proper under
Rule 34 (b). The discovered party must, however, show that the way in which the documents are kept has
not changed ftom how they were kept in the usual course of business. ‘That burden is not difficult, All that
isneeded is the testimony of a person with knowledge of how the records were originally keptand how
they were maintained in storage. See, e.g., Hagemeyer North America, Ine. v. Gateway Data Sciences
Corp., 222 F.R.D. 594, 598 (W.D. Wis, 2004)(compliance with Rule 34(b) shown by the declaration of
defendants’ CEO, who was familiar with the storage facility and the organization ofthe documents kept
there); Fidelity Nat. Title Insurance. Co. v. Intercounty Nat. Title Insurance. Co., 2002 WL 193385,

*3 (N.D.IM, Feb. 7, 2002).

21



committee’s notes to the 1993 amendment to Rule 33 state that the added language was intended to make

clear that objections must be specifically justified, and that unstated or untimely grounds for objection

ordinarily are waived. Ilere, as plaintiffs point out in their reply brief, the Noranda defendants raise their

“cumulative and duplicative” objection for the first time in their Response. The objection is thus waived.

That leaves the plaintiffs’ concerns about the Noranda defendants’ resort to Rule 33(d) to answer
the interrogatories. Under this rule:

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 parly serving the

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

specify the records trom 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.

This same issue was considered at length in the earlier opinion involving defendant Koch Industries.
See In re Sulfuric Antitrust Litigation.2005 WL 2059327 (N.D.II. August 26, 2005). A party
responding to an interrogatory may not take advantage of Rule 33(d) unless it can show that “the burden
of deriving or ascertaining the answer is substantially the same for the party serving the interrogalory as for
the party served.....” Magarl, LLC v. Crane Co., No. IP 02-0478-C-T/L, 1:03-CV-01255-JDT-TW,
2004 WI. 2750252, *7 (S.D.Ind. Sept. 29, 2004); Fresenius Medical Care Holding Inc. v. Baxter
Intern., Inc.,224 F.R.D, 644, 650(N.D.Cal. 2004). While another review of the documents that have
been produced would be anything but cffortless, the effort involved is not as great for the producing parties
as iLis for the plaintifls, since the former are more familiar with the documents than the plaintiffs. Added

to that familiarity is the familiarity of defense counsel, who have already undertaken at least one review of

the documents, Consequently, the defense will be more easily able to locate the answers in the documents

27


relating to zinc, copper or other materials.” (Reply at 9).!? Whether intended or not, the result is the

proverbial “needle ina haystack,” Hagemeyer North America, Inc. v. Gateway Data Sciences Corp.,

222 F.R.D. at 598, the very situation that the 1980 amendment to Rule 34 was intended to prevent.
F,

The Plaintiffs’ Claimed Responsibility For The Costs To Be
Incurred In The Production Of The Pre-January 1, 1988 Documents

‘The Noranda defendants argue that ifthe motion to compel is granted, any expense to be incurred
in obtaining the pre-1988 documents ought to be borne by the plaintiffs since, they are the cause of'any
increased costs. ‘fhe Noranda defendants contend that in February, 2004, when the 1988 Prime Report
was produced, only 90 of the 350 boxes had been reviewed by the Noranda defense team, and had the
plaintiffs acted promptly in secking the 1987 Prime Report rather than waiting until the close of discovery,

the burden and expense of searching for that and related documents would have been, ifnot non-existent,

infinitely less than it may now be, (Response, at 4-5)."*

The plaintifl's contend that the 1988 Prime Report, which led them to the 1987 Report, was “buried
in the bowels of Noranda’s massive production,” which, by February, totaled approximately 250,000
pages, and which took the plaintiffs months to find. (Reply at 5). Exactly how long it took is not clear.
But months are not years, and thus perhaps by May or June, 2004, the plaintiffs might have known about
the 1988 Report, or perhaps should have. But that is a question that cannot be decided on the present

record. Obviously by February 8, 2005, when Ms. Fait wrote to Mr, Gustman asking that the 1987

2 This representation is premised on “discussions with Noranda’s counsel. . . .” (d.).

3 This representation contrasts somewhat with Mr. Gustman’s February 28, 2005 letter to Ms.
Fait in which he said that a search would require re-review of “more than 500 boxes. . . .”

23



produced to the plaintifls and the exact Bates numbers of the approximately 20 pages comprising the

document, the remainder of her sketchy declaration is curiously silent on the question of whether the 350
boxcs of documents were indexed or catalogued and on the questions of how many documents were not
produced and whether they were scgrcgated or identified and thus are accessible without undue burden.
Whether these omissions were inadvertent or purposeful need not be determined. Any uncertainties go
against the defendants, not the plaintiffs, since thc former have the responsibility to demonstrate undue
burden. Without appropriate and supported explanation, the defendants cannot persuasively argue that they
will have to start from scratch and review 350 boxes containing a million indiscriminately kept documents.
In any event, having reviewed the universe of documents once, a second review would be far less
burdensome. Cf U.S. SEC. v. Elfindepan, S.A.,206F.R.D. 574, 577 (M.D.N.C. 2002) (Plaintiffs did
not meet the threshold for using Rule 33(d) where it already culled the documents for answers to some or
all of the interrogatories, meaning it was not equally or less burdensome for defendants to obtain the
information).

Ifthe defendanis failed to establish and follow a protocol for production, they are, to some degree,
the cause of whatever increased burdens may be incurred in producing the pre-1988 documents. It was
not as though the problem surfaced suddenly in May, 2005. ‘The parties had been disputing the
discoverability of the documents since before October, 2003, and by the Fall of 2003, the plaintiffs had
left no doubt that they might well demand production of pre-1988 documents. By carly February, 2005,
the plaintiffs had actually demanded the pre-1988 documents. If the defendants chose to produce
documents ina fashion that either ignored the unresolved controversy or unreasonably assumed that the

plaintiffs had agreed to make no further demands, they did so at their peril. Cf Jn re Brand Name

18



toMs. Fait, The letter had five topical headings under which were discussed specific document requests

or interrogatories. The opening paragraph under the third heading, “Discussions Regarding Noranda
Defendants’ Objections To Instructions,” adverted to instruction no. 1 of the documents request, which
defined the relevant time period for production as January 1, 1988, through the date of the request. ‘The
request also sought all documents “created or generated outside this period, but which contain information
concerning this period.” The second paragraph said:

We indicated [at the mecting on October 16"] that we will produce documents within the

time period alleged in the complaint, January 1988, through January 16,2003, which latter

date is the outside date for the class as alleged in the Consolidated Amended Complaint.
(October 29, 2003 letter, at 5).

Mr. Gustman acknowledged that plaintiffs had expressed the view that, while they might agree to
limit certain requests, that “should not prejudice [plaintiffs’ ] right to ask formore documents once the first
production has been reviewed.” He rciterated the Noranda defendants’ position that they “do not agree
with plaintiffs’ position regarding document requests for which we have agreed to undertake a search as
outlined by these negotiations.” The letter went on to state that at the October 16" mecting, the Noranda
defendants had “teiterated our position that we generally want to only make one pass through the Noranda
Defendants’ documents.” He did agree, “[hJowever, [to] entertain additional narrow, speci fic requests to
search for documents after our initial search and production.” (October 29, 2003 letter, at 7).

Ms, Fait responded on November 14, 2003, with a 10-page single spaced letter, which topically

3(...continued)
1984), Compare Geldon v. South Milwaukee School District, 414 F.3d 817 (7" Cir. 2005) (granting of
summary judgment on certain counts did not preclude evidence on those counts from being admissible on
count on which summary judgment was denied).

10


have been fruitless); Royal Maccabees Life Insurance. Co. v. Malachinski, No. 96C 6135, 2001 WL
290308, *18 (N.D.IIL Mar. 20, 2001)(Guzman, J.)(“Taking into account defendant's prior conduct we
find that plaintiff'adequately complied with Rule 37's certification requirement and Local Rule 37.2.");
Fidelity Nat. Title Insurance. Co. of New York, 2002 WI. 1433584, *3 (N.D.IIL. 2002)(Conlon,
J.)(noting failure to explain the manner in which further discussions between the parties would have
promoted Local Rule 37.2's purpose).

‘The following events demonstrate the appropriateness of the doctrine’s application in this case.
On February 8, 2005, Mary Jane Edelson Fait, counsel for the plaintiffs, wrote to Mr. Gustman requesting
certain specifically identified documents including the 1987 Prime Report (and earlicr Reports) and the
contracts between Noranda and Delta and Noranda and Essex. ((Plaintiffs’ Motion and Supporting
Memorandum to Compel, Ex. 1, Letter of Kebruary 8, 2005, at! -2, 4 1.5-6). Ms. Fait indicated that
the plaintiffs hoped to obtain the documents “in the most expedient manner possible.” (Jd. al 4).

Notwithstanding his promise to “entertain additional narrow, specific requests to search for
documents afier our initial search and production,” on February 28, 2005, Mr. Gustman responded by
lotter and refused to produce the pre-1988 documents since, in his view, they went “far beyond ourmutual
agreement in Fall 2003 about what we [sic] documents we were going to search for and produce.” His
letter went on to day that Ms, Fait had “confirmed this agreement in [her] letter dated November 14,
2003.” (Plaintiffs’ Motion and Supporting Memorandum to Compel, Ex. Hat 1). According to Mr.
Gustman, the requests for pre-1988 documents “would require [the Noranda defendants] to go back
through more than five hundred boxes of documents and tens of thousands of emails. ...” (Jd).

Anexchange between counsel at the deposition in April, 2005, of Steve Skurnac further reveals

7



The motion to compel plainly does not comply with the requirements of Local Rule 37.2.
However, the motion to strike does not question the sufficiency of the certification, only its existence.
Therefore, the issue of sufficiency is forfeited. United States v, Johnson, 415 F.3d 728, 730 (7" Cir,
2005). But even if it were not, the motion to strike would be denicd.

The Seventh Circuit has recently stressed the importance of compliance with Local Rules. See
FTC y. Bay Area Business Council, Inc.,_F.3d_, 2005 WL 2036251 (7" Cir. Aug, 25, 2005). But
Local Rules have their limitations, and like all rules, they must have sufficient flexibility and must be applied
to accomplish the ends of justice and “not bury it beneath the pressure of their own weight.” Joseph Story,
Miscellaneous Writings, 210 (1852). For that reason, courts have broad discretion to determine how and
when to enforce local rules, Waldridge v. American Hoechst Corp., 24 F.3d 918, 923 (7th Cir.1994),
and they have the inherent authority to decide when a departure from their Local Rules should be excused.

Somlyo vy. J. Lu-Rob Enterprises, 932 F.2d 1043, 1048 (2TM Cir, 1991), Cf Brengettcy v. Horton,

_F.3d_,2005 WL 2155656 (7" Cir. 2005)(“*noncompliance with a court’s local rules does not create a

jurisdictional bar for the district court or for us.”). An appropriate circumstance for excusing non-
compliance with rules is when compliance would have been an exercise in otiosity.

The doctrine of futility? is as applicable in the context of Rule 37 and Local Rule 37.2 as itis in
any other. See Armstrong v. Amstead Industries, Inc., No. 01 C 2963, 2004 WL 1497779, *3

(N.D.IL July 2, 2004)(Moran, J. (accepting plaintiffs’ contention that a mecting between the parties would

4 ~The law never requires an idle thing to be done." Brooklyn Life Insurance Co, v, Dutcher,
95 U.S. 269, 272 (1877). See also Telemark Development Group v, Mengelt, 313 F.3d 972, 978 (7"
Cir, 2002)(tender excused if it would be a vain, idle or useless act); Hence v. Hargett, 71 F.3d 1169, 1174
(5" Cir. 1996)(“no one should be required to do a useless act”), McGraw v, Prudential Insurance Co.,
337 F.3d 1253, 1263 (10" Cir. 1998).



Prescription Drugs Antitrust Litigation, 1995 WL 360526 at *1 (N.D.ILL. 1995)(Kocoras, J.)\(The

plaintiffs should not have to bear the burden of production “where, as here, ‘the costliness of the discovery

procedure involved. . . is a product of the defendant’s record-keeping scheme over which the [plaintiffs
have] no control.””)(ellipsis and brackets in original); Wagner v. Dryvit Systems, Inc.,208 F. R.D. 606,
610 (D.Neb. 2001); Kozlowski v. Sears Roebuck & Co,, 73 F.R.D. 73, 76 (D.Mass. 1976)(“To allow
a defendant whose business generates massive records to frustrate discovery by creating an inadequate
filling system | here, by not creating an adequate indexing system], and then claiming undue burden, would
defeat the purposes of the discovery rules.”).

E.

Producing 350 Boxes of Documents For the
Plaintiffs’ Inspection Does Not Comply With Rule 34(b)

The Noranda defendants contend that they should not have to re-review the documents and that
production of the 350 boxes, as they were kept in storage, complies (or will comply) with Rule 34(b)’s
requirement that documents be produced “as they are kept in the usual course of business...” '°
Consequently, they say, any re-review of the documents is solely the responsibility of the plaintiffs. ‘The

facts tell a very diflerent story. In 1998, Noranda and DuPont entered into a joint venture to market

sulfuric acid. Thereafter, Noranda no longer had a separate acid sales force, and the files that had been

"© Rule 34(b) provides, in pertinent part:

A party who produces documents for inspection shall produce them as
they are kept in the usual course of business or shall organize and label
them to correspond with the categories in the request.
they are kept in the usual course of business or shall organize and label
them to correspond with the categorics in the request.

19



Under the circumstances, the absence of perfect compliance with the Rules’ certification
requirements is nota bar to consideration of the motionas itrelates to the pre-January1, 1988 documents.
The question then is whether the same considerations make itappropriate to consider the motion to compel
as it relates 10 the interrogatories.

B.

While the partics’ submissions regarding the noncompliance with Rule 37 and Local Rule 37.2
focus on the document requests far more than on the interrogatories, the February exchange of letters and
the exchange at the Skurnac deposition show thata meet and confer session regarding the interrogatories
would have been as unavailing as one would have been with regard to the pre-January 1, 1988 documents.

I.

THE PLAINTIFFS’ ENTITLEMENT TO
DOCUMENTS PREPARED PRIOR TO JANUARY 1, 1988
A.

The Plaintiffs’ Demands For Pre-January 1, 1988
Documents And The Noranda Defendants’ Responses

Jn response to the plaintiffs’ original document request the Noranda defendants objected that the
statute of limitations under Section 4 of the Clayton Act was four years, while the request covered a fifteen-

yearperiod, The parties metto discuss Noranda’s objections and thereafter exchanged lengthy letters.

(Response, App. 1, Ex. A). On October 29, 2003, Mr. Gustman, wrote a 28-page single spaced letter

5 ‘The Noranda defendants’ objection to production is no longer based on the slatute of limitations.
While in certain instances it might be proper to deny discovery of documents on the ground that they
would only be relevant to events occurring before an applicable limitations period, where the information
is otherwise relevant, the statute of limitations is not a basis for barring discovery. See Oppenheimer
Fund, Inc. v. Sanders, 437 U.S. 340, 351-52 (1978); Lancaster v. Norfolk and Western Ry, Co., 773
F.2d 807 (7" Cir. 1985)(Posner, J.); Whittaker Corp. v. Execuair Corp. 736 F.2d 1341, 1347 (9" Cir.
(continued...)



newsletter, the Noranda defendants produced a collection of excerpts from the Fertecon faxes and
newsletters in mid-December of 2003 as part of the files of Dr. Lauren Stiroh, the class expert cconomist
retained by the defendants. The plaintiffs deposed Dr. Stiroh on February 15, 2004 and made the
collection of Fertecon faxes an exhibit at the deposition. (Response at 5, App. 1, Ex.D, at3). Yet, they
did nothing for a year to try and obtain the contracts.

Whether an earlicr request could have been made and whether it would have been flatly rejected
in the way that Mr. Gustman rejected the request in February 2005 - thereby rendering any earlier request
an exercise in futility— cannot be determined given the state of the presentrecord. Thus, before there can
be any allocation of costs, a number of things must be known including: whether there was some kind of
indexing system in place pursuant to which the Noranda defendants conducted their initial review of the 350
boxes of documents; whether location of the handful of documents presently being sought actually requires
are-review of the 350 boxes of documents; when the plaintiffs actually discovered the 1988 Prime Report;
whether they could have acted more quickly in making the requests for documents than they did; whether
the costs of production would have been different had the requests been made at an earlier time, and other
related matters, which bear upon an appropriate allocation of the costs involved in compliance with the
motion to compel. See Rule 26(c)(2), Federal Rules of Civil Procedure; Oppenheimer Fund, Ine. v.
Sanders, 437 U.S. 340, 358 (1978) ; Penk v. Oregon State Bd. of Higher Educ., 816 F.2d 458, 468
(9 Cir, 1987); 8 Wright & Miller, Federal Practice & Procedure, §2008.1(2005 Pocket part at 32).

The time for resolving these questions is not yet at hand.

25



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

EASTERN DIVISION

)
In Re SULFURIC ACID ANTITRUST) MDL Docket No. 1536
LITIGATION ) Case No, 03 C 4376

)

y Judge David Coar

y Magistrate Judge Jeffrey Cole

)

MEMORANDUM OPINION AND ORDER

INTRODUCTION AND FACTUAL BACKGROUND

This is the fourth opinion in connection with three multi-faceted discovery motions brought by the
plaintifts against various defendants.' ‘Ihe facts are these: Following the filing of the consolidated amended
class action complaint on September 5, 2003, charging a violation of §1 of the Sherman Act, plaintiffs
served sixty-six document requests and ten interrogatories on Noranda, Inc., Falconbridge, Ltd. and
Norfalco, LIC (“the Noranda defendants”). The requests sought specilied classes of documents created
after January 1, 1988, the date the complaint charged as the commencement of the conspiracy, and earlier
documents that related to the events within the period of the charged conspiracy.

The Noranda defendants resisted production on the theory that the statute of limitations under
Section 4 of the Clayton Act was four years, while the request covered fifteen-year period, There ensued
negotiations in October, 2003, culminating in anexchange of letters purporting to document the discussions.

(Response of the Noranda Defendants in Opposition, App. 1, Ex. A). An arrangement of sorts grew

' See generally, In re Sulfuric Acid Antitrust Litigation 2005 WL 2143945 (N.D.II. September
6, 2008); 2005 WL 2059327 (N.D.IIl. August 26, 2005); See also In re Sulfuric Acid Antitrust
Litigation, 2005 WL 2155219 (N.D.IIL September 7, 2005). A fourth opinion, 2005 WL 1994105
(N.D.IIL August 19, 2005), dealt with a motion by certain of the defendants to compel compliance with
discovery...

A



Peirson, 275 U.S. 120, 128 (1927) (Holmes, J.). In any cvent, that recitation was found to be

“incomplete” by Ms. Fait. While acknowledging that the initial run-through was to be only for the post-

January 1, 1988 period, she reiterated her position that the plaintiffs could insist on production of
documents from an earlier period depending on what turned up-a concept to which Mr, Gustman was
hostile and which did not fit with the Noranda defendants’ “desire” not to have to go through the task a
second time. Ms. Fait’s response, while polite, was emphatic that she did not much care, and she reserved
the right to demand the very thing Mr. Gustman “desirc[d]” not to do.

The “reservation of rights” provision in the plaintiffs’ October 2003 letter is said not to count
because it was “buried” in a paragraph dealing with the production ofdocuments from smelters and thus,
“arguably deals only with that topic.” (Response, at 3 n. 4). The argument is apparently not so much that
the Noranda defendants’ lawyer missed the provision in reading the letter, but either that Ms. Fait intended
that the reservation only apply to smelter documents or he was somehow gulled by its placement into

thinking that it did — an apparent application to letters of ejusdem generis, the principle of statutory

construction used to resolve ambiguity and uncertainty, Under the principle, where general words follow
an enumeration of specific terms, the gencral words are read to apply only to other items like those
specifically enumerated. While the argument does not employ the term, ifit did not have that principle in
mind, it has no meaning.

Even in its proper context, the principle does not apply in the abscnce of an cnumeration orwhen
the whole context dictates a different conclusion than that the general term should be understood as a
reference to subjects akin to those specifically enumerated. See Norfolk and Western Ry. Co. v.

American Train Dispatchers Association, 499 U.8. 117, 128 (1991), Garcia v. United States, 469

12



mirrored Mr. Gustman’s lelter. ‘Ihe first sentence under the heading, “Discussions Regarding Noranda
Defendants’ Responses To The Document Request,” said that the “description of our discussion [in the
October 23 letter] is incomplete.” (November 14,2003 letter, at 3). While acknowledging the Noranda
defendants’ “desire” to make only one pass-through of Noranda’s documents, Ms, Fait explicitly
“yeserve[d] [plaintiffs’ | right to request additional documents once we have reviewed Noranda’s initial
production if further investigation becomes necessary.” (/d., at 3).

Thereafier, 350 boxes of documents were shipped to Noranda defendants’ Chicago counsel from
Noranda’s storage facility in Toronto, where the documents had been stored for seven years, following the

1998 formation ofa joint venture between Noranda and DuPont to market sulfuric acid. In addition,

hundreds of thousands of pages of emails that scemed relevant to sulfuric acid sales in the United States

inthe period January 1, 1988 - January 16, 2003 were reviewed. (Response, App. I, Ex. B, Declaration

of Wanda Vasquez, J 5).°
B.
There Was No Agreement Between the Plaintiffs and the Noranda Defendants That
Production Would Bc Limited To Post-January 1, 1988 Documents
Mr. Gustman’s recitation in his October, 2003 letter of the Noranda defendants’ position regarding
production of pre-1988 documents did not create an agreement that production was excused, for"|a] man

cannot make evidence for himself by writing a letter containing the statements that he wishes to prove” and

thereafter, “sending it to the party against whom he wishes to prove the facts.” 4.3. Leach & Co. v.

® Lhe motion to compel originally also targeted monthly and quarterly billing and reconciliation
statements from 1988 through 2003. As part of a stipulation between the parties, however, the Noranda
defendants have agreed to assist the plaintiffs in locating these documents. Accordingly, the plaintiffs
concede that that portion of their motion to compel is moot. (Reply at 7 n.2).

11



the polarity and intractability of the parties’ positions on the dispute over the production of the pre-1988

documents. When counsel forthe plaintiff requested a copy of the 1984 contract between Noranda and
Delta — one of the documents sought by the present motion-this exchange occurred:

Ms. Fait: .. . didn't we ask you for that contract in a letter? It was a letter that —

Mr. Gustman: | don't know whether you asked us for the contract.

Ms. Fait: Okay. I believe we have. I'm almost certain that it was -- one of the items that
we asked you for was —

Mr. Gustman: We have given you what we have.

Ms. Fait: -- a mid '80s contract between Noranda and Delta. Now you are making
objections to my questions based on the fact that this is referring to another contract, a
contract which ] have asked for and haven't received yet.

Mr. Gustman: | disagrce with your characterizations, I disagree with everything you said,
and I don't know what the nature of the question is. So if you want to puta question, go
ahead and put a question out.

Ms. Fait: Okay. Well, on the record, we need to have this previous contract between
Noranda and Delta and —

Mr. Gustman: And on the record, we agreed to produce documents beginning January 1,
1988, and this case relates to the time period January 1988, and I think you are wasting
our time going back to contracts from '84, And, frankly, I wish you would just move on
because you're running out of time.

* * *

Ms. Fait: And that's my point, none of us will know how the revenue-sharing provisions
were different until we see a copy of that contract.

Mr. Gustmnan : Let me just state for the record, you didn't ask fora copy. We have written
agreements with you that say we only had to look for documents beginning January 1,

1988, and that's what we provided to you.

(Plaintiffs' Motion and Supporting Memorandum, Ex. F, Skurnac Deposition. at 207-08, 209).

8



‘The Noranda defendants have made no meaningful attempt to satisfy this evidentiary burden. Ms.
Vasquez’s declaration proves nothing other than that there was no impropriety in the handling of the
Noranda documents after they were received at Freeborn & Peters in Chicago. Ms. Vasquez is
testimonially incompetent under Rule 602, Federal Rules of Evidence, to say: a) what happened to those
documents between the date they were removed from Noranda’s files and sent to the storage facility; and
b) what happened to the documents from the date they were received at the storage facility to the date they
were shipped 10 Chicago to Freeborn & Peters. See generally, 3 Weinstein’ s Federal Evidence §602.02
et seq. (2 cd. 2005).

The Noranda defendants are notat liberty under federal discovery rules to dump massive amounts
of documents, which the defendants concede have “no logical order to them,” (Response at 9), on their
adversaries and demand that they try to find what they are looking for. See Rothman v. Emory
University, 123 F.3d 446, 455 (7" Cir. 1997)(production of three large storage boxes papers and
numerous other unrelated, non-responsive materials in response to court-ordered production was
sanctionable); Transportes Aereos De Angolay, Ronair, Inc., 104¥.R.D, 482,499 (D._Del. 1985)(“The
court will not permit defendants to shift the burden of discovery by telling ‘plaintiff that, ifhe wishes, he may
hunt through all the documents and find the information for himself.””); Wagner v. Dryvit Systems, Inc.,
208 F.R.D. 606, 610(D.Neb. 2001). Ifthe plaintils are correct, the documents telating to sulfuric acid
were not only taken from the file drawers and offices at Noranda and placed into boxes inno particular

order, they “were mixed in the same box[cs] with files from unrelated aspects of Noranda’s business,

22


than would plaintiffs. U.S. S.E.C. v. Elfindepan, S.A., 206 F.R.D. 574, 577 (M.D.N.C, 2002) (Plaintiffs

did not meet the threshold for using Rule 33(d) where it already culled the documents for answers to some
orall of the interrogatories, meaning it was not equally or less burdensome (or defendants to obtain the
information); Petroleum Insurance. Agency, Inc. v. Hartford Acc. and Indemnity. Co., 111 F.R.D. 318,
322 (D.Mass. 1984) (court did not allow defendants to usc Rule 33(c) — predecessor to Rule 33(d) —
where defendants had done considerable work to gather the information requested by the interrogatories
because it followed that il was not equally burdensome for the parties to search the records to come up
with answers).

Even ifthe Noranda defendants had satisfied the threshold showing required to employ the Rule
33(d) option, the reference to records must be sufficiently detailed to allow the interrogating party to locate
and identify them. Instead of specifying “by category and location, the records from which the answers
to the interrogatories can be derived,” Rule 33(c) advisory committee’s note (1980 amendment), cited in
Inre G-I Holdings Inc., 218 F.R.D. 428, 438 (D.N.J. 2003), the Noranda defendants have produced
perhaps a million pages of documents and merely referred plaintiffs, generally, to them for the answers to
their interrogatory. This is “an abuse of the option.” See In re Sulfuric Antitrust Litigation, 2005 WL
2059327 (N.D.IIL. August 26, 2005)(citing Bonds v. District of Columbia, 93 ¥.3d 801, 811 (D.C.Cir.
1996)). The Noranda defendants’ reliance on two cases that antedated the 1980 amendment to Rule 33
by 31 and 21 years respectively is, to say the least, odd. See Aktiebologet Vargos v, Clark, 8F.R.D.
635 (D.D.C. 1949); Riss & Co. y. Association of American Railroads, 23 F.R.D. 211 (D.D.C. 1959).
(Response at 9), Those cases were decided when the law did not require a parly opting to produce

business records to specify, by category and location, the records from which answers (0 the interrogatories

28



On July 1, 2005, without compliance with the certification requirements of at least I.ocal Rule 37 2,
plaintiffs moved to compel the Noranda defendants to produce several pre-1988 documents and to answer
certain interrogatories.

According to the Noranda defendants, in October, 2003, they made an agreement with the
plaintiffs that pre-January 1, 1988 documents would not have to be produced, and that the plaintiffs have
welchedon the deal. And, the Noranda defendants contend, even if there were no agrecment, granting
the plaintifts’ belated motion would require re-review of the 350 boxes ofdocuments that, they say,isa
monumental and costly task that could have casily been avoided had the plaintifis acted with any reasonable
dispatch rather than waiting until the day discovery closcd to take action. Finally, the defendants claim, not
only would the effort involved in the review be unduly burdensome, it is not worth the candle.

‘The plaintiffs deny the existence of any agreement to limit their discovery requests to the class
period, and they submit that the Noranda defendants have failed to comply with Rule 34(b), Federal Rules
of Civil Procedure, which requires that “‘a party who produces documents for inspection shall produce them
as they arc kept in the usual course of business or shall organize and label them to correspond with the
categories in the request.” The plaintiff's contend that this noncompliance mandates that the Noranda
defendants and not the plaintiffs bear the burden of review of the documents. Finally, the motion contends
that the Noranda defendants’ responses to the third sct of interrogatories are inadequate in that they refer
plaintiffs generally to the entire document production in the case, in violation of Rule 33(d), Federal Rules

of Civil Procedure.



D.

The Defendants Have Failed To Sustain Their Burden of
Showing That Production Of The Few Pre-January 1, 1988
Documents Sought By The Plaintiffs Would Be Unduly Burdensome

‘The de(endants claim that in order to produce the handful of pre- 1988 documents, they will have
to re-review the 350 boxes of documents that they reviewed for the initial production, a task they say
involved “Herculean effort” and one they insist they should not have to repeal," While essentially
characterizing the Noranda defendants’ argument as meritless, itis clear that the plaintiffs do not want to
conduct the review either. Of course, the effort required to produce the documents the plaintiffs seek is
not burden-free. But, that is not the test, or else there could be no discovery in any case.

The question is whether the burden isan undue one. As the objectors, the Noranda defendants
must demonstrate that it is. See Trading Technologies Intern., Inc. v. eSpeed, Inc., No. 04 C 5312,
2005 WL 1300778, *1 (N.D.ILL. April 28, 2005)(Moran, J.); Semien v. Life Insurance. Co. of North
America, No. 03 C 4795, 2004 WL 1151608, *1 (N.D.IIl. April 21, 2004)(Kocoras, J.). The
defendants have {ailed to provide sufficiently convincing evidence to support their claim, and whatever that
burdenis, it pales by comparison to that in other cases. See, ¢.g., United States v. 1BM Corp. 83F.R.D.
97(S.D.N.Y.1979) (ordering civil antitrust defendant to comply with a subpoena that defendant estimated
required production of over five billion document pages); Jn re Brand Name Prescription Drugs
Antitrust Litigation, 123 F.3d599, 614 (7* Cir, 1997) (discovery involved more than 1,000 depositions

and over fifty million pages of documents); Jn re Linerboard Antitrust Litigation, 296 F Supp .2d 568,

* Calling the effort involved “Herculean” is not conclusive. Discovered parties often use that
adjective in vain. Kozlowski vy, Sears Roebuck & Co., 73 F.R.D. 73, 76 (D.Mass. 1976).

15



follow protocols and procedures that involved some method of document identification. But there are more
than inferences from excellence and experience that suggest that the burden is not so severe as is claimed.
That there was some sort of cataloging of the 350 boxes is evidenced by the Declaration of Wanda
Vasquez, the paralegal involved in the production of the documents after their receipt in Chicago. Inher
declaration she said that her “records indicate that [the 1988 Prime Report] was produccd to the plaintifis
in February, 2004,” and bears the “Bates number of NFD 100,696 -715.” (Vasquez Declaration, 15).
Similarly, the defendants’ response was able to pinpoint the Bates numbers that were produced on Junc
7*, and it would seem either that some method of indexing was already in place by October, 2003 or was
anticipated, for how else could Mr, Gustman say in his October29, 2003 letter that the defense would
“entertain” “additional narrow, specific requests to scarch for documents afler our initial scarch and
production.” (/d. at 7). Without some method of document inventorying and indexing, ilis difficult to see
how that promise could ever be fulfilled, short of reviewing all 350 boxes. Given Mr. Gustman’s aversion

to that task, it seems likely that he had something else in mind.

Given the experience of the Noranda defendants’ lawyers, it seems unlikely that the documents that

were tumed over would have been returned to the 350 boxes and indiscriminaiely commingled with those
that were zot—and the latter would have included the pro-January 1, 1988 documents. The defendants
have offered no proof that the documents that were not turned over were not separately maintained or were
otherwise not identifiable in some fashion. The unadorned conclusion that the few pre-1988 documents
being sought by the plaintiffs “would now require another complete search of all 350 boxes at an enormous
burden and expense” is not decisive. (Response at 4)

While Ms. Vasquez was able to pinpoint the exact date on which the 1988 Prime Report was

17



100,696 -715—which, according to plaintiffs is “one of the most important pieces of evidence produced
by the Noranda Defendants in this casc.” (Plaintiffs' Motion and Supporting Memorandum at 2; Ex.
C). The Report suggested that “the Noranda Defendants had hatched their scheme to convince voluntary
sulfuric acid producers to stop producing sulfuric acid at least at as early as 1985,” (Plaintiffs’ Motion
and Supporting Memorandum, at 2). t purportedly set forth Noranda’s agreements and attempts to
reach agreements with sulfuric acid producers to close down their plants and purchase sulfuric acid from
Noranda.

Within “months” ofits production by the defendants in February 2004, the 1988 Report was found
by the plaintiffs during their “intensive document review.” (Replyat 5). Itis uncertain whether by the
Spring or early Summer of 2004, the plaintiffs knew about the 1988 Report, which referenced and updated
an earlicr Prime Report dated August 18, 1987. (/d. at 1, 7-12)2 What is certain is that by February
2005, the plaintiffs wore aware of the oxistence of the 1987 Report, for they specilically asked for itina
Ictter to the defendants’ counsel. That request was rebuffed in late February, 2005, In carly May 2005,
the plaintiffs scrved a second document request specifically requesting pre-January 1, 1988 Prime Reports
and two mid-1980s contracts between Noranda and Delta, and Noranda and Essex.

On June 6, 2005, the Noranda defendants served their responses and objections to that documents
request and to the second set of interrogatories, which was also served on May 6". Plaintiffs served a third

set of interrogatories on the Noranda defendants on May 31, 2005; responses came on June 30, 2005.

3 The reference to the 1987 Report, according to the plaintiffs, “was contained in a single
sentence of, . . [the] 1988 Prime Report,” (Response at 5), The plaintiffs contend that the 1987 Prime
Report is critical to the case and will shed light upon Noranda’s purpose in seeking agreements with the

sulfuric acid producers and upon Noranda’s plan as to how it would carry out these discussions. The
defendants have a very different view of the Report’s value.

3



iil.

THE NORANDA DEFENDANTS’ RESPONSE TO
THE PLAINTIFFS’ INTERROGATORIES 18 NOT COMPLIANT WITH RULE 33(d)

On May 31, 2005, the plaintiffs served a third sct of interrogatories on Noranda and Falconbridge.
(Plaintiffs’ Motion and Supporting Memorandum to Compel, Ex. 1). On June 30, 2005, the Noranda
defendants objected to the interrogatories on the grounds that they were improperly served, exceeded the
numerical limit allowed by Rule 33(a), sought privileged information, and were vague, ambiguous, and
unduly burdensome, (/d., Ex. J, at 3-6, 11-13), but went on to respond to interrogatories 1,2, and 7 by:

refer[ring] Plaintiffs to their document production in this case, from which the information

responsive to this interrogatory can be derived or ascertained, The burden of searching

the documents for such information is substantially the same for Plaintiffs as it is for

Noranda and Falconbridge.

(id., Ex. J, at 4-5, 6, 13).

Plaintifts complain that this response is inadequate because itrefers plaintiffs generally to the entire
document production, (/d., at 7-8).'" In their response brief, the Noranda defendants object to
interrogatories 1,2, and 7 as unreasonably cumulative and duplicative of not only information contained
in documents already produced, but information garnered through depositions as well. (Response, at 10-
13). Rule 33(b)(4) requires that “[a]]] grounds for an objection (o an interrogatory shall be stated with
specificity.” If they are not, the objection is deemed waived. Rule 33(b)(4); Hobley v. Chicago Police
Commander Burge, No. 03 C 3678, 2003 WL 22682362, *5 (N.D.IIL. Nov. 12, 2003); Jones v. Syntex

Laboratories, Inc., No. 99 C 3113, 2001 WL 1338987, *1 (N.D.IIL. Oct. 30, 2001), The advisory

\4 These were the only interrogatories that drew a reference to documents produced from the
Noranda defendants. (Motion and Memorandum to Compel, Ex. J at 4-5, 6, 13; Response at 9 n.15).

26



out ofall this: only post-January 1, 1988 documents would be produced (for now), and the plaintiffs
reserved the right o make additional requests for earlier documents depending in what the initial production
revealed. Ina letter in late October, 2003, to plaintiffs’ counsel, David Gustman, lead counsel for the
Noranda defendants, expressed his understanding of what had occurred during these discussions. While
it differed from the plaintiffs’ perception of those meetings, at least somewhat, Mr. Gustman did promise,
“[h]owever, [to] entertain additional narrow, specific requests to search for documents after our initial
scarch and production.” (October 29, 2003 letter, at 7). As will be seen, this was “a promise to the ear
to be broken to the hope, a teasing illusion like a munificent bequest in a pauper's will." Edwards v.
California, 314 U.S, 160, 186 (1941) (Jackson, J., concurring).

Thereafter, the Noranda defense team reviewed 350 boxes that had been kept since 1998 ina
Noranda storage facility in Toronto, Canada. Ultimately, the Noranda defendants produced between
840,000 to 1,000,000 pages of documents—depending on whose estimate is to be credited. This was a
“rolling,” somewhat sporadic production, in which the documents were released in stages as they were
reviewed. (See Response of the Noranda Defendants in Opposition, at 4-5)(“Response”); Plaintiffs"
Reply Memorandum, at 5 n.1. (“Reply”).

The first 250,000 pages were produced as carly as February of 2004 (Response at 4 and Ex. B,
4 15), although Bates numbers 591,997 through 593,239 were not produced until June 7, 2005.
(Response al 4 n.7; Reply at 5n.1).2 The dates and numbers are significant: by February, 2004, the

plaintiffs had been provided with a 1988 marketing report --the 1988 “Prime Report” — Bates numbers

2 “The first 132,000 pages of documents came from the Noranda defendants and were Bates
stamped ND. The next 100,000 plus documents were Bates stamped NID.

2



can be derived.

Accordingly, plaintiffs’ motion to compel is granted as {o interrogatories 1,2, and 7. The Noranda
Defendants must cither provide a specific response to each subsection of the interrogatory or, ifit chooses
to invoke Rule 33(d), must adequately specify the responsive documents.

CONCLUSION

For the foregoing reasons, the plaintiffs’ motion to compel the Noranda defendants to comply with
certain outstanding discovery requests [#168] is GRANTED in part and DENIED in part. The motion of
the Noranda defendants to strike plaintiffs’ motion to compel [#171] is DENIED. Following compliance
with the outstanding discovery requests, the Noranda defendants may apply, if they choose, for a
determination of whether costs should be imposed on the plaintiffs, and il’so, in what amounts. Any

application must be supported by evidence dresses the concerns expfessed earlier in this opinion.

ENTERED:

STATES MAGISTRATE JUDGE

DATE: 9-27-05



U.S. 70, 74 (1984). Here, we are not concemed with the construction ofa statute, but with words in an
exchange of letters; not with a specific enumeration of items ina list, but with two topics contained in two
sentences responsive to the identical topics mentioned in the defendants’ October 2003 letter; and finally,
not with inherent ambiguity, but with undeniable clarity, Whatever else might be said about the letters, it
cannot be said that there was an agreement between the parties that the Noranda defendants’ production
obligations would be fully satisfied by production of post-January 1, 1988 documents. The letters reveal
not a meeting of the minds, Baker O'Neal Holdings v. Massey, 403 F.3d 485 (7" Cir. 2005), but an
expression of irreconcilable positions and a clash of wills.’

Cc
The Relevance and Claimed Importance of the Pre-January 1, 1988 Documents

Inaddition to the pre-1988 Prime Reports, which plaintiffs contend will illumine Noranda’s purpose
in seeking agreements with the sul {uric acid producers and will provide an interpretive gloss to the factual
statements in the 1988 Prime Report, plaintifl$ also seck two mid-1980s contracts between Noranda and
Delta, and Noranda and Essex, which were in cffect until al least 1996, Three deposition witnesses have
testificd about the Relta contract. That testimony is not exactly as plaintiffs characterize it, but generally,
two of the witnesses to whom plaintiffs refer testified that the contracts in effect at the time of the
negotiation of the October 1989 contained a profit-sharing or revenuc-sharing provision, (/d. atEx.D,
Dullea Deposition. at 62:16-63:24; Ex. F, Skumac Deposition at 204:10-215:11), They also testified that

they had difficulty recalling the documents without being able to review the 1984 contract to refresh their

7 Only literary perversity or jaundiced partisanship could suggest that there were “thoroughly
documented agreements on the scope and breadth of discovery” and that the “agreement [was] that the
period would be essentially the same originally sought in instruction No. 1... .” (Response at 1-2).

13


577 (E.D.Pa.2003) (discovery required production of millions of pages of. documents); J re Fine Paper
Antitrust Litigation, 685 F.2d 810, 818 (3" Cir.1982) (court permitted taking of 270 depositions and
production of nearly iwo million documents in complex, nationwide antitrust claim).

Inorder to demonstrate undue burden, the plainti {fs must provide affirmative proofin the form of
affidavits or record evidence, Wagner v. Dryvit Systems, Inc,, 208 F.R.D. 606, 610 (D.Neb. 2001);
Jackson v. Montgomery Ward & Co, 173 F.R.D. $24, 529 (D.Nev. 1997); Zapata v. IBP, Inc., 1994
WL 649322 at *3 (D.Kan. 1994),” Nothing of the sort has been offered by the Noranda defendants.
There is only the ipse dixit of counsel, and that is notsufficient. Whether or not itis a fair inference that
the defendants already have in their possession some of the specific documents requested —as a result of
prior requests, depositions, and the Department of Justice investigation — itis certainly reasonable to assume
that the prior review of the 350 boxes was not done in a haphazard and disorganized way. After all, the
Noranda defendants’ altorncys are no strangers to antitrust litigation and the kind of complicated and
massive discovery involved in this case. Their two lead. counsel, Mr, Gustman and Mr. Cross, have almost
60 years of experience between them, They have authored numerous publications involving antitrust, have
lectured on antitrust law, and each has been selected as a Leading Lawyer in the ficld of antitrust by the
American Research Corporation or the Leading Lawyers Network. Their firm has more than 120 lawyers.
See www.freebornpeters.com

‘Thus, itis unlikely that the team of lawyers who were tasked to review the initial production did not

4 See alsa Athridge v. Aema Casualty and Surety Co., 184 F.R.D. 181, 190- 91 (D.D.C,1998),
American Rock Salt Co., LLC v. Norfolk Southern Corp., 228 F.R.D, 426, 432 (W.D.N.Y. 2005);
Lineen v. Metcalf & Eddy, Inc., No. 96 Civ.2718, 1997 WL 73763, *7 (S.D.N.Y. Feb. 21, 1997);
Kozlowski v. Sears Roebuck & Co., 73 F.R.D. 73, 76 (D.Mass, 1976).

16