IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

ENERGY INTELLIGENCE GROUP, INC,

and ENERGY INTELLIGENCE GROUP 

(UK) LIMITED,

 Plaintiffs and Counterclaim-Defendants,

v.

CONSTELLATION ENERGY 

GENERATION, LLC,

 Defendant and Counterclaim-Plaintiff.

Civil Action No. 1:20–cv–03983

Civil Action No. 1:21–cv–05689

Honorable Joan B. Gottschall

Honorable Heather K. McShain

CONSTELLATION’S OPPOSITION TO EIG’S MOTION TO COMPEL

Defendant and Counterclaim-Plaintiff Constellation Energy Generation, LLC 

(“Constellation”) respectfully asks the Court to deny Plaintiffs’ Motion to Compel Defendant’s 

Responses to Certain Discovery (Dkt. 110) brought by Energy Intelligence Group, Inc. and Energy 

Intelligence Group (UK) Limited (“EIG”).

I. BACKGROUND 

EIG alleges that Constellation infringed the copyright in all issues of EIG’s weekly 

newsletter Nuclear Intelligence Weekly (“NIW”) from November 2011 through November 2020.

(Dkt. 1 ¶¶ 1, 8, 20, 52.) This accusation makes no sense on its face, as it is undisputed that there 

was a subscription agreement between the parties authorizing Constellation’s use of NIW for each 

of the nine yearlong terms covered by the Complaint. (See id. ¶¶ 29–32.) Haksoo Kim—who 

retired from Constellation many years ago—signed agreements before 2014, and Jeanne 

Tortorelli—a current employee—signed them from 2014 forward. (See Klapp Decl. ¶ 5.)1

1 “Bart Decl.” refers to the Declaration of Daniel Bart, “Klapp Decl.” refers to the Declaration of 

Louis Klapp, and “Mueller Decl.” refers to the Declaration of Gregory Mueller, all filed with this 

Case: 1:20-cv-03983 Document #: 116 Filed: 05/23/22 Page 1 of 16 PageID #:1926
2

EIG asserts that Constellation engaged in conduct not permitted by the subscription 

agreements, and that such activity constituted copyright infringement. (Dkt. 1 ¶ 52.) In particular, 

EIG now points to so-called authorized users of NIW forwarding copies of the publication to 

unauthorized users and/or saving the copies of NIW on a network folder where some of their 

purportedly unauthorized colleagues could potentially access them. (Mot. at 1.) EIG’s claims are 

faulty because the subscription agreements specifically permitted occasional and non-systematic 

forwarding of NIW and downloading for individual referential use, which is the type of conduct 

accused in this case. (Dkt. 96 at p.22 ¶¶ 6–7, pp.29–30 ¶¶ 27–29.)

Among other things, Constellation also alleges a defense of statute of limitations. (Dkt. 96 

at p.21 ¶¶ 1–2.) In its Complaint, EIG admitted that, through its email delivery vendor (the vendor 

who emailed Constellation its pdf copies of NIW on behalf of EIG), EIG had tracking capabilities 

to determine the number of unique users who opened the emails that delivered NIW. (Dkt. 1 ¶¶ 

35–36.) Constellation asserts that, if its conduct was actually infringing, EIG reasonably could 

have uncovered it years before it filed suit by using this external tracking technology. (Dkt. 96 at 

p.21 ¶¶ 1–2.) Indeed, the tracking data produced by EIG in discovery shows that EIG gained access 

to this technology no later than 2015, yet Constellation did not sue until 2020. (See Mueller Decl., 

Ex. 1.) Constellation’s affirmative defenses are not premised on the idea that EIG should have 

accessed Constellation’s internal network or email servers to monitor Constellation’s activity (see

Dkt. 96 at p.21 ¶¶ 1–2.).

Constellation asserts six counterclaims that relate to EIG’s desire for its customers to 

engage in conduct that EIG can later accuse of copyright infringement. (See Dkt. 96 at pp.39–46.)

brief. “Ex.” refers to the exhibits filed with the Mueller declaration. “Mot.” refers to EIG’s Motion 

to Compel (Dkt. 110).

Case: 1:20-cv-03983 Document #: 116 Filed: 05/23/22 Page 2 of 16 PageID #:1927
3

This desire explains why EIG purposefully avoided investigating the allegedly infringing conduct 

before it built up a decade’s worth of supposed damages, never canceled any of its subscription 

agreements with Constellation after it learned of the supposed infringement, entered into new 

yearly terms for NIW after it learned of the supposed infringement, and never bothered to let 

Constellation know that EIG thought Constellation’s conduct was outside the permissible scope 

of its license. (See, e.g., id. pp.33–34 ¶¶ 44–49.) 

II. ARGUMENT

A. Constellation is not withholding any information responsive to EIG’s 

Interrogatory No. 3.

Constellation is not withholding any information responsive to EIG’s Interrogatory No. 3, 

so there is nothing to compel. Constellation has investigated the interrogatory—it spoke to 

employees with relevant knowledge and reviewed documents—and it provided the responsive 

information that it uncovered.

The interrogatory asks to identify the person who “read . . . the terms and conditions of the 

subscription agreements,” and Constellation’s answer identifies Jeanne Tortorelli. (Dkt. 101-1 at 

4–5.) EIG complains that Constellation’s answer says that Ms. Tortorelli “viewed” the agreement 

rather than “read” the agreement. (Mot. at 4.) If Constellation knew that she reviewed each of the 

terms in the agreement, or if it knew that she didn’t review each of the terms, Constellation would 

so state. But, it has been almost eight years since Ms. Tortorelli took over responsibility for this 

subscription. (See Klapp Decl. ¶ 5.) Memories fade, and it should not be surprising that the details 

about her review and signature could be forgotten. Nonetheless, Constellation’s investigation 

found that Ms. Tortorelli at least looked over the agreement’s terms before signing the document, 

and it conveyed that information in its answer to the interrogatory.

Case: 1:20-cv-03983 Document #: 116 Filed: 05/23/22 Page 3 of 16 PageID #:1928
4

Additionally, even though the interrogatory did not ask for the information, Constellation 

supplemented its answer to identify other individuals who had some administrative responsibilities 

related to the subscription. (Dkt. 101-1 at 5.) This was a good faith attempt to provide information 

that EIG could use in considering depositions. EIG is free to depose Ms. Tortorelli or other relevant 

individuals to explore these topics directly.2

Constellation satisfied its obligations for EIG’s Interrogatory No. 3, and it has nothing else 

to provide. Constellation recognizes its duty to supplement, and it will promptly provide additional 

responsive information should any become known.

B. The Court should sustain Constellation’s objections to EIG’s RFP No. 49, as 

third-party publications are irrelevant to this litigation and the discovery 

would be overly burdensome.

Perhaps recognizing the weakness in its own case, EIG now wants to investigate and 

litigate whether Constellation may have infringed third-party copyrights in third-party 

publications. This is speculative and irrelevant, inconsistent with Judge Gottschall’s prior order in 

this case, and unduly burdensome, so the Court should sustain Constellation’s objections to RFP 

No. 49.

1. EIG has not shown that the documents sought may contain relevant 

information.

EIG argues that (1) the requested documents could potentially show that Constellation 

infringed one or more third-party copyrights and (2) if so, that fact would be relevant to disproving 

Constellation’s counterclaims. (Mot. at 8.) Prong two is wrong because there is no relevance.

Regardless, the basis for prong one is pure speculation: EIG does not point to anything even hinting

2 EIG makes several arguments about the relevance of this information to the defenses and 

counterclaims in this Action. (Mot. at 5–6.) Constellation disputes EIG’s position, but the dispute 

is not pertinent to this motion given that Constellation is not withholding information (based on 

relevance or otherwise).

Case: 1:20-cv-03983 Document #: 116 Filed: 05/23/22 Page 4 of 16 PageID #:1929
5

that infringement of third-party copyrights occurred. This alone warrants denying EIG’s motion to 

compel.

A party seeking discovery must offer more than mere speculation that requested discovery 

could reveal relevant evidence. Sirazi v. Panda Express, Inc., No. 08 C 2345, 2009 WL 4232693, 

at *3–*4 (N.D. Ill. Nov. 24, 2009). In Sirazi, the defendant sought discovery on conversations 

between the plaintiff and his lawyers in other cases, arguing that the plaintiff could have had 

conversations with the lawyers on topics relevant to the Sirazi case given similar subject matter. 

Id. at 3. The court assumed without deciding that the conversations were nonprivileged (waiver 

was asserted) and instead rejected the discovery requests for lack of relevance. Id. In particular, 

the court agreed that if the hypothetical conversations took place, “they are obviously relevant.” 

Id. But, the court held, “there is no basis on the present record for concluding he did or even that 

he might have [had those conversations].” Id. The court put it this way: “without some reason to 

conclude that the pond might be stocked, one cannot demand to ‘fish.’” Id.

EIG has not shown that the pond might be stocked. EIG has offered no reason to believe—

and there is no reason to believe—that Constellation violated any third-party subscription 

agreements or third-party copyrights. (Mot. at 7.) For example, as suggested by EIG’s motion, 

Constellation has already produced some documents related to third-party publications (responsive 

to RFPs not at issue here), including third-party terms and conditions. (See Mot. at 7; Klapp Decl. 

¶ 4.) EIG does not point to anything suggesting that infringement of third-party copyrights 

occurred. (See Mot. at 7.) EIG simply says that Constellation had other subscriptions and, 

therefore, Constellation could have possibly infringed these copyrights. (Id.) This is outright 

speculation that does not warrant the requested fishing expedition.

Case: 1:20-cv-03983 Document #: 116 Filed: 05/23/22 Page 5 of 16 PageID #:1930
6

Indeed, Judge Gottschall has already ruled against EIG on a similar issue. EIG sought to 

amend its Complaint to add allegations that Constellation infringed a different EIG publication 

called Uranium Intelligence Weekly (“UIW,” a predecessor to NIW) from 2008–2011. (Dkt. 73 at 

1, 2.) In support of those newly proposed copyright infringement claims, EIG alleged that Exelon’s 

Haksoo Kim—an authorized recipient of UIW—impermissibly forwarded copies of UIW in the 

2008–2011 timeframe, but the allegation was based only “on information and belief.” (Id. at 2.) 

The sole well-pleaded facts about Kim were that he received forwarded copies of NIW from Ken 

Petersen—an authorized user of NIW—in 2014 and 2015. (Id. at 3.) EIG argued that “Kim must 

have forwarded copies of UIW to other [Constellation] employees three years earlier because he 

‘participated in infringing activities in 2014 and 2015.’” (Id. (quoting EIG’s brief).) The Court 

rejected EIG’s argument and denied its motion for leave to amend its Complaint to add these UIWbased allegations. (Id. at 4.) The Court held that EIG’s UIW-allegations were mere “speculation,” 

as Kim’s receipt of NIW in 2014 and 2015 showed nothing about what if anything he did with 

respect to UIW three years earlier. (See id.)

EIG’s motion to compel should be denied for similar reason. Just as its motion to amend 

sought to raise hypothetical infringement of UIW based solely on accusations of infringement of 

NIW, EIG’s motion to compel seeks to raise hypothetical infringement of at least five third-party 

publications based solely on accusations of infringement of NIW.Just as the UIW-based allegations 

were based on mere speculation, the third-party-publication allegations are likewise based 

exclusively on speculation. Thus, even if Constellation’s purported infringement of third-party 

copyrights could be deemed relevant to this case (it is not), there is no reason to believe that the 

documents will show such infringement, so the documents are outside the permissible scope of 

discovery. Fed. R. Civ. P. 26(b)(1); Eternal Mart, Inc. v. Nature’s Sources, LLC, No. 1:19-CVCase: 1:20-cv-03983 Document #: 116 Filed: 05/23/22 Page 6 of 16 PageID #:1931
7

02436, 2019 WL 6052366, at *3 (N.D. Ill. Nov. 15, 2019) (denying requested discovery because 

“[movant] has not given the Court any reason to believe that the pond might be stocked with fish”).

2. The discovery would be disproportionate and unduly burdensome.

Assuming for the sake of argument that infringement of third-party publications would be 

relevant to this case (it would not be) and that EIG has a non-speculative basis to assume the 

requested discovery would show such infringement (it has not), the Court should still deny the 

discovery request because “the burden or expense of the proposed discovery outweighs its likely 

benefit,” Fed. R. Civ. P. 26(b)(1). EIG’s infringement case principally concerns, for each of 450 

editions of NIW (nine years of a weekly publication), whether and the extent to which such edition 

was forwarded and/or saved, and the permissible conduct under the relevant yearly subscription 

agreement. (See Section I.) As such, EIG has sought (among other things) documents (1) showing 

or discussing any sending or receiving of the 450 NIWs, (2) showing or discussing any saving of 

the 450 NIWs, (3) about any of the yearly subscription agreements or terms and conditions, and 

(4) communications between EIG and Constellation about NIW or the subscription terms. (See

generally Dkt. 110-4 (EIG’s document requests).) Constellation produced over 3,500 documents 

representing nearly 26,000 pages, the bulk of which being responsive to one or more of the four 

preceding categories (for example, just the emails from EIG to Constellation and their attachments 

account for nearly half of these documents). (Klapp Decl. ¶¶ 2–3.) The process to search for, 

collect, review, and produce nine years’ worth of documents for 450 discreet issues took months. 

(Id.) Given the long timeframe back to 2011, it involved recovering email from an archive. (Id. ¶ 

2)

EIG wants to increase this work fivefold. While it says, “there are likely only relatively 

few third-party copyrighted publications at issue,” it identifies no less than five publications it 

Case: 1:20-cv-03983 Document #: 116 Filed: 05/23/22 Page 7 of 16 PageID #:1932
8

wants to baselessly investigate: Platts Nuclear Fuels, Fuel Cycle Week, TradeTech’s Nuclear 

Market Review, NAC International’s Nuclear Fuel Market Issues & Insights, and Energy 

Resources International’s Market and Risk Report. (Mot. at 7.) That is five times the number of 

publications at issue in this case already, and it invites five times the work already performed for 

NIW (the only publication actually relevant to this case). To be clear, EIG apparently demands the 

same four buckets of documents discussed in the paragraph above, but for publications with which 

it has no copyright rights. (See Dkt. 110-4 at 24; Mot. at 7–8.) This would be a monumental 

undertaking for no good reason.

The request is actually much worse. While EIG’s motion focuses on five example 

publications, the request is not so limited. EIG’s examples appear to comprise the publications

that may have been used by the team of five or so Constellation employees responsible for 

purchasing uranium (Constellation employees who subscribed to NIW came from this team). But 

EIG’s motion apparently is not limited to these five publications, and the actual document request

covers all of Constellation. (Dkt. 110-4 at 24.) Thus, RFP No. 49 asks Constellation about all thirdparty publications used anywhere within Constellation. Constellation has over 13,000 employees, 

and it would take an incredible amount of time and effort just to determine the universe of 

publications covered by the request, let alone to search for, collect, review, and produce associated

documents. (See Ex. 3 at 22; Klapp Decl. ¶¶ 2–3.)

Thus, because EIG has offered no reason to believe the documents sought would contain 

relevant information, and the undertaking to produce them would be unduly burdensome, the Court 

should deny EIG’s motion to compel documents responsive to RFP No. 49.

Case: 1:20-cv-03983 Document #: 116 Filed: 05/23/22 Page 8 of 16 PageID #:1933
9

C. The Court should sustain Constellation’s objections to EIG’s RFP No. 41, as 

Constellation’s network security systems are irrelevant to this litigation and 

disclosure would present a substantial security risk.

Among other things, Constellation operates nuclear power plants. EIG has no need to learn 

the details of Constellation’s network security systems, and there are myriad reasons why EIG

must not have access to this critically sensitive information.

1. EIG has not shown that the documents sought may contain relevant 

information.

The Court can easily reject EIG’s demand, as the information sought has no relevance at 

all to the claims or defenses in this case. EIG points to Constellation’s affirmative defenses of 

statute of limitations and failure to mitigate damages (Mot. at 8), but those defenses have no 

connection to Constellation’s network security systems. As summarized above, the Constellation 

personnel who received emailed editions of NIW would occasionally forward the edition to a 

colleague or save it to a network folder where it was accessible to (but not accessed by) colleagues.

(See Section I.)3 As Constellation emphasized during the meet and confer process, Constellation’s 

affirmative defenses are not based on the premise that EIG could have accessed Constellation’s 

network or email systems and monitored whether anyone was improperly saving or forwarding 

too many copies of NIW. Instead, Constellation’s defense is based on EIG’s external tracking 

capabilities, and Constellation’s network security systems have no relevance to these external 

capabilities.

EIG admits that it could—and did—track Constellation’s conduct notwithstanding lack of 

access to Constellation’s network, and this ability formed the basis for EIG’s infringement claim. 

EIG described these capabilities in its Complaint:

3 Such acts did not constitute copyright infringement in view of the terms of the subscription 

agreements. (See Section I.)

Case: 1:20-cv-03983 Document #: 116 Filed: 05/23/22 Page 9 of 16 PageID #:1934
10

Plaintiffs have analyzed data reflecting Defendant’s activity on the servers of the 

third-party email delivery service (the “Delivery Service”) that delivers NIW to 

Defendant. Although neither Plaintiffs nor the Delivery Service have ever accessed 

Defendant’s servers or computer systems, various employees of Defendant have 

downloaded certain information and images contained in the cover email provided 

with each issue of NIW from the Delivery Service’s servers.

The data from the Delivery Service’s servers indicates that the emails delivering 

NIW were opened multiple times each day, using multiple unique devices. Upon 

information and belief, Defendant has been copying and distributing copies of the 

Registered NIW Works to employees of Defendant.

(Dkt. 1 ¶¶ 35–36 (emphasis added).) In other words, this external tracking capability provided by 

EIG’s email vendor allowed EIG to track activity that supposedly shows copyright infringement 

without having any access to Constellation’s internal network. (See id.)

Constellation’s affirmative defense is based on EIG’s external tracking capability, not 

anything related to Constellation’s internal network or network security system. The body of 

Constellation’s affirmative defense specifically references the abovementioned external data 

tracking: “Plaintiffs regularly analyzed data reflecting Constellation’s activity on the servers of a 

third-party email delivery service, and yet Plaintiffs did not initiate this action until July 2020.” 

(Dkt. 96 at p.21 ¶ 1 (emphasis added).) The material sought about Constellation’s network security 

systems is totally irrelevant.

2. The discovery sought creates a substantial security risk that is not 

proportional to the needs of the case.

Even assuming the details of Constellation’s network security systems could have some 

hypothetical relevance to the case (they do not), that relevance is far outweighed by the risks 

presented by disclosure. Discovery must be “proportional to the needs of the case,” and its 

purported relevance must be weighed against “the burden . . . of the proposed discovery.” Fed. R. 

Civ. P. 26(b)(1). Discovery is not proportional to the needs of the case and is overly burdensome 

Case: 1:20-cv-03983 Document #: 116 Filed: 05/23/22 Page 10 of 16 PageID #:1935
11

when it unreasonably risks adverse consequences of the disclosure. See Johnson v. Nyack Hosp., 

169 F.R.D. 550, 562 (S.D.N.Y. 1996) (Rule 26 allows courts to limit discovery “where the burden 

is not measured in the time or expense required to respond to requested discovery, but lies instead 

in the adverse consequences of the disclosure of sensitive, albeit unprivileged, material”); U.S. 

Equal Emp. Opportunity Comm’n v. Akebono Brake Corp., No. CV 3:16-3545-CMC-SVH, 2018 

WL 1365796, at *6 (D.S.C. Mar. 16, 2018) (limiting discovery in view of “burden on [defendant]

related to safety, business disruption, and privacy and confidentiality concerns”); Gil v. Sanchez, 

No. 17CV698-CAB(JMA), 2018 WL 1621519, at *2 (S.D. Cal. Apr. 4, 2018) (denying requests 

due to “security and safety issues”); see also John B. v. Goetz, 531 F.3d 448, 460 (6th Cir. 2008)

(on mandamus, holding that district court’s discovery orders “fail to account properly for the 

significant privacy and confidentiality concerns present in this case”); Hespe v. City of Chicago, 

No. 13 C 7998, 2016 WL 7240754, at *3 (N.D. Ill. Dec. 15, 2016) (discovery not proportional 

because any possible benefit is “outweighed by plaintiff’s privacy and confidentiality interests”).

That is the case here. In particular, the information sought concerns the systems that keep intruders 

out of Constellation’s computer network, which is extremely sensitive given Constellation’s 

critical role as a provider of electricity to millions of Americans. As explained further below, if 

Constellation’s network security information is disclosed, the risk of a bad actor gaining that 

sensitive information from another source (e.g., a law firm) is very real.

Constellation operates the largest fleet of nuclear power plants in the United States and a 

fleet of natural gas, hydroelectric, wind, and solar assets. (Mueller Decl., Ex. 2.) As a result, 

Constellation is a target of bad actors seeking to cause harm to the United States or acting for their 

own financial gain. (Bart Decl. ¶ 3.) In particular, “[t]hreat sources continue to seek to exploit 

potential vulnerabilities in the electric generation and natural gas industry associated with 

Case: 1:20-cv-03983 Document #: 116 Filed: 05/23/22 Page 11 of 16 PageID #:1936
12

protection of sensitive and confidential information, grid infrastructure and other energy 

infrastructures.” (Mueller Decl., Ex. 3 at 38 (emphasis added); accord Bart Decl. ¶¶ 3–4.) This is 

well-known to anyone who follows the news. Just last year, Colonial Pipeline—the largest pipeline 

system for refined oil products in the United States—suffered a successful cyberattack that caused 

its pipeline operations to shut down:

(Mueller Decl., Ex. 4 at 1.)

Regrettably, this was not an isolated incident. A few weeks ago, “a cyberattack [] forced 

wind turbine giant Nordex to shut down internal systems.” (Mueller Decl., Ex. 5.) Indeed, every 

day of the year, companies have their operations impacted by cyberattacks of various sorts. (Bart 

Decl. ¶ 4.) A report from International Business Machines Corp. found that the energy industry 

was the third most targeted sector for cyberattacks in 2020. (Mueller Decl., Ex. 6 at 2.) “[E]very 

day, sophisticated state-sponsored actors and criminal hackers are seeking new ways to target 

critical U.S. infrastructure.” (Mueller Decl., Ex. 7 at 1.) The United States government has publicly 

warned of the significant risk posed by cyberattacks on the U.S. Energy sector. For example, on 

March 24, 2022, several government agencies issued a joint Cybersecurity Advisory with 

information on “multiple intrusion campaigns targeting U.S. and international energy sector 

organizations conducted by indicted Russian state-sponsored cyber actors from 2011 to 2018.” 

(Mueller Decl., Ex. 8 at 1.)

Case: 1:20-cv-03983 Document #: 116 Filed: 05/23/22 Page 12 of 16 PageID #:1937
13

As a significant participant in supplying power in the United States, Constellation is a target 

of state actors and ransomware groups. (Bart Decl. ¶ 3.) Throughout the day, every day, 

unscrupulous third parties all over the world are scanning and testing Constellation’s systems at 

all levels. (Bart Decl. ¶ 5.) The attacks and disruptions directed at power companies “are becoming 

increasingly sophisticated and dynamic” and “advanced digital technologies increase the 

potentially unfavorable impacts of such attacks.” (Mueller Decl., Ex. 3 at 38; accord Bart Decl. ¶ 

4.) As the U.S. government explained, the war in Ukraine has only increased the risks associated 

with such activity. (See Mueller Decl., Ex. 8 at 2.)

If successful, a cyberattack could have significant ramifications on the operation of 

Constellation’s business. (Bart Decl. ¶¶ 4, 6.) Furthermore, such an attack could directly affect 

numerous utility companies. (Id. ¶ 7.) While Constellation recently spun off from its former parent 

company, Exelon Corporation, Constellation still shares network resources with Exelon 

distribution utilities (Atlantic City Electric, Baltimore Gas and Electric, Commonwealth Edison, 

Delmarva Power & Light, PECO Energy Company, and Potomac Electric Power Company), and 

will do so for some time. (See id.; see also Mueller Decl., Ex. 9.) A breach of that network would 

therefore impact not only Constellation, but Exelon utilities who serve more than 10 million 

customers (Mueller Decl., Ex. 9.)

To successfully defend itself against cyberattacks, Constellation keeps the details about its 

network security systems secret. (Bart Decl. ¶ 8.) This secrecy is in and of itself a critical aspect 

of maintaining network security. (Id. ¶ 9.) If bad actors know details about the security 

infrastructure, they know what, when, or how to attack. (Id.) For example, the identity of the 

firewall technology used by Constellation could be invaluable to attackers. (Id.) If they know this 

Case: 1:20-cv-03983 Document #: 116 Filed: 05/23/22 Page 13 of 16 PageID #:1938
14

information, Constellation could become a victim to a targeted attack against any known 

vulnerabilities associated with its infrastructure. (Id.)

EIG argues that there is a confidentiality order in this case (Mot. at 10), but that misses the 

point. Once a document is provided to another party, the producing party’s control over that 

information is dramatically limited and the risk of disclosure heightened. See Goetz, 531 F.3d at

458 (requested discovery will result in the duplication of confidential information that “implicates 

significant privacy and confidentiality interests—regardless of whether the imaged media are 

initially held under seal—and these interests cannot be fully protected ex post.”). Constellation is 

not assuming that EIG or its lawyers at Powley & Gibson intend to launch a cyberattack on 

Constellation or intentionally pass the information to someone who will. The primary concern is 

that bad actors could acquire this information from the various places it will be found if 

Constellation is compelled to produce it.

Law firms are targets of cyberattacks, in large part because they are repositories of sensitive 

client information. (Mueller Decl., Ex. 10 at 2.) Document productions “can be ripe targets for 

corporate espionage and data breach as they may contain trade secrets and other proprietary 

business information.” The Sedona Principles, Third Edition: Best Practices, Recommendations & 

Principles for Addressing Electronic Document Production, 19 Sedona Conf. J. 179 n.147 (2018).

Indeed, “law firms tend to be more vulnerable than other types of businesses.” (Mueller Decl., Ex. 

10 at 2.) In October 2020, the American Bar Association found that 29% of law firms reported a 

security breach, and that fails to count the unknown breaches. (Mueller Decl., Ex. 11 at 3.)

The risk of a bad actor gaining sensitive information about Constellation from another 

source, like third-party law firms, is very real. The Department of Homeland Security’s 

Cybersecurity and Infrastructure Security Agency, the Federal Bureau of Investigation, and the 

Case: 1:20-cv-03983 Document #: 116 Filed: 05/23/22 Page 14 of 16 PageID #:1939
15

Department of Energy, recently released a report titled, “Tactics, Techniques, and Procedures of 

Indicted State-Sponsored Russian Cyber Actors Targeting the Energy Sector.” (Mueller Decl., Ex. 

12.) It noted that, in a recent campaign by actors associated with the Russian government, the 

actors gained access to its energy-sector targets by first exploiting vulnerabilities from third-party 

vendors:

Beginning in 2016, the threat actor began widely targeting U.S. Energy Sector 

networks. The actor conducted these attacks in two stages: first targeting thirdparty commercial organizations (such as vendors, integrators, and suppliers) and 

then targeting Energy Sector organizations. The threat actor used the 

compromised third-party infrastructure to conduct spearphishing, watering hole, 

and supply chain attacks to harvest Energy Sector credentials and to pivot to 

Energy Sector enterprise networks.

(Id. at 3 (emphasis added).)

At bottom, the Court can and should reject EIG’s request under RFP No. 41 because the 

documents are irrelevant to the claims and defenses in this action. But even if EIG can establish 

some relevance, the benefits of production would be far outweighed by the risks presented to 

Constellation and Exelon, the customers that depend on their services, and the governments that 

depend on their role in providing a dependable energy infrastructure.

III. CONCLUSION

For the foregoing reasons, the Court should DENY EIG’s motion to compel.

Dated: May 23, 2022 Respectfully submitted,

/s/ Louis A. Klapp

Brian O. Watson

Sondra A. Hemeryck

Louis A. Klapp

RILEY SAFER HOLMES & CANCILA LLP

70 W. Madison, Suite 2900

Chicago, Illinois 60602

Case: 1:20-cv-03983 Document #: 116 Filed: 05/23/22 Page 15 of 16 PageID #:1940
16

Phone: (312) 471-8700

Fax: (312) 471-8701

bwatson@rshc-law.com

shemeryck@rshc-law.com

lklapp@rshc-law.com

Attorneys for Defendant and Counterclaim 

Plaintiff Constellation Energy Generation, 

LLC 

Case: 1:20-cv-03983 Document #: 116 Filed: 05/23/22 Page 16 of 16 PageID #:1941