In Dale v. Deutsche Telekom AG, No. 22 C 3189 (N.D. Ill. Oct. 4, 2024), Illinois Magistrate Judge Jeffrey Cole denied the plaintiffs’ motion to use their proposed custodian list, which was reduced from sixty custodians to fifty custodians, including three in-house attorneys, stating: “Adding three or four in-house counsel to that list is out of proportion to the needs of the case.”

Case Discussion and Judge’s Ruling

In this class-action involving antitrust claims over the April 2020 merger between T-Mobile and Sprint, the defendant proposed a list of 29 custodians. After six weeks, the plaintiffs made a counter-proposal of 60 proposed custodians that included at least four in-house attorneys. When the parties met and conferred on June 10th, the defendant was willing to add 10 of the plaintiffs’ 31 additional custodians but did not like the addition of the four attorneys. The plaintiffs believed, however, they had relevant information and thus, would not budge.

The defendant agreed to add one more custodian from the plaintiffs’ 60-person list, but stood fast against adding the four lawyers, mostly because their documents, it was claimed, would likely be privileged. But the defendant also thought they would not have much relevant information and, if they did, it would be available from someone among the other 40 custodians. Plaintiffs offered to drop one of the four lawyers from their proposal. Defendant then offered to agree to 50 custodians if plaintiffs would simply drop the attorneys. That was unacceptable to the plaintiffs and so the negotiations continued. In exchange for keeping the three lawyers on the list, plaintiffs offered to drop three non-lawyers, keeping the total at 50. But the defendant refused, leading to the motion before the court.

Judge Cole began the order with this quote from Vakharia v. Swedish Covenant Hosp.: “The discovery rules are not a ticket to an unlimited, never-ending exploration of every conceivable matter that captures an attorney’s interest. Parties are entitled to a reasonable opportunity to investigate the facts—and no more.” He also stated: “Among other uncomplimentary descriptions, modern day discovery has been called a ‘runaway train,’…a ‘monster on the loose’…Call it what you will. The inescapable reality is that discovery has come to dominate civil litigation…Proportionality, like other concepts, it is not self-defining; it requires a common sense and experiential assessment…In other words, all are agreed that discovery has gotten out of hand over the years and needs to be reigned in. But, just because counsel in this case insist that there are 50 or 60 stones to be looked under, does not mean they get to look under every one of them.”

Continuing, Judge Cole stated: “First of all, frankly, fifty custodians is a lot. And, it’s really a lot when they are essentially all of the requesting parties’ choosing… So, even if plaintiffs’ motion is denied – and it is – they get pretty much everything they want in terms of custodians: they get almost double the number of custodians the defendant opened with; they just do not get the three lawyers they have insisted on. Local Rule 37.2 is about compromise, and, it is ‘the nature of a compromise [that] [n]either side gets everything it wants.’…Even without the three attorneys, fifty custodians is quite a lot – to say the least. Indeed, some might even say it is too many.”

Judge Cole elaborated on the denial of the motion, stating: “Significantly, plaintiffs say nothing in their Motion about how these fifty particular custodians, or more importantly, the three lawyers, are ‘proportional’ to the needs of their case… As Judge Durkin wrote almost a year ago, the merger was subjected to ‘significant scrutiny’ by the Federal Communications Commission, the United States Department of Justice Antitrust Division, 14 State Attorneys General, two federal judges, and others…Perhaps the plaintiffs are right, and all that undoubted scrutiny by so many responsible individuals was inadequate. Perhaps the merging companies wove a tapestry of lies, and the government agencies and courts were all gulled or made mistakes and legal error after legal error. But, all that scrutiny does not make a court exercising ‘discretion’ over a motion to compel a lot of discovery on top of a lot of discovery think, in essence, that ‘this merger was so fishy that plaintiffs are entitled to whatever they desire, damn the burdens, costs, and judicial resources.’” He also noted: “certainly, it is naive to think that the discovery that is being sought in this case from several attorneys would not be time-consuming and costly – and not just for the immediate parties. Obviously, privilege claims as to documents from the lawyers would far exceed privilege claims as to non-attorneys.”

Judge Cole also stated in determining that fifty custodians was enough: “When the foregoing is weighed on the ‘proportional-to-the-needs-of-the-case’ scale, the balance tips decidedly over to the disproportionate side – especially given the unpersuasive arguments regarding the relevance of the discovery from the three lawyers… All things being considered, fifty custodians certainly provide a reasonable opportunity – at the very least – for the plaintiffs to reasonably investigate their case. Adding three or four in-house counsel to that list is out of proportion to the needs of the case. The aphorism, ‘the book is not worth the candle’ is not out of place here.”

Hat tip to Alicia Hawley for the heads up on this case!

So, what do you think? Do you agree with the Court that the request for the three attorneys was not proportional? Please share any comments you might have or if you’d like to know more about a particular topic.

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