In Dale v. T-Mobile US, Inc., No. 22 C 3189 (N.D. Ill. Apr. 24, 2025), Illinois Magistrate Judge Jeffrey Cole, discussing the “failure, thus far, of the parties and non-parties to have reached an agreement for modification of the Confidentiality Order plaintiffs and defendants agreed to two years ago in March 2023”, ordered the parties and non-parties to “make another attempt to come up with something workable”. He also suggested the use of a Special Master to handle future third-party discovery disputes.
Case Discussion and Judge’s Ruling
Judge Cole began his ruling by stating: “The discovery dispute filings in this case are ongoing, and, unfortunately, it would appear that many more are in the offing as we are told that subpoenas are about to be issued to some two dozen non-parties…At this point, production by all of those non-parties is stalled – or will likely be stalled – by the failure, thus far, of the parties and non-parties to have reached an agreement for modification of the Confidentiality Order plaintiffs and defendants agreed to two years ago in March 2023…Given that obstacle, the plaintiffs…, defendant T-Mobile, and Non-Parties…met and conferred and nearly reached agreement for amending the Confidentiality Order on all but two topics, perhaps the most significant one being restrictions against T-Mobile’s in-house counsel reviewing highly confidential information from the non-parties. While the parties, non-parties, and their numerous attorneys no doubt worked diligently to arrive at a consensus, the point they reached regarding this most important topic strikes one as a starting point for negotiations, rather than an end point where they have all drawn lines in the sand.”
Continuing, he said: “The first problem becomes apparent early on in T-Mobile’s response to the non-parties’ proposal. T-Mobile is looking at this as the ordinary circumstance where discovery is coming from an opponent. It is not. Discovery is being subpoenaed from non-parties who thus have vastly different expectations regarding the confidentiality of their information… In short, ‘… a non-party is entitled to greater protection in the discovery process than parties in the litigation.’”
Judge Cole added: “Moreover, there were always going to be problems with a Confidentiality Agreement that parties to a litigation came up with without any input from those non-parties from whom extensive discovery is to be sought. So asserting that Judge Durkin approved that Confidentiality Agreement ‘well-aware of the nonparty discovery that Plaintiffs’ claims would entail’…, does not settle the matter and is a bit disingenuous. Indeed, it is incorrect, as the terms the parties agreed to specifically state that the Confidentiality Agreement only applies to ‘to any named Party to this action (including all of its officers, directors, employees, retained experts, and outside counsel and their support staff), and to Non-Parties who agree to be bound by this Order.’…Not surprisingly, the non-parties, who had no say at all in the formation of the Confidentiality Agreement did not agree to be bound by it.”
In noting that both factors for modification leaned in the non-parties’ favor, Judge Cole stated: “So, T-Mobile needs to take another look at its position and perhaps do a little self-scouting. The non-parties have some very real concerns about in-house counsel for a competitor pouring over their documents.” However, he also noted: “the non-parties have to realize that placing restraints on T-Mobile that their opponent need not deal with is an issue. The solution the non-parties have come up with, it has to be said, seems unworkable or, at least, incredibly unwieldy. Requiring T-Mobile to litigate each particular request that a non-party – and remember, there are about two dozen of them – has a problem with will no doubt result in extreme burdens for both T-Mobile and unduly and needlessly strain judicial resources, with severe consequences to the limited judicial time available to any single litigant ‘patiently waiting in the queue for the limited time of federal judges.’… Overall, the lawyers here can do better than has thus far been accomplished.”
Continuing, he said: “So, everyone should take a critical look at their current positions and make another attempt to come up with something workable. I understand that the parties and non-parties may well end up where they are now; but I urge counsel to think “creatively” with an eye toward what is truly and not merely academically meaningful. And, although the parties and non-parties have not mentioned it, given the numbers game, with attorneys and parties far out-numbering court staff, they need to consider the employment of a Special Master for their many, inevitable third-party discovery disputes, especially if they arrive at anything vaguely resembling the non-parties’ proposal. Courts have appointed Special Masters in discovery disputes far less contentious, and involving far fewer parties and far fewer documents.”
As a result, Judge Cole ruled: “the parties should, with the forgoing considerations and weaknesses in their positions in mind, meet and confer over these issues, attempt to reach an agreement, and report back to the court in 30 days…As for the briefing format for eventual motions to compel discovery from non-parties that T-Mobile and the plaintiff have been incapable of agreeing to…, the court agrees with the plaintiff that, as the parties have been able to resolve such a routine matter, and the court will have to impose its preference, that preference is best left for the Magistrate Judge who will be inheriting this case.”
So, what do you think? Do you think Judge Cole’s order to “make another attempt to come up with something workable” was the right approach? Please share any comments you might have or if you’d like to know more about a particular topic.
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