Antitrust Law Daily Wrap Up, ANTITRUST—NDIll: Containerboard Purchasers Entitled to Documents Explaining Job Descriptions of Defending Manufacturer's Employees, (Jan 10, 2013)

By Jeffrey May, J.D.

In a price fixing action against manufacturers of containerboard, the raw material used to make corrugated products like linerboard and corrugated boxes, defendant Georgia-Pacific LLC was required to produce documents concerning the job duties of 21 current and former employees, the federal district court in Chicago has ruled. However, the complaining purchasers were not entitled to such documents with respect to 400 employees identified on a litigation hold list (Kleen Products, LLC v. Packaging Corporation of America, January 9, 2013, Leinenweber, H.).

Georgia Pacific initially represented that it did not maintain written job descriptions and later resisted turning over “Roles, Responsibilities and Expectations” documents (RREs), which the plaintiffs sought as substitutes for written job descriptions. While the RREs were written with specific employees in mind, they nonetheless described the employees’ jobs, in the court’s view.

The court noted that it was not, “at this juncture, accusing [Georgia Pacific’s] lawyers of deliberately hiding this information from Plaintiffs,” since the attorneys could possibly have been “misled by their client, or more likely (as is often the case in discovery in a case of this magnitude) were unaware of these specific documents … .”

With respect to the 21 employees, the RREs were relevant. They outlined the company's expectations of employees. For example, one RRE instructed an employee to “[p]rovide business leaders with cost and revenue forecasts for the key drivers required to implement strategic decisions that will drive improved profitability in our business segment performance,” and another instructed an employee to “[e]xplore use of demand/supply elasticity, diffusion, available swing capacity.”

The complaining purchasers were entitled to the documents because, in order to prove anticompetitive conspiracy, they had to know first know which employees would be the ones engaged in anticompetitive activities (e.g., knowing, via job descriptions, which employees are involved in pricing), according to the court. Moreover, interrogatory responses produced by Georgia Pacific that described job duties of certain executives might not be an effective substitute for the RREs. The RREs were created in candid moments when litigation was a distant concern and focused on an employee’s day-to-day responsibilities, the court explained.

The broader request was overly burdensome because the purchasers had not demonstrated the benefit of obtaining the information for the 400 employees would outweigh the costs. Litigation hold lists were deliberately expansive, and not everyone on the list was crucial to the case, the court explained.

Thus, the plaintiffs' Motion to Compel production of documents was granted in part and denied in part. In addition to ordering Georgia Pacific to turn over the RREs as to the 21 employees, the court granted the purchasers' request for documents relating to “prior inquiries, investigations, and litigation concerning antitrust-related activities” from January 1, 1996 to December 31, 2010, as “reasonably calculated to lead to the discovery of admissible evidence.”

The case is Case No. 10 C 5711.

Heidi M. Silton (Lockridge Grindal Nauen P.L.L.P.) for Kleen Products LLC. Deborah Kay Brown (Quinn Emanuel Urquhart & Sullivan, LLP) for Georgia Pacific LLC.

Cases: Antitrust IllinoisNews