The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MDL No. 2867
In re: Local TV Advertising Antitrust No. 18 C 6785
Litigation
Magistrate Judge Jeffrey T. Gilbert
MEMORANDUM ORDER
This matter is before the Court on Plaintiffs’ Motion to Quash and/or For
Protective Order Regarding Subpoenas Issued to Absent Class Members [ECF No.
523] (“Motion”). The Motion is fully briefed [ECF Nos. 523, 540, 543] and has been
referred to this Magistrate Judge for resolution. See [ECF Nos. 618, 619]. For the
reasons set forth below, the Motion is granted.
The Court assumes the parties’ familiarity with the facts of this case and its
procedural history and will not recount that information in this Order. Briefly, as
relevant to the resolution of this Motion, Defendants served or attempted to serve
document subpoenas on 20 companies (the “Subpoenaed Plaintiffs”) in August and
September 2021. The Subpoenaed Plaintiffs previously filed their own individual
lawsuits but now are part of this multidistrict litigation and members of the putative
class that the named class representatives seek to have certified. Plaintiffs (as used
here, the putative class representatives on behalf of the proposed class) object to the
subpoenas and argue that the discovery Defendants seek is improper because, among
other reasons, the Subpoenaed Plaintiffs are “absent” class members not normally
subject to discovery. Defendants disagree and argue the Subpoenaed Plaintiffs are
“putative,” not absent, class members because a class has not yet been certified and
they, therefore, do not have any heightened protection from discovery that might be
available to absent class members after a class is certified. Defendants also point out
that the Subpoenaed Plaintiffs are separately named parties in this case in their own
right by virtue of originally having filed lawsuits that remain pending. Those
separate actions appear to be dormant at this time though. The parties met and
conferred for about five months between September 2021 and January 2022, but were
unable to reach resolution, and on January 28, 2022, Plaintiffs filed this Motion to
Quash and/or For Protective Order Regarding Subpoenas Issued to Absent Class
Members [ECF No. 523].
In their Motion, Plaintiffs argue there is a general prohibition against
obtaining from absent class members the type of information Defendants are seeking
in their subpoenas, and discovery of absent class members is permitted only on rare
occasions. Plaintiffs argue Defendants must satisfy a heightened standard and make
a “strong showing” that: “(1) the discovery is necessary; (2) the discovery seeks
information that the proponent does not already have; (3) the request is not designed
to whittle down the class or take unfair advantage of absent members; and (4) a full
response will not require absent class members to seek the assistance of counsel.” See
Plaintiffs’ Memorandum in Support of Motion [ECF No. 523], at 5 (citing Zollicoffer
v. Gold Standard Baking, Inc., 2020 WL 6825688, at *2 (N.D. Ill. Nov. 20, 2020); Bell
v. Woodward Governor Co., 2005 WL 8179364, at *1 (N.D. Ill. Nov. 7, 2005); Clark v.
Universal Builders, Inc., 501 F.2d 324, 340 & n.24 (7th Cir. 1974)). Defendants
disagree and contend they only need to satisfy the general discovery standard set
forth in Rule 26(b)(1) of the Federal Rules of Civil Procedures for their subpoenas,
whether the Subpoenaed Plaintiffs are characterized as parties or putative class
members. Defendants say they are not required to meet any heightened standard for
discovery applicable to absent class members since a class has not been certified in
this case as of now.
The Court agrees with Defendants that the Subpoenaed Plaintiffs are putative
class members of an as-yet uncertified class for all the reasons set forth in
Defendants’ Memorandum of Point and Authorities in Support of Opposition to
Plaintiffs’ Motion [ECF No. 540], at 6-9. Under those circumstances, the Court finds
that Defendants do not need to satisfy a heightened standard arguably applicable to
discovery of absent class members after a class has been certified. That said, however,
district courts generally recognize that “[d]iscovery from absent members of the
putative class [i.e., putative class members] is not the norm.” Dennis v. Greatland
Home Health Servs, Inc., 2020 WL 11563081, *3 (N.D. Ill. Nov. 10, 2020) (quoting 1
McLaughlin on Class Actions § 3:9 (17th ed. 2020)). Further, and in any case,
consistent with Rule 26 of the Federal Rules of Civil Procedure, courts have an
obligation to monitor discovery and to ensure that the information sought is
proportional to the needs of a case and kept within acceptable boundaries delineated
by relevance. That is particularly true when discovery is directed to putative class
members who are not active participants in the litigation.
Defendants argue their subpoenas are narrowly targeted to obtain information
necessary for them to oppose class certification. The Court has reviewed the document
subpoenas and disagrees with Defendants that the discovery they seek is narrow in
scope. Defendants are seeking a very large amount of information from the
Subpoenaed Plaintiffs as putative class members. They seek all documents and
communications created over a multi-year time-period relating to a wide variety of
matters including advertising and marketing strategies, budgets, expenditures,
business structure and organization, etc. Defendants say they need the information
because the Subpoenaed Plaintiffs are differently situated than the two named class
representatives who they characterize as a predominantly local advertiser and a
small advertising agency that purchases low-cost spot advertising on behalf of small,
local law firms. Defendants’ Response [ECF No. 540], at 3-4. Defendants say these
companies are not representative of the putative class, which includes large national
and multinational firms likely to engage in advertising that is different in kind and
scope than that conducted by the named class representatives.
Other than maybe Bon Ton Stores, Inc., however, it appears that the
Subpoenaed Plaintiffs are just like the named class representatives as characterized
by Defendants. In other words, they appear to be businesses that are predominantly
local in nature (e.g., Walley’s Auto Sales; Holmen Locker & Meat Market), small law
firms (e.g., Cellino & Barnes, P.C.; Law Offices of Peter Miller), and an individual
(Kevin Forbes). Defendants’ Response [ECF No. 540], at 2, n.1. Defendants do not
develop the record in this respect but most of the Subpoenaed Plaintiffs do not appear
to be large or national much less international companies with advertising footprints
that would be materially different from the named class representatives.1
The Court also is not convinced that Defendants’ discovery is narrowly
calibrated to obtain information they say is necessary to oppose class certification.
Defendants say they seek information that may be relevant to whether Plaintiffs can
use evidence common to all putative class members to prove an antitrust injury, but
the Court questions how much more information Defendants need than they already
have now (or can still develop in discovery) to make the argument that the two named
class representatives are not typical or representative of a proposed class that
includes much larger businesses or advertisers in different regions with assertedly
different advertising methods, strategies, or footprints. Moreover, even if Defendants
do need additional information, their subpoenas sweep much too broadly and
encompass a very large amount of information that the Subpoenaed Plaintiffs as
putative class members would need to search for and compile for production. That
process is likely to be expensive and time consuming. That each of the Subpoenaed
Plaintiffs hired a lawyer at one time to file a complaint on their behalf in cases that
1 Defendants also say they expect documents produced by the Subpoenaed Plaintiffs “to
demonstrate regional and advertiser-specific distinctions in the market for spot ads, the
individualized nature of negotiations for spot advertising and the wide variance in prices that
each advertiser paid because of these factors.” Defendants’ Response [ECF No. 540], at 5.
While the Subpoenaed Plaintiffs may, indeed, have such documents, Defendants—many of
whom are large, national media companies—also likely have documents in their possession,
custody, or control that contain this kind of information. Defendants argue though that even
if they already have some information they can use to oppose class certification, they do not
have information about individual Subpoenaed Plaintiffs’ “buying practices” or “advertising
budgets, marketing strategies, or internal market analyses” and the named class
representatives’ document productions have been very limited in these respects. Defendants’
Response [ECF No. 540], at 11-12. While that may be true, the Court disagrees that the broad
subpoenas Defendants have served are calibrated to obtain the kind of targeted information
Defendants say they are seeking. Rather, as discussed below, Defendants’ subpoenas sweep
extremely broadly in terms of the type of information being sought from the Subpoenaed
Plaintiffs and the time-period for which it is sought, and that seriously implicates
proportionality concerns within the meaning of Rule 26(b)(1).
have now been consolidated into this multidistrict litigation and are now largely
inactive does not change the equation or ameliorate the burden. In the Court’s view,
for these reasons, the discovery Defendants seek is overbroad, unduly burdensome on
putative class members, and not proportional to the needs of the case at this time.
Finally, in multiple footnotes throughout their briefs, the parties acknowledge
and discuss Defendants’ offers to narrow or withdraw certain of their requests for
documents during the meet and confer process that preceded the filing of Plaintiffs’
Motion. It is not clear to the Court if the parties reached any agreements, even
tentative, that narrowed the scope of the subpoenas, but it does not appear that any
firm agreements were reached before the Motion was filed and briefed. Moreover, it
is not the Court’s job, in the first instance, to blue pencil Defendants’ overbroad
subpoenas and modify them to encompass only information that is relevant and
proportional to the needs of this case. If Defendants can live with obtaining
information from fewer than all 20 Subpoenaed Plaintiffs, as they appear to have
offered to do during the meet and confer process, and they significantly narrow the
information they are seeking from a smaller subset of Subpoenaed Plaintiffs, or a
Subpoenaed Plaintiff agrees to produce a narrower or more tailored set of documents,
nothing in this Order is intended to foreclose those discussions or agreements along
those lines. On this record, however, the Court will not enforce or require the
Subpoenaed Plaintiffs to comply with the subpoenas as written.
For all these reasons, Plaintiffs’ Motion to Quash and/or For Protective Order
Regarding Subpoenas Issued to Absent Class Members [ECF. No. 523] is granted.
It is so ordered.
Seftrey . Gilbert
United States Magistrate Judge
Dated: July 5, 2022