The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
LINET AMERICAS, INC., )
)
Plaintiff, )
)
vs. ) Case No. 1:21-cv-6890
)
HILL-ROM HOLDINGS, INC.; )
HILL-ROM COMPANY, INC.; )
HILL-ROM SERVICES, INC., ) Magistrate Judge Jeffrey T. Gilbert
)
Defendants. )
ORDER
This matter is before the Court on a Motion [ECF No. 70] (the “Motion”) filed
by Defendants Hill-Rom Holdings, Inc., Hill-Rom Company, Inc., and Hill-Rom
Services, Inc. (“Hillrom”) to compel discovery from Plaintiff Linet Americas, Inc.
(“Plaintiff” or “Linet”). For the reasons below, the Motion is granted in part and
denied in part.
Hillrom seeks discovery designed to determine when Linet reasonably
anticipated litigation with Hillrom. Hillrom says this discovery is relevant to when
Linet may have had a duty to preserve electronically stored information (“ESI”) of
four former Linet employees that Linet says was discarded or destroyed after those
employees left Linet. Defendants’ Memorandum of Law in Support of Its Motion to
Compel Discovery from Plaintiff Linet [ECF No. 74] (“Defs’ Br.”).
Although Hillrom’s requests can be characterized as “discovery on discovery,”
it is not improper under the circumstances of this case. “Most courts . . . acknowledge
that ‘discovery about discovery’ can be appropriate under certain circumstances.
Discovery of that kind is permitted when one party’s discovery compliance has
‘reasonably [been] drawn into question,’ so that there is ‘an adequate factual basis’
for an inquiry. . .” In re Caesars Ent. Operating Co., Inc., 2018 WL 2431636, at *13
(Bankr. N.D. Ill. May 29, 2018) (internal citations omitted); see also LKQ Corp. v. Kia
Motors Am., Inc., 2023 WL 4365899, at *1 (N.D. Ill. July 6, 2023) (concluding
discovery on discovery is permitted but “should be rare and certainly the exception,
not the norm”); Downing v. Abbott Lab’ys, 2017 WL 11812654, at *1 (N.D. Ill. Nov. 2,
2017) (“While ‘[t]here are circumstances where [ ] collateral discovery is warranted,’
a party must proffer ‘an adequate factual basis for [her] belief that the current
production is deficient.’”) (internal citations omitted); Gross v. Chapman, 2020 WL
4336062 at *2 (N.D. Ill. July 28, 2020) (collecting cases).
The Court finds Hillrom has established an adequate factual basis upon which
to seek information regarding when Linet reasonably anticipated this litigation.
There is no dispute that the ESI for the four former Linet employees was discarded.
Plaintiff’s Opposition to Defendants’ Motion to Compel Discovery [ECF No. 81] (“Pl.
Resp.”) at 2-3. Linet says these custodians left the company in August 2018, October
2019, and December 2019 and Linet discarded their ESI either in accordance with
what it characterizes as its regular business practice within three months of those
employees leaving the company or at least by April 2020 when it transferred only
active accounts to the company’s new cloud-based email system. Pl. Resp. at 3-4.
Hillrom, in turn, says the disposal of the former employees’ emails “coincident with
the company’s retention of the counsel handling this case” provides an adequate
factual basis for the limited discovery Hillrom is seeking into whether the ESI should
have been retained in case litigation materialized. Defs’ Br. at 12. Hillrom points to
Linet’s January 2020 engagement of Hunton Andrews Kurth, the law firm that
represented Linet in this lawsuit when it filed its complaint, further noting Linet’s
counsel had previously filed an antitrust lawsuit against Hillrom in 2015 on behalf
of a client other than Linet based on the same alleged anticompetitive contracts at
issue in this case. Defs’ Br. at 10-11.
Although Linet retained counsel nearly two years before this lawsuit was filed
on December 28, 2021, [ECF No. 1], “[f]ederal courts across the country have
recognized that a ‘plaintiff's duty [to preserve] is more often triggered before litigation
commences, in large part because plaintiffs control the timing of litigation.’” Cohn v.
Guaranteed Rate, Inc., 318 F.R.D. 350, 354 (N.D. Ill. 2016) (collecting cases).
Moreover, it appears Linet may have deleted the ESI from at least two of the
custodians (who departed in October and December 2019, respectively) after it
retained counsel. Defs’ Br. at 10-11. If Linet’s duty to preserve was triggered around
the time it retained counsel and Linet failed to preserve documents after that date,
that would present “a sufficient factual basis to explore what steps were taken to
preserve those records and why they no longer exist.” AOT Holding AG v. Archer
Daniels Midland Co., 2021 WL 6118175, at *5 (C.D. Ill. Sept. 3, 2021).
Linet says that a duty to preserve adheres only when the party knew or should
have known litigation was imminent and argues Hillrom has not made that showing
here, or yet. Pl. Resp. at 8. But Hillrom seeks this discovery to help it determine
whether Linet reasonably anticipated litigation when it retained counsel and, if so,
whether it should have preserved the four former employees’ ESI. Linet, on the other
hand, relies on cases addressing whether to award spoliation sanctions for the
destruction of documents (a matter not now in issue in this case) rather than the
standard for the discovery Hillrom is seeking. Defendants’ Reply Brief in Support of
Its Motion to Compel Discovery from Plaintiff Linet [ECF No. 82] (“Defs’ Reply”) at 3
(distinguishing Linet’s cases).1 See also AOT Holding AG, 2021 WL 6118175, at *4
n.3 (rejecting argument that “standard for relevancy of discovery about discovery” is
equivalent to that described in decisions addressing whether spoliation sanctions are
warranted).
Moreover, following the 2015 amendments to Rule 37(e) of the Federal Rules
of Civil Procedure, courts have found “[t]he uniform understanding is that the duty
to preserve is triggered when litigation is commenced or reasonably anticipated.” DR
Distributors, LLC v. 21 Century Smoking, Inc., 513 F. Supp. 3d 839, 977–78 (N.D. Ill.
2021) (citing Fed. R. Civ. P. 37(e), advisory committee’s notes to 2015 amendments);
In re Loc. TV Advert. Antitrust Litig., 2023 WL 5607997, at *5 (N.D. Ill. Aug. 30, 2023)
(same); Trahanas v. Nw. Univ., 2018 WL 11409096, at *2 (N.D. Ill. Dec. 3, 2018) (“A
party has a duty to preserve evidence ‘that it has control over and which it reasonably
knows or can foresee would be material (and thus relevant) to a potential legal
action.’”) (internal citations omitted). Hillrom has brought forth sufficient facts to
justify the limited discovery it seeks about whether Linet may have reasonably
anticipated litigation with Hillrom around the time it discarded or destroyed certain
former employees’ ESI. Accordingly, discovery is appropriate as to when Linet’s duty
to preserve arose. See Sloan Valve Co. v. Zurn Indus., Inc., 2012 WL 1886353, at *14
(N.D. Ill. May 23, 2012) (allowing discovery “of when Zurn’s obligation to preserve
evidence arose” to create “more fully-developed record”).
Linet also says its retention of counsel is not “dispositive” of when Linet
reasonably anticipated litigation, but that does not mean the discovery Hillrom seeks
is not potentially relevant. Pl. Resp. at 15. Courts routinely consider the retention of
counsel to be a relevant factor in determining when a party had a duty to preserve
evidence. See, e.g., EBIN New York, Inc. v. SIC Enter., Inc., 2022 WL 4451001, at *8
(E.D.N.Y. Sept. 23, 2022) (holding plaintiff’s duty to preserve arose in early 2017
notwithstanding that lawsuit was filed in 2019; noting plaintiff’s president “thought
Defendants’ product violated Plaintiff’s trade dress rights in 2016 and, a couple of
months later, contacted Plaintiff’s counsel to discuss Defendants’ product” and a
retention agreement was executed with the firm that filed lawsuit in 2017); Cohn,
318 F.R.D. at 354 (considering fact that plaintiff “had retained the attorney who
1 The Court notes that Micron Tech., Inc. v. Rambus Inc., 645 F.3d 1311, 1320 (Fed. Cir.
2011), another case cited by Linet, rejects Linet’s strict interpretation that a duty to preserve
is only triggered when litigation is imminent. Pl. Resp. at 9. See Micron Tech., Inc., 645 F.3d
at 1320 (describing reasonably foreseeable standard for duty to preserve evidence as “a
flexible fact-specific standard that allows a district court to exercise the discretion necessary
to confront the myriad factual situations inherent in the spoliation inquiry” and that “is not
so inflexible as to require that litigation be ‘imminent, or probable without significant
contingencies’”) (internal citations omitted) (distinguishing Trask–Morton v. Motel 6
Operating L.P., 534 F.3d 672, 681 (7th Cir. 2008), notwithstanding “imminent” language, as
ultimately considering whether defendant had any “reason to suspect litigation” in analyzing
duty to preserve).
represents her in this lawsuit” as relevant to when plaintiff had a duty to preserve
evidence).2 Therefore, discovery about Linet’s retention of litigation counsel is
relevant to determining when Linet had a duty to preserve evidence.3
For these reasons, the Court, in its discretion, finds that Hillrom’s request for
production of the January 2020 retention letter with Hunton Andrews Kurth and a
log of communications between Linet and its law firm from December 2019 to April
2020 (containing the dates, participants in, and the subject matter of the
communications) is narrowly tailored to determining when Linet reasonably
anticipated litigation.4 Nor does Linet contend it would be unduly burdensome to
produce this information. Although Linet raises concerns that production of its
retention letter would divulge privileged information, Pl. Resp. at 13-14, Linet can
redact from that letter any attorney-client privileged information and include those
redactions on a privilege log. The Court agrees with Hillrom, however, that the scope
2 See also Pable v. Chicago Transit Auth., 2023 WL 2333414, at *21 (N.D. Ill. Mar. 2, 2023)
(that plaintiff “solicited two attorneys about a claim against the [defendant] . . . demonstrates
not only that litigation relating to the events precipitating [plaintiff’s] leave was reasonably
foreseeable, but also that [plaintiff] in fact anticipated such litigation”); Waymo LLC v. Uber
Techs., Inc., 2018 WL 646701, at *14–16 (N.D. Cal. Jan. 30, 2018) (considering, among other
factors, Uber’s retention of counsel in determining when Uber reasonably foresaw litigation
and had duty to preserve evidence); Hallum v. Sheriff of Delaware Cnty., 2023 WL 6367656,
at *6 n.13 (N.D. Okla. Sept. 29, 2023) (collecting cases where courts found a pre-litigation
duty to preserve evidence triggered by a party’s retention or consultation with attorney).
3 As Linet acknowledges, the case it relies on addresses the work product doctrine. Pl. Resp.
at 8, 14-15 (citing Allendale Mut. Ins. Co. v. Bull Data Sys., Inc., 145 F.R.D. 84, 87 (N.D. Ill.
1992)). In Allendale, the court considered the concept of anticipation of litigation while
endeavoring to “strictly constru[e] the elements of work product” protection and avoid
application of this doctrine to unnecessarily insulate relevant documents from discovery. Id.
The Court is not persuaded that this analysis is applicable to determining when a plaintiff
has a duty to preserve potentially relevant information for anticipated litigation. In addition,
while Linet says the imminent litigation standard from Allendale has been cited in the
context of the duty to preserve, Pl. Resp. at 8, that decision (Torgersen v. Siemens Bldg. Tech.,
Inc., 2021 WL 2072151, at *2 (N.D. Ill. May 24, 2021)) did not address the relevance of
retention of counsel to the analysis.
4 Hillrom alternately sought “any communications with Hunton that relate to potential
claims by Linet against Hillrom,” Defs’ Br. at 9, and “at least the dates, participants in, and
subject matter of communications between Linet and Hillrom around the time Linet deleted
the ESI,” Defs’ Reply at 9. At this juncture, the Court believes that a log should be sufficient
for Hillrom’s purpose of identifying communications that may relate to Linet’s anticipation
of litigation within a discrete time period. Most or at least many of the communications
between Linet and its then-counsel, Hunton, are likely to be protected by the attorney-client
privilege or even the work product doctrine, so requiring production of “any communications”
as Hillrom initially requested would seem to be unduly burdensome and not particularly
proportional to the inquiry at hand. After reviewing Linet’s log, Hillrom may be able to frame
and explain the relevance of a more targeted request or inquiry.
of representation, if laid out in the engagement letter, is not privileged unless it
otherwise reflects legal advice. See Pruitt v. Pers. Staffing Grp., LLC, 2017 WL
11639764, at *2 (N.D. Ill. Aug. 28, 2017) (noting “[t]he parties agree that retainer
agreements generally are not protected by the attorney-client privilege unless they
contain legal advice or strategy” and ordering production of scope of representation
in retainer agreement); Am. Council of Blind of Metro. Chicago v. City of Chicago,
2021 WL 5321054, at *1 (N.D. Ill. Nov. 16, 2021) (“the privilege does not cover things
like retainers or fee agreements as those are ‘incidental to the substance of
representation.’”) (quoting U.S. v. Leonard-Allen, 739 F.3d 948, 953 (7th Cir. 2013).
Hillrom also seeks to compel production of “Linet’s document preservation and
retention policies from January 2018 to April 2020.” Defs’ Br. at 3-4. In this case, the
question of when Linet’s duty to preserve arose “affects the relevancy of discovery
requests” regarding Linet’s “process for preserving documents and complying with
requests.” AOT Holding AG, 2021 WL 6118175, at *5. In light of the parties’ dispute
about whether Linet had a duty to preserve evidence after it retained counsel in
January 2020, Linet’s document retention policies in effect from December 2019
through April 2020 are “directly relevant to the location of evidence for this case and
whether that evidence should have existed when the duty to preserve was triggered.”
AOT Holding AG, 2021 WL 6118175, at *7. In particular, these policies are relevant
to Linet’s disposition of ESI from the two custodians who left the company less than
three months before the retention letter was signed in January 2020 and whose ESI
therefore may have still existed when Linet retained counsel.
The Court is not persuaded that Hillrom is entitled to discovery of Linet’s
document retention policies prior to December 2019. Hillrom points to allegations in
the Complaint that Linet was aware of the alleged anticompetitive Hillrom contracts
in 2013 and 2014, and it cites evidence that Hillrom says shows Linet was aware of
Hillrom’s contracts and other alleged anticompetitive practices in 2017 and 2018.
Defs’ Br. Defs’ Br. at 9-10. The Court agrees with Linet that its employees’ mere
awareness of the contracts or conduct that eventually provided the factual basis for
the claims alleged in this litigation is not a sufficient basis for discovery of Linet’s
document retention policies from January 2018 through November 2019. See Pl.
Resp. at 9-10. Hillrom does not cite any authority that this suffices to provide an
adequate factual basis to pursue this discovery nor to link Linet’s awareness of
Hillrom’s practices in 2013 and 2014 with any reasonable anticipation of litigation at
that time.
Finally, Hillrom asks the Court to compel Linet to supplement its answers to
Hillrom’s interrogatories about the potential existence of alternative sources for the
deleted ESI, including whether the ESI can be obtained from Linet’s anti-spam
system and whether Linet’s parent company maintains archives that could include
the former employees’ ESI, or whether other sources for this ESI exist. Defs’ Br. At
14-15. Linet answered these interrogatories, but Hillrom is not satisfied with Linet’s
answers. In the Court’s view, ordering Linet to supplement its interrogatory
responses will not advance the ball on these issues at this time. The parties appear
to have been meeting and conferring about Hillrom’s requests for additional
information about potential alternative sources for the missing ESI when the Motion
was filed, and they do not appear to have finished that process. See Defendants’
Exhibits V and W [ECF No. 75]. Perhaps Hillrom felt that it would include this issue
in its Motion since it was going to file a motion to compel on other matters anyway
but that is not a persuasive reason to shortcut the Local Rule 37.2 process (if that is
what occurred).
For example, Linet apparently offered to identify the name of its anti-spam
system in response to Hillrom’s request for that information, Exhibit W [ECF No. 75],
at Page I.D. 1221, and Linet should do so, in the Court’s view. The Court agrees with
Linet, however, that the name of Linet’s vendor for that system is irrelevant at least
as of now and is more intrusive and tangential than likely to be probative in the
context of Hillrom’s present inquiry. The name of the system should allow Hillrom to
explore whether it can rely on what Linet says about the capabilities of that system
if that is the reason Hillrom wants that information. Similarly, Hillrom’s request that
Linet explore whether its parent company has any information about the missing ESI
appears to be farther afield than necessary or appropriate given the absence of any
information that Linet’s parent would have that information. Counsel can discuss
whether there are potential data sources within Linet’s possession, custody, or control
that Linet has not yet explored, but one would think Linet has exhausted that work
already given that it previously identified the four former employees as document
custodians.
The parties also should continue to meet and confer on Hillrom’s request to
clarify Linet’s statement that “‘the volume of data stored’ in the anti-spam system ‘is
so large that it is not possible to download and search for records of email of the Four
Custodians’ . . .” Defs’ Br. at 15. That is a legitimate question, in the Court’s view, but
requiring Linet to supplement its answer to an interrogatory as opposed to allowing
or encouraging the parties to discuss that issue further in real time (i.e., by phone,
video or in person, rather than by writing letters) does not seem to be the most
productive way to proceed given that Linet’s first attempt to answer Hillrom’s
interrogatory fell far short in Hillrom’s view. Linet should be able to better explain
why searching its anti-spam system either is not feasible without undue burden
and/or would not yield the information Hillrom is seeking. Again, one would think
Linet has every reason to do what it reasonably can do to find ESI from document
custodians it initially agreed were appropriate in this case. If the parties reach
impasse on this issue after they exhaust the Local Rule 37.2 meet and confer process,
and Hillrom still believes it is entitled to more information from Linet, it can bring
the issue back to the Court. The Court has a high level of confidence, however, that
the parties can make more progress before the issue is ripe for the Court to resolve.
Accordingly, Defendants’ Motion to Compel [70] is granted in part and denied
in part, as set forth above. Linet shall produce the January 2020 retention letter and
a log containing the dates, participants in, and subject matter of communications
between Linet and its counsel related to potential claims against Hillrom from
December 2019 to April 2020, as well as its document preservation and retention
policies in effect from December 2019 to April 2020, within 21 days of the date of this
Order. The parties also shall meet and confer regarding Hillrom’s request that Linet
supplement its interrogatory response about the availability of alternative sources
for the deleted ESI and file a short joint status report about the status and result of
those discussions within 21 days of the date of this Order. If the parties want more
time to file that report, they should send a joint email to the Court’s courtroom deputy
and the Court will grant that request.
It is so ordered.
9 _ A -
effrey T. Gilbert
United States Magistrate Judge
Dated: December 1, 2023