United States District Court, E.D. Wisconsin
MIGUEL MURILLO, MICHAEL BAEHMAN, and BONNIE BAEHMAN Plaintiffs,
KOHL'S CORPORATION and KOHL'S DEPARTMENT STORES, INC., Defendants.
Stadtmueller U.S. District Judge
the Court is the plaintiffs' motion to compel certain
discovery pursuant to Federal Rules of Civil Procedure 26 and
37(a). (Docket #38). In their motion, the plaintiffs argue
that the Court should compel: (1) the production of various
documents related to the processes by which the
defendants' establish merchandise prices; (2) the
production of documents that contain the defendants'
nationwide transactional and sales data; (3) the testimony
of a Rule 30(b)(6) witness(s) regarding the defendants'
data retention and IT systems; and (4) the production of
documents that have been involved and/or produced in related
legal proceedings against the defendants in
California. (See generally Docket #39). The
plaintiffs certify that-pursuant to Federal Rule of Civil
Procedure 37(a)(1)-they have properly met and conferred with
opposing counsel regarding these discovery issues prior to
seeking intervention of the Court. (Docket #39 at
plaintiffs' motion to compel is now fully briefed.
(Docket #38, #39, #41, #45). As explained in further detail
below, the plaintiff's motion will be granted in part and
denied in part.
February 18, 2016, the plaintiffs filed a complaint
challenging the defendants' purportedly false and
misleading marketing practices. (Docket #1); see
also (Docket #14) (first amended complaint).
Specifically, the plaintiffs allege that the defendants have
engaged in a pervasive, nationwide scheme by which they
misrepresent the existence, nature, and amount of price
discounts applied to “original” or
“regular” item prices. (Docket #14 ¶¶
1-9, 25-29). By fabricating or inflating their
“original” prices, the plaintiff claim the
defendants' “sales” or
“discounts” are false and deceive consumers into
believing that they get a better deal than what they actually
are. (Docket #14 ¶¶ 1-9, 25-29). The plaintiffs
also claim that the defendants also falsely convey to
consumers the impression that their prices are significantly
lower than those regularly charged for those products by the
defendants or other retailers. (Docket #14 ¶ 27). As a
result of this purportedly deceptive marketing scheme, the
plaintiffs claim to have purchased merchandise, or paid more
for merchandise, than they would have absent deceptive
discount price comparisons. (Docket #14 ¶ 26).
plaintiffs' amended complaint alleges that they seek to
represent two putative Classes of consumers consisting of:
(1) “[a]ll individuals who purchased one or more items
from the defendants advertised at a discount of 30% or more
from a stated original ‘item price' any time during
the relevant statute of limitations period…”;
and (2) “[a]ll individuals who purchased one or more
items from Defendants within the State of Wisconsin
advertised at a discount of 30% or more from a stated
original ‘item price' any time during the relevant
statute of limitations period.…” (Docket #14
¶¶ 77-89). The plaintiffs bring claims for unjust
enrichment and violations of the Wisconsin Deceptive Trade
Practices Act, Wis.Stat. §100.18, et seq.
(“WDTPA”), violations of the consumer fraud laws
of various states, and the Declaratory Judgment Act, 28
U.S.C. §2201(a). (Docket #14 ¶¶ 90-129).
Though the defendants moved to dismiss the plaintiffs'
amended complaint on both substantive and jurisdictional
grounds (Docket #17), the Court denied that motion on June
24, 2016. (Docket #36). Now ripe for adjudication is the
plaintiffs' motion to compel, filed on July 13, 2016.
accordance with Federal Rule of Civil Procedure 26,
Parties may obtain discovery regarding any nonprivileged
matter that is relevant to any party's claim or defense
and proportional to the needs of the case, considering the
importance of the issues at stake in the action, the amount
in controversy, the parties' relative access to relevant
information, the parties' resources, the importance of
the discovery in resolving the issues, and whether the burden
or expense of the proposed discovery outweighs its likely
Fed. R. Civ. P. 26(b)(1). For the purpose of discovery,
relevancy is construed broadly to encompass “any matter
that bears on, or that reasonably could lead to other
matter[s] that could bear on, any issue that is or may be in
the case.” Chavez v. Daimler Chrysler, 206
F.R.D. 615, 619 (S.D. Ind. 2002) (internal citations
omitted). Moreover, “[r]elevant information need not be
admissible at the trial if the discovery appears reasonably
calculated to lead to the discovery of admissible
evidence.” Id. Although the burden of
demonstrating relevance is on the party seeking discovery,
once relevance has been shown, it is the objecting
party's obligation “to show why a particular
discovery request is improper.” Sandoval v. Bridge
Terminal Trans., Inc., No. 14-CV-639, 2015 WL 3650644,
at *1 (E.D. Wis. June 10, 2015).
Court has broad discretion to grant or deny motions to compel
discovery under Rule 37(a) of the Federal Rules of Civil
Procedure. See Fed. R. Civ. P. 26(c); Sattar v.
Motorola, Inc., 138 F.3d 1164, 1171 (7th Cir. 1998)
(“[D]istrict courts have broad discretion in matters
related to discovery.”). Moreover, courts must limit
discovery if the discovery sought is unreasonably cumulative
or duplicative, the party seeking discovery has had ample
opportunity to obtain the information by discovery in the
action, or the burden or expense of the proposed discovery
outweighs its likely benefit. Fed.R.Civ.P.
26(b)(2)(C)(i)-(iii). Indeed, courts must keep in mind that
it is also their duty to “prevent ‘fishing
expeditions' or an undirected rummaging…for
evidence of some unknown wrongdoing.” Cuomo v.
Clearing House Ass'n, L.L.C., 557 U.S. 519, 531
(2009). Therefore, in ruling on a motion to compel, “a
district court should independently determine the proper
course of discovery based upon the arguments of the
parties.” Gile v. United Airlines, Inc., 95
F.3d 492, 496 (7th Cir. 1996).
the Court are four discovery disputes. (See
generally Docket #39). As highlighted above, the
plaintiffs argue that the Court should compel: (1) the
production of various documents related to the processes by
which the defendants establish their pricing policies; (2)
the production of documents that contain the defendants'
national transactional and sales data; (3) the testimony of a
Rule 30(b)(6) witness(s) regarding the defendants' data
and IT systems; and (4) the production of documents involved
in related legal proceedings involving the defendants in
California. The Court will address each of these issues in
Pricing Policy Documents
plaintiffs seek to compel documents concerning the processes
by which the defendants establish their “regular,
” “original, ” and “sale”
prices. (Docket #39 at 13-16; Docket #40, Ex. 1 at 8). To
that end, the plaintiffs have requested documents in the form
7. Marketing studies, research, consultant reports, sales,
and other data [the defendants] used to support [their] claim
that the Merchandise was sold at a bona fide dollar or
percentage Discount from a bona fide “regular” or
“original” item price.
8. Documents sufficient to show any analysis or focus group
studies concerning the pricing, labeling, marketing, and
advertising of the Merchandise.
9. Documents that [the defendants] relied on, including any
study, report, evaluation, assessment, analysis, and/or
similar document, concerning consumer behavior or psychology
or decision making, relating to purchasing items priced at an
actual or purported Discount, including [the defendants']
Merchandise priced or sold at a Discount.
(Docket #40, Ex. 1 at 8).
the defendants attempt to parse these questions into oblivion
by arguing that the questions are vague, confusing, and
unclear (Docket #40, Ex. 3 at 6-8), the Court finds the
aforementioned requests relevant, clear, and
appropriate. In other words, Kohls' objections tend
toward obfuscation rather than genuine
argumentation.See Cunningham v. Smithkline
Beecham, 255 F.R.D. 474, 478 (N.D. Ind. 2009)
(“[An] objecting party must show with specificity that
the request is improper. That burden cannot be met by a
reflexive invocation of the same baseless, often abused
litany that the requested discovery is vague, ambiguous,
overly broad, unduly burdensome or that it is neither
relevant nor reasonably calculated to lead to the discovery
of admissible evidence.”) (internal citations omitted)
(internal quotation marks omitted). Regardless, in the
context of their brief filed in response to this motion, the
defendants have represented to the ...