Fleischmann v. McDonald's Corp.

244 F.R.D. 434, 2007 U.S. Dist. LEXIS 53799, 2007 WL 2137777
CourtDistrict Court, N.D. Illinois
DecidedJuly 24, 2007
DocketNo. 06 C 4485
StatusPublished
Cited by1 cases

This text of 244 F.R.D. 434 (Fleischmann v. McDonald's Corp.) is published on Counsel Stack Legal Research, covering District Court, N.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fleischmann v. McDonald's Corp., 244 F.R.D. 434, 2007 U.S. Dist. LEXIS 53799, 2007 WL 2137777 (N.D. Ill. 2007).

Opinion

MEMORANDUM OPINION AND ORDER

MORTON DENLOW, United States Magistrate Judge.

Petitioners, Marcel Fleischmann and Eduardo V. Mortari, Jr., have moved to compel Respondent, McDonald’s Corporation, to produce' documents pursuant to this Court’s previous order granting Petitioners’ 28 U.S.C. § 1782 application for discovery. Fleischmann v. McDonald’s Corp., 466 F.Supp.2d 1020 (N.D.Ill.2006). McDonald’s objects to the motion to compel, and further asks that the discovery proceedings be terminated. For the reasons stated b.elow, the motion to compel is granted in part and denied in part, and the current proceedings are terminated.

I. BACKGROUND FACTS.

The factual background of this case is set forth in detail in a prior opinion of this Court. Fleischmann, 466 F. Supp 2d at 1023-25. In that proceeding, the Court granted Petitioners’ application for discovery, and required McDonald’s to produce documents located in the United States relating to: 1) McDonald’s decision to terminate Petitioners, or McDonald’s explanation of its decision to terminate Petitioners; 2) McDonald’s knowledge of, or approval of, the retention and work of RPN Consultoria, Comercio e Representacoes, Ltda. (“RPN”); and 3) McDonald’s policies or codes of conduct concerning the kinds of activities in which Fleischmann or Mortari are alleged to have engaged. Id. at 1033.

McDonald’s has produced approximately 1500 pages of documents, and confirmed that it produced all records in its possession that were required by the Court’s order. PX l.1 McDonald’s further provided a privilege log, claiming attorney-client and/or work-product privileges for 78 documents that it did not produce. RX I. Petitioners now contend that McDonald’s has violated the Court’s order by failing to produce all of its documents relating to the three categories outlined by the Court, by providing a privilege log that inadequately claims attorney-client and work-product privileges, and by producing many documents in redacted form without any explanation for the redactions. McDonald’s refutes each of Petitioners’ contentions and further asks that the Court, in its discretion, end the current proceedings. Oral arguments were held for the current motion to compel on June 21, 2007. The Court has since performed an in camera review of the documents appearing on McDonald’s privilege log that Petitioners believe are not protected.

[437]*437II. MCDONALD’S HAS COMPLIED WITH THIS COURT’S DISCOVERY ORDER.

Petitioners claim that McDonald’s failed to produce documents in its possession that relate to each of the three categories set forth in the Court’s order, and Petitioners ask that McDonald’s be compelled to produce those documents.

Petitioners argue that McDonald’s did not produce any documents that pertain to why Petitioners were fired, and very few documents produced even mention Petitioners’ termination. One document that was produced is a written communication from McDonald’s Senior Vice President and President of McDonald’s Latin America, to various senior executives of McDonald’s, informing them of Petitioners’ dismissal. That document explains that “we have proceeded with the decision we made yesterday____Tonight we terminated Marcel Fleischmann____And Eduardo Mortari ....” PX 2. Petitioners argue that this document demonstrates that there must have been documents and interviews that were considered prior to making the decision to terminate Petitioners’ employment, none of which were produced by McDonald’s. Similarly, Petitioners point to a group of emails between McDonald’s Human Resources department regarding placing restrictions on Petitioners’ stock options. PX 3. From the context of the emails, Petitioners argue that there must have been preceding emails that McDonald’s has not produced. Petitioners finally allege that “It is simply inconceivable that a decision was made to terminate the CEO of [McCal], and there are no documents reflecting the basis for this decision.” Pet’r Mot. at 8.

Petitioners argue that most of what McDonald’s produced regarding the second category was copies of documents that were produced in Brazil, rather than relevant documents from McDonald’s records. For example, Petitioners point to a 2004 “clearance memorandum” produced by McDonald’s which lists payments made to RPN. This document is apparently a copy of a document that Petitioners had filed in Brazil. Petitioners point out that no clearance memoranda were produced for relevant preceding or subsequent years, a fact that Petitioners find “unfathomable” considering the information that was produced. Petitioners also note that no documents were produced regarding Fleischmann’s authority, as CEO of McCal, to enter contracts for the payment and hiring of consultants.

In response to the third category of documents to be produced by McDonald’s, Petitioners consider it insufficient that McDonald’s merely presented copies of its generic “Standards of Business Conduct” and “McDonald’s Policy on Business Practices,” both of which are broad in scope with little relevance to the case at hand. Petitioners argue that “It is hard to believe that a worldwide company like McDonald’s would have no documents relating to policies or codes of conduct on such issues [that are relevant to this case.]” Pet’r Mot. at 11.

Despite Petitioners’ dissatisfaction with the documents produced, McDonald’s argues, and the Court agrees, that McDonald’s has complied with the Court’s discovery order. McDonald’s has stated that it completed its production pursuant to the Court’s order, and there is insufficient basis on which to question the good faith of that statement.

Petitioners admit that McDonald’s and McCal are separate legal entities, and that McDonald’s is merely a shareholder in McCal. In light of this distinction, McDonald’s explains that it has “produced documents of the type that one would expect McDonald’s to possess in the United States concerning the events that took place in Brazil.” Resp’t Br. at 4. Considering that the events giving rise to this dispute took place in Brazil, and that McCal, not McDonald’s, is the defendant in the Brazilian lawsuit, McCal may have far more documentation of greater relevance in Brazil than can be found with McDonald’s in the United States. McDonald’s is not required to retrieve relevant documents that are solely in McCal’s possession.

As explained above, based on documents produced by McDonald’s, as well as Petitioners’ own notions of what is conceivable for McDonald’s to possess, Petitioners argue that McDonald’s has discoverable documents [438]*438in its possession that have been withheld. The evidence and speculation on which Petitioners base their belief is simply insufficient to support their motion to compel. See, e.g., Retail Experts Consulting & Mgmt., Inc. v. Premium Retail Servs., Inc., 2006 WL 1719564, at *4 (N.D.Ill. June 15, 2006) (denying a motion to compel and holding that there was no reason to doubt plaintiffs representation that it had no documents responsive to discovery requests, despite defendant’s belief and evidence to the contrary); Cohn v. Taco Bell Corp., 1995 WL 519968, at *4 (N.D.Ill.1995) (holding that materials produced by the parties, and defendant’s assertion that plaintiffs were withholding discoverable documents, did not suggest that plaintiffs were in fact withholding relevant documents).

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Cite This Page — Counsel Stack

Bluebook (online)
244 F.R.D. 434, 2007 U.S. Dist. LEXIS 53799, 2007 WL 2137777, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fleischmann-v-mcdonalds-corp-ilnd-2007.