Project Posner

Lead opinion by POSNER

   Memorandum and Order

   RICHARD A. POSNER, UNITED STATES CIRCUIT JUDGE, (sitting by designation)

   Defendants have asked me to reconsider my order of October 25, 1989, compelling Defendant Jewel to certify to me that certain discovery items have been provided to the Plaintiffs. This order will clarify my previous order, and to the extent this clarification modifies the parties' expectations as to Jewel 's obligation, Jewel's motion is GRANTED.

   In my October 25, 1989, order, I required that Defendants certify to me that the following would be provided to Plaintiffs by October 30:

1. A listing of each class member including identifying information, a statement of the amount the individual was paid and the amount the individual should have been paid under the terms of the contract;

2. A listing of each class member who lost personal day benefits and the value of unused benefits that would have been received at termination had the unilateral benefit reductions not been implemented;

3. A listing of all class members who lost vacation benefits and the dollar amount the individual would have been entitled to for these lost benefits at the time of termination;

4. A list of all class 2 members who lost pension contributions as a result of the unilateral wage and benefit cuts and the value of those lost pension contributions.

   Each of these items is a component of the ultimate calculation of damages that both sides, it appears, intend eventually to make. The question raised by Defendant's motion is how much beyond the components necessary to calculate these individual items Defendants must supply in order to comply with my Order.

   It is apparent that much of the confusion surrounding this order to compel springs from an imprecision in the language used to describe the required items of production. I do not understand my order to be as extensive as either party has interpreted it, and offer the following to correct nay confusion.

   The damage, if any, that Plaintiffs seek to prove is the difference between the actual wages received by the class members and the amount that they would have been entitled to had Jewel compensated them under the original collective bargaining agreement. This difference comprises (1) wages, (2) vacation days, (3) personal days and (4) pension contributions. The ultimate damage calculation will aggregate the value of each of these four components 3 for each class member under both the "modified" and unmodified collective bargaining agreement, and finally reckon the difference between the two.

   We can distinguish then among three elements in this calculation: (a) the component data for each class member necessary in the calculation, (b) the formula required to make this calculation, and (c) the final calculation, using (a) and (b). The question raised by Defendant's motion to reconsider is which of these three elements it must provide Plaintiffs.

   Both parties agree that Jewel should not be required to provide (c). Both also agree, though not in precisely the same terms, that Jewel should provide (a). An initial dispute then concerns (b).

   If the burden of compiling or determining an interrogatory is the same for both plaintiff and defendant, then the burden should rest with the party requesting that information. Fed. R. Civ. P. 33(c). I assume the calculations here will be mechanically performed. The specific burden then is the coding of a logic necessary to compute the value of the components described in (a). The source information for that logic is, I assume, the collective bargaining agreement, available to both parties. Both 4 parties have computer consultants to aid in the calculation of damages, or so Defendants claim and Plaintiffs do not dispute. There is nothing to indicate one side is better able to translate the contract into a logic to calculate damages.

   The Plaintiffs argue, however, that since Defendants admit that they will eventually calculate the damage figures, therefore coding this translation logic, they should be compelled to do so immediately. But while the authority Plaintiffs rely upon does establish an exception to the "same burden" rule, requiring that the party being interrogated supply information it will itself compile, the issue here is when. Defendants admit that they will calculate the damage figure to "check Plaintiffs' damage calculations," but the question is whether they should be required to complete that calculation 3 months in advance of trial.

   Ideally, the parties should be able to stipulate to the formulas necessary to translate the components into damage figures, thereby avoiding the duplication of costs in deriving elements (b) and (c). However, I am not convinced that it is necessary at this time to force Defendants to complete and supply element (b), so long as element 5 (a) is fully and accurately provided. To the extent my Order of October 25, 1989, has been understood to require more than this, the Order is modified.

   I do believe, however, that the time has come when Defendants should completely and accurately supply the data described in element (a) above, namely, the components necessary for calculating the damages for each individual class member. Such data must be disaggregated, so that each component of damages can be attributed to each class member. For the purposes of clarity, therefore, my Order is modified as follows. On November 3, 1989, Defendants will certify to me that they have provided the following information to the Plaintiffs, in a machine readable form:

A logical record linking each class member and identifying information with, for the period February 26, 1984 to June 21, 1985:

1. wages actually paid the class member;

2. wage scale under the collective bargaining agreement for the class member;

3. hours actually worked, regular and overtime, by the class member;

4. seniority date of the class member;

5. job classification of the class member;

6. vacation days to which the class member was entitled;

7. vacation 6 days which the class member actually received;

8. personal days to which the class member was entitled;

9. personal days which the class member actually received;

10. amount or method to determine the total pension benefits lost by each class member.

   These appear to be all the components necessary to calculate the damages under the contract, and are properly items that Defendants should produce. Defendants are ordered to certify that these data have been provided by November 3, 1989.

   Finally, it appears that there should be little dispute as to the actual damage figures calculated by either party. Both parties are ordered to discuss possible stipulations as to the amount of damages owed each class member. The parties will report to me as to the possibility of such stipulation no later than December 15, 1989.