SYMBRIA, INC., et al., Plaintiffs, v. JOHN R. CALLEN, et al., Defendants Case No. 20 C 4084 United States District Court, N.D. Illinois, Eastern Division Signed August 02, 2021 Counsel Daniel Frank Lanciloti, Matthew D. Anderson, Matthew John O'Hara, Terrence J. Sheahan, Gia Fonte Colunga, Freeborn & Peters, LLP, Chicago, IL, Jason Paul Stearns, Freeborn & Peters LLP, Tampa, FL, for Plaintiffs. Garry L. Wills, Julia Lynn Mohan, Marc H. Kallish, Roetzel & Andress, LPA, Chicago, IL, for Defendants John R. Callen, MedRehab Alliance, LLC, MedRehab Alliance Interstate, LLC, Illinois Ancillary Services Network, LLC, Pearl Health Care Services, Inc., MedRehab Therapy Associates of Illinois, LLC, Joint & Neuro Rehab Associates, LLC, MedRehab Alliance Wisconsin, LLC. Kevin Michael O'Hagan, Paige Manley Canepari, Sean Gifford Rohan, O'Hagan Meyer, LLC, Chicago, IL, for Defendant United Methodist Homes & Services. Brian J. Williams, Cozen O'Connor, Matthew W. Casey, Thomas G. Griffin, Alla Cherkassky Galati, Walker Wilcox Matousek LLP, Chicago, IL, for Defendant Christos V. Dilmas. Michael John Scotti, III, Garry L. Wills, Julia Lynn Mohan, Marc H. Kallish, Roetzel & Andress LPA, Chicago, IL, for Defendant MedRehab Alliance Holdings, Inc. Thomas G. Griffin, Alla Cherkassky Galati, Matthew W. Casey, Walker Wilcox Matousek LLP, Chicago, IL, for Defendant Chicago Rehabilitation Collective PLLC. Colton David Long, Littler Mendelson, P.C., Chicago, IL, Jessica F. Pizzutelli, Pro Hac Vice, Littler Mendelson, P.C., Fairport, NY, for Defendant Christine M. Irvine. Marc H. Kallish, Roetzel & Andress, LPA, Chicago, IL, for Defendant Kathleen Rice. Weisman, M. David, United States Magistrate Judge ORDER *1 Plaintiffs, Symbria, Inc. (“Symbria”), Symbria Rehab, Inc., Alliance Rehab of Connecticut, LLC, Alliance HVA, L.L.C. (“Symbria and Affiliates”), GreatBanc Trust Company, in its capacity as Trustee of the Symbria, Inc. Employee Stock Ownership Trust (“GreatBanc”), and the Symbria, Inc. Employee Stock Ownership Trust move: (1) to compel the MedRehab defendants[1] and John Callen to answer certain interrogatories and produce documents responsive to certain requests to produce (“RFPs”) and defendant United Methodist Homes & Services (“UMHS”) to produce documents responsive to certain RFPs [ECF 258]; and (2) determine the sufficiency of UMHS' responses to plaintiffs' request for admission [ECF 263]. For the reasons set forth below, the Court grants in part, denies in part, and denies without prejudice in part the former motion [258] and grants in part, strikes as moot in part, and denies in part the latter motion [263]. Discussion In relevant part, Federal Rule of Civil Procedure 26 provides that “[p]arties 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.” Fed. R. Civ. P. 26(b)(1). Plaintiffs say the bulk of the interrogatories and RFPs directed to Callen, the MedRehab defendants, and UMHS are relevant to their claims that “these defendants were acting in concert and as a single-enterprise for the purpose of deliberately and fraudulently evading UMHS' contractual covenants in the Stock Purchase Agreement.” (ECF 258 at 1 (citing 3d Am. Compl., ECF 175 ¶¶ 185-90); see ECF 258-4, Nos. 1, 6-8; ECF 258-9, Nos. 1-5, ECF 258-13, Nos. 3, 5-11, 13-21, 52.) Defendants argue that plaintiffs have not alleged viable alter ego claims, and thus the information plaintiffs seek is not relevant to any claim in this suit. (ECF 276 at 3-7; ECF 278 at 5-9.) They have moved to dismiss the third amended complaint on this basis, and those motions are currently pending before the district judge. Because the outcome of this motion with respect to Nos. 3, 5-11, 13-21, and 52 of plaintiffs' second set of RFPs to Callan and the MedRehab defendants, Nos. 1, 6-8 of plaintiffs' second set of interrogatories to the MedRehab defendants, and Nos. 1-5 of plaintiffs' second set of RFPs to UMHS depends on the district judge's decision on the motions to dismiss, the Court denies that portion of the motion without prejudice to refiling, if appropriate, after the district judge has determined the viability of plaintiffs' claims. Plaintiffs also move to compel Callan and the MedRehab defendants to comply with RFPs 22 and 23, which seek “[a]ll PowerPoint presentations, or similar materials, regarding or relating to PDPM rules, regulations, guidance, or reimbursement, whether used for external marketing or for internal training or any other purpose,” and “[a]ll Documents [sic] company policies, procedures, training materials, and manuals of the Entity Defendants, including any draft copies and predecessor or template documents from which said policies and procedures were created,” respectively. (ECF 258-13, Nos. 22 & 23.) Defendants objected to both RFPs as being overbroad and unduly burdensome, and to RFP 23 as seeking proprietary information. (Id.) *2 The Court agrees with defendants that RFP 22 is not proportional to the needs of the case. Defendants assert, without contradiction by plaintiffs, that they have already produced thousands of documents identified by an ESI search protocol designed by plaintiffs that included the terms “PDPM,” “Symbria,” and “Alliance Rehab.” (ECF 276 at 8.) Given that fact, the burden and expense of requiring defendants to respond to RFP 22 because they “may ... have other PDPM-related PowerPoints or slide presentations” that “were not caught by the [original ESI] searches” (ECF 258 at 10) (emphasis added), outweighs its likely benefit. The situation is different for RFP 23. Plaintiffs argue that this request is appropriate because they discovered, solely through third-party discovery, that defendants “copied multiple Symbria policies and rebranded them as [defendants'] own policies” and “copied large portions of Symbria's Program Manager Orientation Manual” for their own use. (ECF 258 at 4-5.) Defendants argue that “there is no evidence that the[y] are or were in possession of Plaintiffs' policy manuals,” and the manuals, in any event, “are not proprietary ... [or] secret.” (ECF 276 at 9.) Neither argument is a basis for excusing defendants from complying with this request. Whether defendants have or had plaintiffs' policies is precisely what this request seeks to determine, and the extent, if any, to which the policies are confidential is one of the issues to be determined in this case. Thus, defendants must produce documents responsive to RFP 23. In their second motion, plaintiffs ask the Court to determine the sufficiency of defendant UMHS' responses to plaintiffs' request for admission Nos. 1, 6-13, 15-17, and 19-21. (See ECF 263 at 2.) UMHS says it has agreed to provide amended answers to Nos. 1, 11, 15, 16, 20, and 21 (ECF 277 at 2), mooting plaintiff's motion with respect to these requests. The requests that remain in dispute are Nos. 6-13, 17, and 19. Federal Rule of Civil Procedure 36 allows “[a] party [to] serve on any other party a written request to admit ... the truth of any matters within the scope of Rule 26(b)(1) relating to ... facts, the application of law to fact, or opinions about either” and “the genuineness of any described documents.” Fed. R. Civ. P. 36(a)(1). The party receiving requests for admission must: (1) object to the request; (2) admit the matter; (3) deny the matter; or (4) state that, after reasonable inquiry, “the information it knows or can readily obtain is insufficient to enable it to admit or deny.” Fed. R. Civ. P. 36(a)(4); Buchanan v. Chi. Transit Auth., No. 16-CV-4577, 2016 WL 7116591, at *3 (N.D. Ill. Dec. 7, 2016). Request Nos. 6 and 7 ask UMHS to admit that on October 31, 2015, neither UMHS nor any of its direct or indirect subsidiaries or affiliates competed with Symbria, Inc. or its subsidiaries “as that term is defined in the Stock Purchase Agreement.” (ECF 263-2, Nos. 6, 7.) UMHS objected on the grounds that the terms “compete,” “direct,” “indirect,” “subsidiaries,” and “affiliates” are vague and ambiguous and the requests seek admission of legal conclusions, not facts. (Id.) The Court overrules the objections. The meaning of the assertedly vague words is either set forth in the stock purchase agreement (see ECF 164-1, art. 1 & § 5.4) or can be ascertained by using “ ‘reason and common sense.’ ” Breuder v. Bd. of Trs. of Cmty. Coll. Dist. No. 502, No. 15 CV 9323, 2021 WL 1165089, at *4 (N.D. Ill. Mar. 25, 2021) (quoting Whole Woman's Health All. v. Hill, No. 1:18-cv-01904-SEB-MJD, 2020 WL 1028040, at *7 (S.D. Ind. Mar. 2, 2020)). Moreover, though requests to admit legal conclusions are improper, Rule 36(a)(1)(A) permits requests to admit “relating to the application of law to fact, or opinions about either.” These requests ask UMHS to admit whether it believes it competed with plaintiffs, as defined in the stock purchase agreement, on October 31, 2015, which is appropriate under the rule. *3 Request Nos. 8 and 9 ask UMHS to admit that “the Noncompetition Period, as that term is defined in the Stock Purchase Agreement, has not expired as of the day that you answer this Request” and “will not expire until Symbria, Inc. pays off all of the Subordinated Notes to the Sellers, as both of those terms are defined in the Stock Purchase Agreement.” (ECF 263-2, Nos. 8, 9.) UMHS objected on the grounds that the requests seek admission of legal conclusions. (Id.) Because these requests seek an admission regarding the application of law to facts, as opposed to a legal conclusion, the Court overrules the objections. See Katzman v. United States, No. 11 C 1441, 2012 WL 601771, at *1 (N.D. Ill. Feb. 23, 2012) (“While requests to admit are proper to establish facts or the application of law to facts, they may not be used to establish a legal conclusion.”). Request 10 asks UMHS to admit that it “did not consent to and acknowledge Symbria Inc.'s request in 2020 to refinance its senior debt.” (Id., No. 10.) Defendant objected on the grounds that the request is vague, seeks irrelevant information, and “does not provide sufficient information [for UMHS] ... to ascertain [its] truth.” (Id.) The Court overrules the vagueness and insufficiency objections because the request plainly refers to the allegations in paragraph 42 of the third amended complaint. (See 3d Am. Compl., ECF 175 ¶ 42.) However, because plaintiffs do not explain how UMHS' consent, or lack thereof, to plaintiffs' request to refinance their senior debt is relevant to any of their claims, the Court sustains the relevance objection. Request Nos. 12, and 13 ask UMHS to admit, respectively, that “E.D. Barnett signed the Rehabilitation Services Agreement between Alliance Rehab Inc. [now known as Symbria Rehab Inc.] and Wesley Place[2] ... on behalf of Wesley Place,” and that he was authorized to do so.[3] (ECF 263-2, Nos. 12, 13.) UMHS objected to No. 12 on the grounds of relevance and proportionality but admitted that “the name printed below the signature line contained in [the referenced contract] states ‘E.D. Barnett.’ ” (Id., No. 12.) UMHS objected to No. 13 on relevance grounds and because it seeks a legal conclusion. (Id., No. 13.) The Court overrules the objections. Plaintiffs allege that the contract requires Wesley Place to safeguard Symbria, Inc.'s confidential information. (3d Am. Compl., ECF 175 ¶ 141.) Thus, as plaintiff notes, UMHS' admission that it agreed to do so would rebut UMHS' contention that “Symbria has not taken reasonable measures to protect the confidentiality of trade secrets that Symbria shares with its clients.” (ECF 263 at 5.) Further, “[u]nder Illinois law, the existence and scope of an agency relationship are questions of fact,” not law. Rankow v. First Chi. Corp., 870 F.2d 356, 359 (7th Cir. 1989) (quotation omitted). UMHS must answer request Nos. 12 and 13. Request Nos. 17 and 19 ask UMHS to admit, respectively, that Michael Scotti sent an email to third parties on October 15, 2019, and received an email from an unidentified party on December 6, 2019. (ECF 263-2, Nos. 17, 19.) UMHS objected to request No. 17 on the grounds of relevance and attorney-client privilege and stated “the email address is not visible on [the referenced document,] ... no representative of UMHS is copied on [it] and therefore, UMHS denies” the request. (Id., No. 17.) UMHS objected to request No. 19 on the basis of attorney-client privilege and because it asks UMHS “to admit or deny facts specifically regarding a third party's receipt of a document.” (Id., No. 19.) Subject to those objections, UMHS said it “has insufficient knowledge to admit or deny” request 19. (Id.) The Court overrules the privilege objections because UMHS has not shown that the requests seek privileged information. See Pietro v. Marriott Senior Living Servs., Inc., 810 N.E.2d 217, 226 (Ill. App. Ct. 2004) (“The party claiming the attorney-client privilege bears the burden of presenting factual evidence that establishes [it].”). Whether these requests are relevant or seek information available to UMHS, however, depends on UMHS' answers to request Nos. 15 and 16, which UMHS has agreed to provide. (ECF 277 at 5; see ECF 263-2, Nos. 15, 16 (asking UMHS to admit that Michael Scotti was an attorney who represented it in disputes with Symbria, Inc. on October 15, and December 6, 2019, respectively).) Thus, the Court denies without prejudice plaintiff's motion with respect to request Nos. 17 and 19. Conclusion *4 For the reasons set forth above, the Court grants in part, denies in part, and denies without prejudice in part plaintiffs' motion to compel the MedRehab defendants and John Callen to answer certain interrogatories and produce documents and defendant UMHS to produce certain documents [ECF 258], and grants in part, strikes as moot in part, denies in part, and denies without prejudice in part plaintiffs' motion to determine the sufficiency of UMHS' responses to plaintiffs' requests for admission [ECF 263]. The Court orders defendants to: (1) produce to plaintiff documents responsive to RFP 23; and (2) provide plaintiff with amended answers to requests for admission Nos. 6-9, 12 and 13 (as well as amended answers to Nos. 1, 11, 15, 16, 20, and 21, as it previously agreed to do) within ten days of the date of this Order. Plaintiffs' motions to compel with respect to their second set of RFPs to Callan and the MedRehab defendants Nos. 3, 5-11, 13-21, and 52, their second set of interrogatories to the MedRehab defendants Nos. 1, and 6-8, plaintiffs' second set of RFPs to UMHS Nos. 1-5, and plaintiffs' requests for admission to UMHS Nos. 17 and 19 are denied without prejudice to refiling after the district court decides the motions to dismiss. SO ORDERED. Footnotes [1] The MedRehab defendants are: MedRehab Alliance Holdings, Inc., MedRehab Alliance, LLC, MedRehab Alliance Interstate, LLC, Illinois Ancillary Services Network, LLC (“IASN”), Pearl Health Care Services, Inc., Chicago Rehabilitation Collective PLLC, MedRehab Therapy Associates of Illinois, LLC, Joint & Neuro Rehab Associates, LLC, and MedRehab Alliance Wisconsin, LLC. [2] Plaintiff says Wesley Place “is owned and managed by UMHS.” (ECF 263 at 3 n.2.) [3] Plaintiff did not submit the contract with its motion to compel.