LINDA VERBOOM CURRY and ALLEN CHEUNG, Plaintiffs, v. THE BOEING COMPANY, Defendant No. 20 CV 3088 United States District Court, N.D. Illinois, Eastern Division, EASTERN DIVISION Filed: March 25, 2024 Tharp Jr., John J., United States District Judge ORDER *1 For the reasons set forth in the Statement below, the defendant's motion for an order to show cause and to hold plaintiffs’ counsel in contempt [165] is denied. STATEMENT I. Background Opposing counsel in this case are not strangers. This case is one of several “toxic air” cases brought by various plaintiffs, represented by the law firm Littlepage Booth, against defendant the Boeing Company, represented by Perkins Coie LLP and Winston & Strawn LLP, for alleged injuries arising from exposure to contaminated air in the passenger cabin of certain Boeing aircraft models. Notice of Removal ¶ 3, ECF No. 2.[1] In addition to representing the plaintiffs in the present litigation, Littlepage Booth “concurrently represented plaintiffs bringing similar claims against Boeing in cases that were pending in this District, in the Western District of Washington, and in Illinois state court.” Mot. for Rule to Show Cause 3, ECF No. 165. On May 7, 2021, the Court entered an Amended Protective Order in this case.[2] There are two key provisions at issue for the purposes of this motion. The first concerns the destruction or return of confidential materials provided during discovery after the termination of the litigation. Paragraph 16(b) provides that, Within sixty-three days after dismissal or entry of final judgment not subject to further appeal, all Confidential Information and/or Export Controlled Information and documents marked “CONFIDENTIAL” and/or “EXPORT CONTROLLED INFORMATION” under this Order, including copies as defined in ¶ 3(a), shall be returned to the producing party unless ... (4) the parties (or third parties) have agreed that said Confidential Information and/or Export Controlled Information is, or will be, deemed produced to any attorney of record in this matter in response to a discovery request in another action against Boeing where that attorney is also an attorney of record. Protective Order ¶ 16(b)(4), ECF No. 70. The next relevant section, in the paragraph below, concerns the ability of the parties to retain attorney work product created in the course of the litigation, specifying that, Notwithstanding the above requirements to return or destroy documents, counsel may retain (1) attorney work product, including an index that refers or relates to designated Confidential Information and/or Export Controlled Information, so long as that work product does not duplicate verbatim substantial portions of Confidential Information and/or Export Controlled Information and (2) one complete set of all documents filed with the Court including those filed under seal. An attorney may use his or her work product in subsequent litigation, provided that its use does not disclose or use Confidential Information and/or Export Controlled Information. Id. at ¶ 16(c). Boeing's motion to hold plaintiffs’ counsel, Littlepage Booth, in civil contempt turns on the meaning of these two paragraphs. *2 On April 5, 2023, the parties filed a joint stipulation of dismissal in this case. Stipulation of Dismissal, ECF No. 162. This Court acknowledged the dismissal the following day on April 6, 2023. Order, ECF No. 163. This case was one of several in various federal and state courts that the parties settled “[c]ontemporaneously.” Resp. 5, ECF No. 169. Less than a month later, on May 4, 2023, defense counsel emailed plaintiffs’ counsel “to request certification of compliance with protective order and settlement agreement obligations to return or destroy Confidential and/or Export-Controlled information produced by The Boeing Company.” Email Correspondence Ex. F, at 2, ECF No. 165. Defense counsel also requested that opposing counsel destroy their “Boeing Master Reference Materials” list as it “quote[s] extensively from Confidential” documents. Id. The master reference list “is a lengthy document created over many years of litigation,” summarizing the key evidence and documents at issue, and, according to plaintiffs’ counsel, is constantly changing as counsel “continuously tinkers with and adds, deletes or edits information almost every week.” Resp. 12, ECF No. 169. Plaintiffs’ counsel did not respond to defense counsel's request until May 31, shortly after Littlepage Booth filed another complaint against Boeing in Virginia state court on May 25 in Larson et al v. The Boeing Company. Email Correspondence Ex. J, at 2, ECF No. 165. Boeing removed the Larson case to the Eastern District of Virginia. Mot. for Rule to Show Cause 5, ECF No. 165. The federal court later remanded the case back to Arlington County Circuit Court, where it is currently pending. Order, 23-cv-813, ECF No. 79 (E.D. Va.). In a May 31 response to defense counsel's request, plaintiffs’ counsel stated that they intended to “retain the documents and materials produced by Boeing in the prior contaminated cabin air litigation for use” in the Larson case, for the sake of judicial economy. Email Correspondence Ex. J, at 2, ECF No. 165. Plaintiffs’ counsel included this request to retain previously produced confidential documents in their initial requests for production from Boeing in the Larson case, also filed on May 31.[3] Pls. Reqs. for Production Ex. 5, at 1, ECF No. 169. In an emailed response, defense counsel noted their objection to Littlepage Booth's intent to retain documents for use in the Larson case and set a deadline of July 17 for compliance with the Protective Order. Id. at 1. The parties met and conferred about the issue on July 19 where, in defense counsel's version, plaintiffs’ counsel stated “that a court would need to order her” to return or destroy Boeing's documents “in light of tight discovery deadlines set” in the Larson case. Mot. for Rule to Show Cause 5, ECF No. 165; Larson Pretrial Scheduling Order Ex. 7, ECF No. 169 (setting a discovery deadline of November 10, 2023 in the Larson case). *3 The parties had a subsequent discussion on August 1. Plaintiffs’ counsel sent an email memorializing the conversation based on her own impressions, stating that Boeing agreed “to allow Plaintiffs to retain the generic corporate documents produced in the prior toxic cabin air cases.” Email Correspondence Ex. 10, at 2, ECF No. 169. Defense counsel rejected plaintiffs’ counsel's interpretation of the conversation: “Boeing has explicitly not agreed to allow Plaintiffs here to ‘retain’ any productions Boeing made in other cases.” Email Correspondence Ex. 11, at 1, ECF No. 169. Defense counsel shortly followed up “to demand, one last time, that [plaintiffs’ counsel] comply with its obligations.” Email Correspondence Ex. 2, at 2, ECF No. 170. Further responding, the plaintiffs’ counsel professed confusion at Boeing's refusal to agree to the retention of previously produced discovery: I am struggling to understand what is the advantage or benefit that Boeing seeks by its demand that we destroy or return the documents produced in the prior toxic cabin air cases and then, per the email below, Boeing at the same time is agreeing to return those same documents to the Larson Plaintiffs? Can someone explain why–other than to delay the prosecution of the Larson case and increase costs and inefficiencies for the Plaintiff–Boeing is insisting, for the very first time in eight years, that the documents be destroyed or returned when Boeing has committed to providing those same documents to us again? Email Correspondence Ex. 12, at 1, ECF No. 169. On August 8, defense counsel declined to respond to plaintiffs’ counsel's speculation regarding their alleged motivations but agreed to “to meet and confer a final time in the hope that [plaintiffs’ counsel] will agree to comply ... without court intervention.” Email Correspondence Ex. 2, at 1, ECF No. 170. Defense counsel also indicated their intent to file a motion for court intervention in this case if plaintiffs’ counsel refused to comply. Id. The conversation apparently proved unsuccessful because the defendant filed this motion on August 17. Mot. for Rule to Show Cause, ECF No. 165. On August 18, one day after defense counsel filed this motion, the Larson court held a hearing to address the parties’ discovery disputes. Although the magistrate judge noted that he understood plaintiffs’ counsel's desire to conduct discovery expeditiously and not waste additional time, “[e]very case has to stand on its own” and he saw the request to retain previously produced discovery as “a little unusual.” Larson Mot. Hr'g Tr. Ex. 3, at 6:18-19, 11:7, ECF No. 170. Any agreement between the parties regarding retention and reproduction of discovery would “help things in the long term,” but ultimately the court limited its consideration of the discovery issues to the case currently pending before it, regardless of the history between the parties. Id. at 12:12-15. Immediately following the hearing in Larson and Boeing's filing of the motion for rule to show cause in this case, plaintiffs’ counsel sent an email to defense counsel, confirming that “[b]ased upon the Court's ruling today in Larson v. Boeing, we have begun the process of removing all Boeing documents from our secure server. Our server says that it will take 34 hours to finalize the transfer to a separate hard-drive for return to Boeing.” Email Correspondence Ex. 14, at 1, ECF No. 169. The same day defense counsel sent back “documents previously produced by Boeing in the case Woods v. The Boeing Company”—seemingly the same documents that plaintiffs’ counsel previously sought to retain through mutual agreement of the parties. Boeing Production Volume Letter Ex. 15, at 1, ECF No. 169. II. Motion to Hold Plaintiffs’ Counsel in Civil Contempt *4 Boeing filed a motion for an order to show cause, which technically requests “a preliminary order directing the alleged contemnor to show cause why the court should not find him in contempt.” United States S.E.C. v. Hyatt, 621 F.3d 687, 696 (7th Cir. 2010). In a case like this one, however, where the parties have fully briefed the issue and it would not prejudice the parties, “a request for a show cause order usually will be entertained and treated as a motion,” and may be granted or denied on the merits. 5 WRIGHT & MILLER, FEDERAL PRACTICE AND PROCEDURE § 1195 (3d ed. 2004). To prevail on its request to hold plaintiffs’ counsel in civil contempt, the defendant, must establish by clear and convincing evidence that (1) a court order sets forth an unambiguous command; (2) the alleged contemnor violated that command; (3) the violation was significant, meaning the alleged contemnor did not substantially comply with the order; and (4) the alleged contemnor failed to make a reasonable and diligent effort to comply. Hyatt, 621 F.3d at 692. “Civil contempt is a ‘severe remedy’ that ‘should not be resorted to where there is a fair ground of doubt as to the wrongfulness of the defendant's conduct.’ ” Pressure Specialist, Inc. v. Next Gen Mfg. Inc., 469 F. Supp. 3d 863, 868 (N.D. Ill. 2020) (emphasis omitted) (quoting Taggart v. Lorenzen, 139 S. Ct. 1795, 1801-02 (2019)). “If a civil contempt order is coercive in nature, the general rule is that it is mooted when the proceeding out of which it arises terminates,” but “if the need for the contempt order survives the termination of the underlying proceeding, such as when a party must be compensated for costs and injuries, then the contempt order does not become moot.” Ohr ex rel. Nat'l Lab. Rels. Bd. v. Latino Exp., Inc., 776 F.3d 469, 479-80 (7th Cir. 2015). A district court must “resolve relevant factual disputes—allowing discovery and holding an evidentiary hearing if necessary—in a civil contempt proceeding.” Tranzact Techs., Inc. v. 1Source Worldsite, 406 F.3d 851, 855 (7th Cir. 2005). A. The Destruction or Return of Confidential Documents Boeing does not seek attorneys’ fees or expenses, requesting instead that this Court penalize plaintiffs’ counsel with “a reasonable fine or sanction payable to the Court for the Court's time.” Mot. for Rule to Show Cause 11-12, ECF No. 165. Though the Court appreciates this solicitude, it declines to enter such an order here. As the defendant seeks only an order directing plaintiffs’ counsel to comply with the Protective Order, the Court denies this part of the defendant's motion as moot. Plaintiff immediately complied with the Larson court's order and began destruction of Boeing's documents the day after the defendant filed this motion. Email Correspondence Ex. 14, at 1, ECF No. 169; Letter re Destruction & Return of Boeing Documents Ex. 16, at 1, ECF No. 169. Just as “compliance with an order of civil contempt makes the order moot,” compliance with the moving party's original demand moots the motion to hold the opposing party in civil contempt where the moving party does not request monetary sanctions for its time and expense. Szabo v. U.S. Marine Corp., 819 F.2d 714, 716 (7th Cir. 1987). Disregarding the mootness issue, Boeing must prove that Littlepage Booth “failed to make a reasonable and diligent effort to comply” with the terms of the Protective Order. Hyatt, 621 F.3d at 692. No such showing has been made here. To the contrary, it appears that defense counsel engaged with Littlepage Booth's efforts to reach a mutual agreement permitting retention of the confidential documents for subsequent litigation, as outlined in Paragraph 16(b)(4) of the Protective Order. Am. Protective Order, ECF No. 70. See Bourgal v. Lakewood Haulage Inc., 827 F. Supp. 126 (E.D.N.Y. 1993) (denying contempt motion where, with one exception, “the evidence submitted to this court demonstrates that the parties in this case have attempted to the best of their abilities to work out this dispute in a reasonable and amicable fashion.”). *5 Plaintiffs’ counsel was required, per the terms of the Protective Order, to turn over or destroy all confidential information by June 8, 2023, when the sixty-three-day period in the order expired. Am. Protective Order ¶ 16(b), ECF No. 70. The parties were still engaged in discussions about this issue on day sixty-three, however, and it would make no sense to preclude the parties from continuing to try to resolve the dispute for the sake of enforcing that arbitrary deadline. (Indeed, the Protective Order expressly endorses this common-sense notion by allowing the parties to extend the ten-day meet and confer deadline by agreement.) Id. ¶ 11(a). Based upon the Court's review of the correspondence between the parties in this matter, it appears that the final request for compliance was sent by defense counsel on August 8, a little over a week before counsel filed this motion on August 17. Email Correspondence Ex. 2, at 1, ECF No. 170. In the interim period, both parties filed several motions on the Larson docket and requested a hearing for August 18, where the Virginia district court eventually ordered Littlepage Booth to return or destroy the confidential documents. Based on this record, it is not evident that plaintiffs’ counsel engaged in a flagrant violation or even a “crafty feint[ ]” to avoid compliance with the Protective Order. Nat'l Lab. Rels. Bd. v. Neises Constr. Corp., 62 F.4th 1040, 1053 (7th Cir. 2023). Defense counsel also claims that the Larson complaint violates the Protective Order because it contains quotes from confidential documents. Mot. for Rule to Show Cause 5, ECF No. 165. Specifically, Paragraph 26 of the complaint includes a quote of a Boeing employee taken from a confidential document. Larson et al v. The Boeing Company Complaint Ex. I, ¶ 26, ECF No. 165. The motion seeks no relief for that purported violation of the Protective Order, however, but only the return or destruction of confidential documents. As stated above, an order granting that relief is no longer necessary. B. The Master Reference Sheet The second issue is the master reference sheet, which consists of some two hundred and thirty-eight pages of plaintiffs’ counsel's summary and analysis of the relevant evidence and facts. Resp. to Mot. for Protective Order Ex. 2, ECF No. 106. According to the terms of the Protective Order, counsel may preserve, attorney work product, including an index that refers or relates to designated Confidential Information and/or Export Controlled Information, so long as that work product does not duplicate verbatim substantial portions of Confidential Information ... An attorney may use his or her work product in subsequent litigation, provided that its use does not disclose or use Confidential Information and/or Export Controlled Information. Am. Protective Order ¶ 16(c), ECF No. 70. Boeing first argues that the master reference sheet is not attorney work product because plaintiffs’ counsel created the document with the assistance of experts and previously disclosed the document as an expert opinion in another case. Reply 7, ECF No. 171. That argument misses the mark in at least two ways. First, that an attorney consults with an expert does not remove the resulting analysis from the sphere of work product. Appleton Papers, Inc. v. E.P.A., 702 F.3d 1018, 1024 (7th Cir. 2012) (“[A] consultant's work will, by definition, be work product because the party uses the consultant ‘in anticipation of litigation.’ ”) (citing Fed. R. Civ. P. 26(b)(4)(D)). And second, Boeing misconstrues the document it cites for the proposition that plaintiffs’ counsel disclosed the master reference sheet as expert opinion; that document only acknowledged that the expert had reviewed some materials that were cited in the master reference sheet—not that the document set forth his opinions. Pls. Resp. to Interrogs. in Woods et al v. The Boeing Company Ex. G, ECF No. 165 (noting that various plaintiffs’ experts “reviewed and relied upon” materials in the master reference sheet in formulating their opinions). Boeing's assertion that plaintiffs characterized the master reference sheet as a draft expert report is similarly infirm; the stipulation invoked by the plaintiffs expressly extended work product protection to “all communications between counsel and Retained Experts.” Expert Disc. Stipulation in Woods et al v. The Boeing Company Ex. 17, at ¶ 4, ECF No. 169.[4] *6 As plaintiffs’ counsel describes the document, the master reference sheet is the compilation of counsel's efforts to review over “two million pages of produced materials.” Resp. 13, ECF No. 169. With the help of experts, counsel narrowed down the discovery and compiled this document as a synopsis to aid in subsequent litigation. Id. The determination of what facts may prove most relevant requires an attorney to formulate mental impressions and legal theories about the evidence. See Sporck v. Peil, 759 F.2d 312, 315 (3d Cir. 1985) (“Because identification of the documents as a group will reveal defense counsel's selection process, and thus his mental impressions, petitioner argues that identification of the documents as a group must be prevented to protect defense counsel's work product. We agree.”); see also In re Yasmin & Yaz (Drospirenone) Mktg., Sales Pracs. & Relevant Prod. Liab. Litig., MDL No. 2100, 2011 WL 2580764 at *1 (S.D. Ill. June 29, 2011) (finding that the Third Circuit's holding in Sporck v. Peil accords with the Seventh Circuit's understanding of attorney work product doctrine). Contrary to the defendant's assertions, the reference sheet is attorney work product and therefore falls under paragraph 16(c) of the Protective Order. Even if the master reference sheet qualifies as attorney work product, Boeing argues that it must be destroyed because it “uses” Boeing's confidential materials and contains substantial verbatim quotes from those materials. Reply 7, ECF No. 171; Mot. for Rule to Show Cause 10, ECF No. 165. First, defense counsel misconstrues the final sentence of paragraph 16(c). Reply 7, ECF No. 171. Counsel are not prohibited from using confidential materials to create attorney work product—they are prohibited from using attorney work product in a manner that results in the disclosure of confidential information. Am. Protective Order ¶ 16(c), ECF No. 70. Boeing's reading of this provision—simultaneously allowing and prohibiting the use of attorney work product referring or relating to confidential information—makes no sense. Second, upon further review of the master reference sheet filed on the docket in this case, plaintiffs’ counsel does quote from confidential documents throughout the document. Resp. to Mot. for Protective Order Ex. 2, ECF No. 106. Even so, the quotations are typically short in length and are consistently interspersed with counsel's original summary and analysis of the evidence. That is consistent with the Protective Order's restriction on verbatim duplication of substantial portions of confidential information. The phrase “substantial portions” contemplates an assessment of the degree of duplication on a document-by-document, not an aggregate, basis. Therefore, the Court declines to grant Boeing's request to order that plaintiffs’ counsel destroy the master reference sheet, except for a single copy. * * * As a final note, although the equities don't govern here, the Court sees nothing untoward in the plaintiffs’ efforts to avoid a seemingly—Boeing offers no substantive explanation for its opposition to the plaintiffs’ request—pointless exchange of the same documents and the needless duplication of work it would entail. Those efforts were consistent with the foundational duty of all parties to “secure the just, speedy, and inexpensive determination of every action and proceeding.” Fed. R. Civ. P. 1. The Court is less confident that Boeing's request for a finding of contempt is animated by fidelity to that principle. The defendant's motion for an order to show cause and hold plaintiffs’ counsel in contempt of court [165] is denied. Footnotes [1] Unless otherwise stated, all record citations refer to this civil lawsuit, 20-cv-3088. [2] This case was originally pending before Judge Gary S. Feinerman before it was transferred to the undersigned judge on December 28, 2022. Order, ECF No. 147. [3] Plaintiffs’ requests for production in Larson included the following language: NOTE: If responsive documents were previously produced in the Woods/Escobedo, Weiland, Milton, Curry, Bush and/or Benussi cases against Boeing, Defendant need not reproduce such materials. For judicial economy, Plaintiff will retain the previously produced documents from the above-identified contaminated cabin air cases instead of requiring Boeing to reproduce such materials. Pls. Reqs. for Production Ex. 5, at 1, ECF No. 169. [4] Boeing does not argue that Littlepage Booth waived the attorney work product privilege in any other fashion.