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In re Broiler Chicken Antitrust Litigation

United States District Court, N.D. Illinois, Eastern Division

July 26, 2018

IN RE BROILER CHICKEN ANTITRUST LITIGATION This Document Relates To All Actions

          MEMORANDUM OPINION AND ORDER

          Jeffrey T. Gilbert Magistrate Judge

         This matter is before the Court on Defendant Agri Stats Inc.'s Motion for Protective Order [ECF No. 894] as to requests for production of documents and electronically-stored information (“ESI”) served by the End User Consumer Plaintiffs (“EUCPs”). For the reasons discussed below, Agri Stats's Motion for Protective Order [ECF No. 894] is denied. The Court finds that Agri Stats's request for a protective order that would exempt it from performing EUCPs' proposed custodial searches of ESI for a significant portion of the time frame for discovery in this case is not justified. EUCPs and Agri Stats, however, shall continue to meet and confer in a continuing effort to accommodate Agri Stats's concerns about burden and cost without unduly impairing EUCPs' legitimate requests for discovery in this case. If the parties reach impasse on particular issues, they can bring those issues back to this Court or to the Special Master, depending upon the issue, consistent with this Memorandum Opinion and Order.

         I. BACKGROUND

         Beginning in September 2010, the United States' Department of Justice Antitrust Division (“DOJ”) embarked on an investigation of Agri Stats. That investigation concluded on October 3, 2102. During that investigation, Agri Stats says it searched for and produced to the DOJ documents and information like what the EUCPs are requesting. At issue in Agri Stats's Motion for Protective Order are the custodial searches it ran during the DOJ investigation. Agri Stats ran custodial searches for designated custodians for the period between September 17, 2008 through September 17, 2010, and it produced to the DOJ responsive documents it collected with those searches. The time frame for discovery in this case is much broader. It is from January 1, 2007 until September 2, 2016. See Order Regarding Production of Electronically Stored Information and Paper Documents (“ESI Protocol” or “Protocol”) [ECF No. 459], at ¶ V.A.[1]

         Agri Stats has agreed to produce in this case what it produced to the DOJ from custodial searches it conducted during the DOJ investigation. Agri Stats contends that it should not be required to run custodial searches of ESI created prior to October 3, 2012 (the date the DOJ investigation closed) for the 12 custodians whose data Agri Stats and the EUCPs have agreed will be subject to search in this case because it ran similar searches for most of those custodians during the DOJ investigation. Agri Stats argues that requiring it to re-run expensive searches with the EUCPs' search terms for those same custodians for a broader time period than it already ran is burdensome, disproportionate to the needs of this case, and unreasonable when viewed through the filter of Federal Rule of Civil Procedure 26(b)(2). Broadly speaking, Agri Stats asserts that the custodial searches it ran for the DOJ investigation, though more limited both in time frame and substance in terms of key words than what the EUCPs now are proposing, should be sufficient for the EUCPs' needs in this case. Agri Stats argues that a protective order should be entered so that it is not required to conduct any custodial searches for the agreed-upon custodians for emails or documents created prior to October 3, 2012.

         EUCPs disagree and maintain that Agri Stats should be required, like every other Defendant in this case, to perform the requested custodial searches for ESI with the EUCPs' proposed search terms for the time frame stated in the ESI Protocol. EUCPs essentially focus on two issues: the time frame for the custodial searches and the substance of those searches.

         With respect to time frame, EUCPs say, and Agri Stats does not refute, that Agri Stats only produced to the DOJ documents and ESI collected from custodial searches for the limited two-year period of September 17, 2008 to September 17, 2010. See EUCPs' Opposition [ECF No. 941], at 3. That means that the custodial searches Agri Stats ran for the DOJ investigation did not include documents created between January 1, 2007 to September 17, 2008 (a period of 20 months) and September 17, 2010 to October 3, 2012 (a period of 24 months). Therefore, according to EUCPs, if the Court were to enter the protective order requested by Agri Stats, that would leave more than three and a half years during the discovery period in this case for which Agri Stats would not be required to perform any custodial searches for ESI for the agreed-upon custodians.

         With respect to the substance of the searches, EUCPs argue that the custodial searches performed by Agri Stats during the DOJ investigation and the subsequent production of documents collected from those searches did not capture all the relevant documents and information EUCPs are seeking in this case. EUCPs contend that: (1) their requests for information are much broader than the DOJ's requests; (2) there are time periods critical to the allegations in this case that were not covered by the DOJ's investigation; (3) the DOJ was investigating a different antitrust conspiracy than is at the heart of the EUCPs' allegations in this case; and (4) any limitations on Agri Stats's obligations to fully comply with the EUCPs' requests would unduly prejudice Plaintiffs “by eliminating critical periods of the class period, categories of documents, types of documents excluded by search terms, and metadata identifying the custodians of documents.” EUCPs' Opposition [ECF No. 941], at 3.

         The Court agrees with EUCPs. Although Agri Stats conducted custodial searches for a limited two-year period in connection with the DOJ's investigation of possible agreements to exchange competitively sensitive price and cost information in the broiler, turkey, egg, swine, beef and dairy industries, that investigation focused on different conduct than is at the heart of EUCPs' allegations in this case, which cover a broader time period than was involved in the DOJ's investigation. The Court finds that a protective order is not warranted under these circumstances. Agri Stats should not be exempted from producing documents and ESI for the discovery time frame applicable to all other Defendants in this case. Nor should it be excused from querying its ESI using search terms that correlate with EUCPs' claims in this case because it performed similar but different custodial searches for a different (though overlapping) time period for the DOJ in connection with an investigation into different allegedly anti-competitive conduct. Accordingly, the Court concludes that Agri Stats must comply with the ESI Protocol, including the temporal scope of the legitimate discovery now sought by EUCPs. As also noted below, however, EUCPs and Agri Stats should continue the process they apparently have begun to address Agri Stats's concerns about burden and cost without unduly impairing EUCPs' legitimate requests for discovery in this case.

         II. LEGAL STANDARD

         Pursuant to Rule 26 of the Federal Rules of Civil Procedure, a district court has broad discretion in matters relating to discovery. Patterson v. Avery Dennison Corp., 281 F.3d 676 (7th Cir. 2002). Rule 26 permits the discovery of 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). When determining the scope of discovery, Rule 26(b)(1) requires consideration of:

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 benefit.

Id. Rule 26(b)(1) also recognizes that information within the scope of discovery does not need to be admissible at trial. Id. Nevertheless, despite the strong public policy in favor of disclosure of relevant materials, the district court also has broad authority to enter a protective order to limit discovery “for good cause shown . . . to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Fed.R.Civ.P. 26(c)(1).

         Rule 26 now also includes specific analytical filters applicable to the discovery of ESI. A court may impose limits on discovery of ESI if a party shows that it is “not reasonably accessible because of undue burden or cost.” Fed.R.Civ.P. 26(b)(2)(B). Once a party makes that showing, a court still may allow the discovery to proceed if the requesting party shows good cause, but the discovery nevertheless may be limited if it is unreasonably cumulative or duplicative, can be obtained from some other source that is more convenient, less burdensome, or less expensive, the party seeking the discovery has had ample opportunity to obtain it, or it is not relevant or is otherwise disproportional to the needs of the case within the meaning of Rule 26(b)(1). Fed.R.Civ.P. 26(b)(2)(C). The Court finds that consideration of all these factors weighs in favor of EUCPs and against Agri Stats in connection with Agri Stats's Motion for Protective Order [ECF No. 894].

         III. ANALYSIS

         A. Agri Stats Has Not Made a Threshold Showing that the Information EUCPs Are Seeking Is Not Reasonably Accessible Because of Undue Burden or Cost

         As Federal Rule 26(b)(2)(B) directs, a court may impose limits on discovery of ESI if a party shows that it is “not reasonably accessible because of undue burden or cost.” Fed.R.Civ.P. 26(b)(2)(B). Agri Stats does not squarely address the requirements of Rule 26(b)(2)(B) or the specific analytical framework applicable to the discovery of ESI under the Federal Rules. Rather, it speaks in broad generalities about the basic unfairness of EUCPs' request that it “redo, ” in Agri Stats's parlance, custodial searches it already has run and about the fact that it is not getting “credit” for the $1.3 million it spent in connection with the DOJ's investigation. Perhaps because of its refusal to engage more directly with the analytical framework of Rule 26(b)(2), Agri Stats has not done a good job of identifying or quantifying the burden in either time or cost of doing what EUCPs want it to do. To the extent the basic thrust of Agri Stats's argument is that EUCPs should be satisfied with what it already has produced to the DOJ because most of what EUCPs are looking for probably is in that production ...


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