Case: 1:16-cv-08637 Document #: 4099 Filed: 12/11/20 Page 1 of 7 PageID #:276211
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
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`Case No. 16-cv-8637
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`Judge Thomas M. Durkin
`Magistrate Judge Jeffrey T. Gilbert
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`____________________________________
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`IN RE:
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`BROILER CHICKEN ANTITRUST )
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`LITIGATION
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`This Document Relates to All Actions
`____________________________________)
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`UNITED STATES’ UNOPPOSED MOTION
`TO AMEND THE AGREED CONFIDENTIALITY ORDER
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`The United States respectfully files this unopposed motion to amend the Agreed
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`Confidentiality Order [Dkt. 202] for the purpose of enabling the United States to use
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`and disclose materials in related criminal litigation. The proposed amendment would
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`establish a meet-and-confer process for written and document discovery materials that
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`the United States has received because it is a party to this action. This process would
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`need to be completed prior to the materials being disclosed in criminal litigation. This
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`approach strikes a reasonable balance between affording the United States flexibility for
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`its criminal litigation including to address discovery issues that may arise, and
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`protecting producing parties’ confidentiality expectations. As a result of conferring with
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`the other parties to this action, this motion is unopposed.1
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`1 The United States is not filing a notice of presentment and not providing courtesy copies of this motion
`because the Court has suspended the operation of those court rules. See Eighth Amended General Order
`20-0012 at ¶¶ 5-6 (Nov. 13, 2020).
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
`
`
`Case No. 16-cv-8637
`
`Judge Thomas M. Durkin
`Magistrate Judge Jeffrey T. Gilbert
`
`____________________________________
`
`
`
`
`
`
`)
`IN RE:
`
`
`
`
`)
`
`
`
`
`
`
`)
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`BROILER CHICKEN ANTITRUST )
`
`LITIGATION
`
`
`)
`
`
`
`
`
`
`)
`)
`This Document Relates to All Actions
`____________________________________)
`
`
`
`UNITED STATES’ UNOPPOSED MOTION
`TO AMEND THE AGREED CONFIDENTIALITY ORDER
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`
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`The United States respectfully files this unopposed motion to amend the Agreed
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`Confidentiality Order [Dkt. 202] for the purpose of enabling the United States to use
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`and disclose materials in related criminal litigation. The proposed amendment would
`
`establish a meet-and-confer process for written and document discovery materials that
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`the United States has received because it is a party to this action. This process would
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`need to be completed prior to the materials being disclosed in criminal litigation. This
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`approach strikes a reasonable balance between affording the United States flexibility for
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`its criminal litigation including to address discovery issues that may arise, and
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`protecting producing parties’ confidentiality expectations. As a result of conferring with
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`the other parties to this action, this motion is unopposed.1
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`1 The United States is not filing a notice of presentment and not providing courtesy copies of this motion
`because the Court has suspended the operation of those court rules. See Eighth Amended General Order
`20-0012 at ¶¶ 5-6 (Nov. 13, 2020).
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`Case: 1:16-cv-08637 Document #: 4099 Filed: 12/11/20 Page 2 of 7 PageID #:276212
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`A. Background
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`In June 2019, the United States moved to intervene in this action, and sought a
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`limited stay of discovery on the defendants. The Government sought to intervene in
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`order to protect a grand jury investigation into the broiler chickens industry. United
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`States’ Mot. To Intervene and Stay Discovery [Dkt. 2268] at 1. The Court granted the
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`motion and stayed discovery until late September [Dkt. 2302], and later, extended the
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`stay to the end of March 2020 [Dkt. 3356].
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`The investigation to date has resulted in the indictment by a grand jury
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`empaneled in the District of Colorado of ten individuals for their roles in a conspiracy
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`to restrain trade in violation of Section 1 of the Sherman Act, 15 U.S.C. § 1. See
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`Superseding Indictment, United States v. Penn et al., Criminal Action No.: 20-cr-00152-
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`PAB (D. Col. Oct. 6, 2020). The defendants have pleaded not guilty; trial is scheduled to
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`commence on August 2, 2021, in Denver.
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`The Government possesses discovery materials that it obtained because it is a
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`party to this civil action. The Agreed Confidentiality Order prohibits the Government
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`from using or disclosing in a criminal matter any of the materials designated
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`Confidential or Highly Confidential that it obtained in this action. The Agreed
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`Confidentiality Order protects the parties’ Confidential and Highly Confidential
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`Information from disclosure “for any purpose whatsoever other than the prosecution or
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`defense of claims in, or the settlement of, this litigation.” Agreed Confidentiality Order,
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`¶ 6.a. A significant portion of the materials exchanged in discovery contain information
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`designated as Confidential or Highly Confidential. Because the Government may seek
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`Case: 1:16-cv-08637 Document #: 4099 Filed: 12/11/20 Page 3 of 7 PageID #:276213
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`to disclose and use some of these materials in the criminal litigation, including to
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`address discovery issues that may arise, but is presently prohibited from doing so by
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`operation of the Agreed Confidentiality Order, the Government now seeks an
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`amendment to the Order that would establish a way in which to disclose and use such
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`materials.
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`B. The Proposed Amendment.
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`The Government proposes to amend the Agreed Confidentiality Order to enable
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`certain materials in the Government’s possession to be used in the Government’s
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`prosecution of persons charged as a result of the Government’s investigation into the
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`broilers chicken industry. For purposes of this proposed amendment, the materials that
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`the Government seeks to qualify for disclosure and use in the criminal cases are written
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`discovery including answers to interrogatories and responses to RFAs, documents or
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`data productions, or explanatory materials.
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`The Government’s proposed amendment establishes a procedure for parties that
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`produced materials designated Confidential or Highly Confidential to be notified of
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`potential disclosure or use of the materials in a criminal case. The proposed amendment
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`requires notification to the producing party of the specific material it seeks to disclose or
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`use in the criminal case. The producing party would then have five business days in
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`which to respond. If the producing party provides an objection within the time allotted,
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`the Government and the producing party would conduct a meet-and-confer to address
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`the objection. If the objection is not resolved, the Government may file a motion, with
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`leave granted to file the motion papers under seal.
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`Case: 1:16-cv-08637 Document #: 4099 Filed: 12/11/20 Page 4 of 7 PageID #:276214
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`C. Legal Standard
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`A court may modify a protective order, such as the Agreed Confidentiality
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`Order, upon a showing of good cause. See Heraeus Kulzer, GmbH v. Biomet, Inc., 881 F.3d
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`550, 556 (7th Cir. 2018). When assessing whether there is good cause to modify a
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`protective order “the court must weigh that party’s need for modification against the
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`other party’s need for protection, and ought to factor in the availability of alternatives to
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`better achieve both sides’ goals.” Murata Mfg. Co., Ltd. v. Bel Fuse, Inc., 234 F.R.D. 175,
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`180 (N.D. Ill. 2006).
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`D. Good cause exists.
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`Good cause exists because the Government may seek to use and disclose
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`materials in its criminal litigation that the Agreed Confidentiality Order presently
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`prohibits from being used or disclosed.
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`The good cause consideration implies a changed circumstance from the time that
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`the protective order was initially entered. See In re Application of Heraeus Kulzer GmbH,
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`3:09-CV-530 RLM-MGG, 2017 WL 214322, at *3 (N.D. Ind. Jan. 18, 2017). The pendency
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`of this criminal litigation is a changed circumstance from what prevailed at the time that
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`the Agreed Confidentiality Order was entered. At the time that the Agreed
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`Confidentiality Order was entered, in November 2016, the Government was not a party
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`to this litigation, and the criminal litigation did not exist.
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`Given this good cause, modification of a confidentiality order should occur
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`unless the modification would prejudice the substantial rights of a party opposing
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`modification. Wilk v. Am. Med. Ass’n, 635 F.2d 1295, 1299 (7th Cir. 1980)(permitting
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`Case: 1:16-cv-08637 Document #: 4099 Filed: 12/11/20 Page 5 of 7 PageID #:276215
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`modification where good cause of avoiding duplicate discovery was established).
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`Modification prejudices substantial rights when it undermines a party’s reliance
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`interest. See Griffith v. Univ. Hosp., L.L.C., 249 F.3d 658, 662–63 (7th Cir. 2001) (denying
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`modification of confidentiality order on eve of settlement because modification would
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`undermine reliance on order).
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`The Government’s proposed amendment avoids prejudice altogether, by
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`establishing a notice-and-opportunity-to-be-heard process addressing confidentiality
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`issues ahead of use and disclosure in criminal litigation. This process preserves the
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`parties’ reliance interests in their confidentiality designations and the resulting
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`confidentiality protections that the Agreed Confidentiality Order affords. These
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`interests are preserved because the proposed modification: (1) contains a notice and
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`meet-and-confer requirement, with judicial review for any unresolved disputes; (2)
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`requires the Government to identify specific materials it seeks to use or disclose in its
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`criminal litigation, rather than a blanket license to use all materials it has received from
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`this civil action; and (3) the use or disclosure of any material in the criminal litigation
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`will occur subject to the protective order entered in the criminal litigation, see Second
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`Amended Protective Order, United States v. Penn, Criminal Action No.: 20-cr-00152-PAB
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`(D. Col. Nov. 10, 2020). The criminal protective order states, in relevant part, that “[a]ll
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`discovery materials produced by the government are being produced [to defense
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`counsel] . . . only for the purpose of representing their client in this criminal case and
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`must be used solely for the purposes of conducting pretrial, trial, and appellate
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`proceedings in this case and for no other purposes.” Id. at ¶ 1. Additionally, the
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`Case: 1:16-cv-08637 Document #: 4099 Filed: 12/11/20 Page 6 of 7 PageID #:276216
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`criminal protective order limits disclosure beyond those involved in the criminal case as
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`defendants, counsel, staff, expert witnesses and advisors, witnesses, or outside counsel
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`for a defendant’s current or former employer. See id. at ¶ 4. Material designated
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`Confidential and Highly Confidential under the Agreed Confidentiality Order would
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`quality for classification as Protected Information under the Second Amended
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`Protective Order.
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`E. Conclusion
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`For the foregoing reasons, the Court should grant this unopposed motion.
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`Dated: December 11, 2020
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`Respectfully submitted,
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`_____________________________
`PAUL J. TORZILLI, Trial Attorney
`MICHAEL T. KOENIG, Trial Attorney
`HEATHER CALL, Trial Attorney
`CAROLYN M. SWEENEY, Trial Attorney
`U.S. Department of Justice
`Antitrust Division
`450 5th St NW
`Washington, DC 20530
`202/514.8349
`Paul.Torzilli@usdoj.gov
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`Case: 1:16-cv-08637 Document #: 4099 Filed: 12/11/20 Page 7 of 7 PageID #:276217
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`CERTIFICATE OF SERVICE
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`I hereby certify that I have caused the foregoing to be filed on the Court’s
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`CM/ECF system, which automatically provides notice to counsel for all parties to the
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`above-captioned action.
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`Dated: December 11, 2020
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`Respectfully submitted,
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`Paul J. Torzilli
`Trial Attorney
`U.S. Department of Justice
`Antitrust Division
`450 5th St NW
`Washington, DC 20530
`202/514.8349
`Paul.Torzilli@usdoj.gov
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