Case: 1:16-cv-08637 Document #: 4864 Filed: 07/20/21 Page 1 of 17 PageID #:305654
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF ILLINOIS
`
`
`
`
`IN RE BROILER CHICKEN ANTITRUST
`LITIGATION
`
`
`THIS DOCUMENT RELATES TO:
`
`Ahold Delhaize USA, Inc. v. Koch Foods, Inc. et
`al., No. 18-cv-5351
`
`
`
`
`
`
`Case No: 1:16-cv-08637
`
`Judge Thomas M. Durkin
`
`Judge Jeffrey T. Gilbert
`
`[REDACTED]
`
`
`TYSON DEFENDANTS’ OPPOSITION
`TO DIRECT-ACTION PLAINTIFF AHOLD
`DELHAIZE’S MOTION TO COMPEL TYSON DEPOSITION
`
`Plaintiff Ahold Delhaize USA, Inc. (“Ahold”) has been in this case for almost three full
`
`years. During that time, Ahold has been given access to more than 1.3 million documents
`
`produced by Tyson;1 it has had the chance to participate in the 30(b)(1) depositions of eighteen
`
`present and former employees of Tyson and its affiliates (with one more scheduled on July 29);
`
`and it has had the chance to participate in four days of 30(b)(6) testimony of Tyson and its
`
`affiliates. Ahold has also taken advantage of the opportunity to request—and receive—
`
`discovery specific to the relationship between Tyson and Ahold, including the designation of
`
`Michael Shinstine as an Ahold-specific document custodian and the preparation of a Tyson
`
`30(b)(6) witness to testify on Ahold-specific deposition topics.
`
`This combination of general and Ahold-specific discovery is more than proportional to
`
`the needs of this case for Ahold—just one of more than 160 direct-action plaintiffs. And Ahold
`
`seemed satisfied. Indeed, after first serving its own 30(b)(6) notice in May 2019, Ahold went
`
`
`1 Tyson refers to Tyson Foods, Inc.; Tyson Chicken, Inc.; Tyson Breeders, Inc.; Tyson Poultry,
`Inc.
`
`

`

`Case: 1:16-cv-08637 Document #: 4864 Filed: 07/20/21 Page 2 of 17 PageID #:305655
`
`almost two full years without making any efforts to exceed the twenty specific Tyson depositions
`
`that this Court previously allowed. (Dkt. 2024.) When it did so—joining other DAPs’ April
`
`2021 motion to compel depositions of four current and former employees of Tyson’s subsidiary
`
`Keystone and a 30(b)(6) deposition (Dkt. 4565)—Ahold said nothing to suggest that the Court
`
`should consider the possibility of yet another Tyson deposition in its proportionality analysis.
`
`But then Defendants asked for more discovery from Ahold. On May 3, 2021—just two
`
`weeks after Ahold’s first deponent testified—Defendants asked Ahold to add two more 30(b)(1)
`
`deponents on top of the one completed 30(b)(6) deposition and the one pending 30(b)(1)
`
`deposition. In retaliation, Ahold demanded three days later that Tyson and several other
`
`Defendants make additional witnesses available for Ahold to depose. Tyson refused to allow
`
`Ahold to hold Defendants’ legitimate, timely and proportional request hostage to Ahold’s
`
`retaliatory, untimely and improper demand. And here we are.
`
`Ahold’s Motion to Compel Mr. Shinstine’s deposition (Dkt. 4778 (“Motion” or “Mot.”))
`
`should be denied for three reasons. First, the Court should reject Ahold’s attempt to use the
`
`threat of Mr. Shinstine’s deposition as leverage to avoid additional Ahold witness depositions.
`
`When it comes to the cost and burden of discovery compliance, Ahold and Tyson could not be
`
`more differently situated. Despite being half Ahold’s size, Tyson has had ten times as many
`
`depositions and produced about 50% more documents. Tyson has also produced a corporate
`
`designee who addressed Ahold-specific topics in response to Ahold’s individual questioning.
`
`(Mot. at 2.) Further discovery of Tyson is unduly burdensome.
`
`Second, Ahold’s argument that it is entitled to discovery on its “unique claims” is a red
`
`herring. Ahold’s “unique claims” are merely common law claims arising from the same factual
`
`predicates as its antitrust and RICO claims regarding the Georgia Dock. Those “unique claims”
`
`
`
`2
`
`

`

`Case: 1:16-cv-08637 Document #: 4864 Filed: 07/20/21 Page 3 of 17 PageID #:305656
`
`will rise or fall with Ahold’s core antitrust and RICO claims, and Ahold cannot dress up those
`
`claims in common law clothes as a basis for deposing Mr. Shinstine.
`
`Third, courts have denied requests to notice additional depositions where the party
`
`requesting discovery waited until near the end of the fact discovery period to seek permission.
`
`After identifying Mr. Shinstine as a person with knowledge in 2018, negotiating for Mr.
`
`Shinstine’s inclusion as a document custodian, and obtaining almost 30,000 documents involving
`
`or referencing him, Ahold made the choice not to timely request his deposition. It is simply too
`
`late for Ahold to change its mind now.
`
`Discovery must have limits. This Court should deny Ahold’s unduly burdensome and
`
`untimely request.
`
`BACKGROUND
`
`Ahold filed its original complaint in August 2018. (Compl., Ahold Delhaize USA, Inc. v.
`
`Koch Foods, Inc. et al., No. 18-cv-5351 (N.D. Ill. Aug. 6, 2018), Dkt. 1.) Mr. Shinstine’s role in
`
`the relationship between Tyson and Ahold was no secret—Ahold requested that Tyson designate
`
`Mr. Shinstine as a custodian in December 2018 because he “had frequent contact with Ahold
`
`Delhaize” and was “named by multiple Ahold Delhaize employees as the point of contact for
`
`Tyson[.]” (Ex. 1, Dec. 10, 2018 Letter from E. Bolles to J. Tanski.)
`
`In February 2019, Plaintiffs, including Ahold, moved to double the number of
`
`depositions that they could take of Tyson, (Dkt. 1920), and identified the specific Tyson
`
`depositions they sought. (Dkt. 1920-3.) But despite being a person of interest for Ahold since
`
`December 2018, Ahold chose not to ask for Mr. Shinstine’s deposition. (Id.) The Court granted
`
`Plaintiffs’ motion on April 10, 2019. (Dkt. 2024.)
`
`Eight days later, Ahold amended its complaint to add its supposedly “unique” common
`
`law claims for fraud, breach of the implied covenant of good faith and fair dealing, and negligent
`3
`
`
`
`

`

`Case: 1:16-cv-08637 Document #: 4864 Filed: 07/20/21 Page 4 of 17 PageID #:305657
`
`misrepresentation. (Dkt. 2099.) In May 2019, Ahold served its own draft 30(b)(6) deposition
`
`notice on Tyson. (Ex. 2, Schedule A to Ahold Delhaize 30(b)(6) Notice to the Tyson
`
`Defendants.) Ahold noted in July 2019 that Mr. Shinstine was an “additional contemplated
`
`deponent[].” (Mot., Ex. D.) Tyson later agreed to designate Mr. Shinstine as a custodian, (Mot.
`
`at 4), above and beyond the 48 document custodians it had designated as of that time. (Mot., Ex.
`
`C.) By the end of 2020, Tyson had produced approximately 18,000 documents from Mr.
`
`Shinstine’s custodial files, bringing the total volume of documents involving Mr. Shinstine up to
`
`almost 30,000. Yet Ahold never took any steps toward deposing Mr. Shinstine.
`
`Meanwhile, in early 2021, Ahold joined a request—and ultimately a motion to compel—
`
`seeking five depositions of Tyson’s subsidiary, Keystone. (Dkt. 4565, at 1 n.1.) At no time
`
`during the parties’ negotiations, the briefing on the motion to compel, or the argument to the
`
`Court did Ahold hint that still more Tyson deposition requests would be coming.
`
`But then Tyson joined other Defendants in requesting to additional Ahold witness
`
`depositions. Three days later, on May 6, 2021—after sitting on its hands for months, if not
`
`years—Ahold retaliated by formally demanding Mr. Shinstine’s deposition. (Mot., Ex. F.)
`
`Tyson refused, and the Motion followed.
`
`ARGUMENT
`
`
`
`AN ADDITIONAL TYSON DEPOSITION OF MR. SHINSTINE IS UNDULY
`BURDENSOME AND DISPROPORTIONATE TO THE NEEDS OF THE CASE
`
`
`
`Tyson Has Provided Extensive Discovery to Ahold
`
`Tyson has shouldered an immense discovery burden in this case—the heaviest load of
`
`any party. Tyson and its affiliates have produced more than 1.3 million documents from 59
`
`document custodians plus hundreds of gigabytes of structured data. It has been subject to
`
`
`
`4
`
`

`

`Case: 1:16-cv-08637 Document #: 4864 Filed: 07/20/21 Page 5 of 17 PageID #:305658
`
`extensive written discovery, and its witnesses have endured eighteen 30(b)(1) depositions plus
`
`four days of 30(b)(6) deposition to date—with one further 30(b)(1) deposition scheduled.2
`
`Tyson has also provided extensive Ahold-specific discovery—indeed, Ahold has
`
`requested and received more individual discovery from Tyson than any other DAP. Tyson has
`
`designated Mr. Shinstine as a document custodian at Ahold’s request (Mot. at 4), and produced
`
`almost 30,000 documents referencing Mr. Shinstine. Tyson has also prepared and produced a
`
`30(b)(6) witness to testify about the topics in Ahold’s individual 30(b)(6) notice. (Ex. 2.)
`
`But Ahold wants more. Ahold claims “that the deposition of Mr. Shinstine is highly
`
`relevant to Ahold Delhaize’s Unique Claims against Tyson” because he oversaw Tyson’s
`
`relationship with Ahold. (Mot. at 8-9.) Ignoring the discovery burdens Tyson has already
`
`carried, Ahold dismissively insists that “[a]ny burden to Tyson from Mr. Shinstine’s deposition
`
`is far outweighed by the prejudice Ahold Delhaize will suffer if it is not able to depose him.”
`
`(Id. at 9.)
`
`Courts around the country have made clear that “[t]he mere fact that there are several
`
`individuals who may possess relevant information does not necessarily entitle a party to examine
`
`each of them.” Hertz Corp. v. Accenture LLP, 2020 WL 1150053, at *2 (S.D.N.Y. Mar. 9, 2020)
`
`(internal citation and quotation omitted). As this Court astutely observed in connection with
`
`Plaintiffs’ motion to double the number of Tyson depositions two years ago, “there’s no divine
`
`right to take a deposition . . . in civil litigation in federal court.” (Ex. 3, Apr. 10, 2019 Hearing
`
`Tr. at 39:20-22.) Another court in this Circuit more recently noted that “[t]he discovery rules are
`
`not a ticket . . . to an unlimited, never-ending exploration of every conceivable matter that
`
`captures an attorney’s interest.” Ross v. Gossett, 2021 WL 632963, at *2 (S.D. Ill. Feb. 18,
`
`
`2 This figure includes the depositions of Tyson’s subsidiaries Cobb-Vantress and Keystone.
`5
`
`
`
`

`

`Case: 1:16-cv-08637 Document #: 4864 Filed: 07/20/21 Page 6 of 17 PageID #:305659
`
`2021) (internal citations and quotations omitted). Indeed, “a district court has a duty, of special
`
`significance in lengthy and complex cases [such as this] where the possibility of abuse is always
`
`present, to supervise and limit discovery when it feels the discovery is cumulative, unnecessary,
`
`designed to annoy or harass, excessively expensive, or only marginally important.” Id. (internal
`
`citations and quotations omitted).
`
`
`
`Ahold Had Discovery Tools Available to Get the Information it Wants
`
`In an exceedingly complex litigation like this, foisting yet another deposition on Tyson—
`
`on top of the twenty Tyson has already defended and another that is on the calendar—is unduly
`
`burdensome: “Depositions are often overused and conducted inefficiently, and thus tend to be the
`
`most costly and time-consuming activity in complex litigation.” Manual for Complex Litig. §
`
`11.45 (4th ed. 2004); see also O’Toole v. Sears Roebuck & Co., 2014 WL 1388660, at *3 (N.D.
`
`Ill. Apr. 10, 2014) (“Depositions are clearly more burdensome than written discovery.”). That is
`
`why the Manual for Complex Litigation counsels that courts “should manage the litigation so as
`
`to avoid unnecessary depositions, limit the number and length of those that are taken, and ensure
`
`that the process of taking depositions is as fair and efficient as possible.”3 Manual for Complex
`
`Litig. § 11.45.
`
`Courts have denied motions to compel additional depositions in the circumstances found
`
`here—where “the discovery sought . . . [could have been] obtained from some other source that
`
`is more convenient, less burdensome, or less expensive” and “the party seeking discovery has
`
`had ample opportunity to obtain the information by discovery in the action.” Fed. R. Civ. P.
`
`
`3 Recognizing the burden associated with depositions, the Court recently allowed four 30(b)(1)
`depositions and one 30(b)(6) deposition from Tyson’s subsidiary, Keystone, while accepting
`certain DAPs’ proposed compromise to “trade among Tyson depositions to limit the additional
`depositions that would be taken as a result[.]” (Ex. 4, May 7, 2021 Hearing Tr. at 29:5-11.)
`With their Motion, Ahold now seeks to undo that compromise.
`6
`
`
`
`

`

`Case: 1:16-cv-08637 Document #: 4864 Filed: 07/20/21 Page 7 of 17 PageID #:305660
`
`26(b)(2)(C); see also Patterson v. Avery Dennison Corp., 281 F.3d 676, 681 (7th Cir. 2002)
`
`(applying “totality of the circumstances” test). If Ahold wanted to know whether Tyson
`
`represented that its prices were submitted in good faith—and it could not sufficiently answer that
`
`question with the 1.3 million documents Tyson has produced—Ahold could have questioned
`
`Tyson’s other witnesses, served interrogatories, or both.
`
`Indeed, Ahold had the opportunity to participate in every Tyson deposition to date
`
`covering witnesses at all levels of the company, and Ahold did ask some questions on this
`
`subject during Tyson’s 30(b)(6) deposition. Tyson’s designee answered these questions,
`
`testifying about
`
`Ex. B, Tyson 30(b)(6) Dep. Tr. at 105:1-106:6),
`
` (Mot.,
`
`
`
` (Id. at 106:14-23, 125:19-126:24). Despite Ahold’s purported need to question
`
`Mr. Shinstine, Ahold did not mark a single exhibit authored by Mr. Shinstine at Tyson’s 30(b)(6)
`
`deposition. And of the five exhibits Ahold marked, Mr. Shinstine was only referenced in one.
`
`Ahold’s failure to do anything else to explore this issue until the eve of the close of fact
`
`discovery “casts serious doubt over [Ahold’s] claim that [Mr. Shinstine] possesse[s] information
`
`that [is] more than marginally relevant” to Ahold’s claims. Patterson, 281 F.3d at 682. In
`
`Patterson, the Seventh Circuit found it fatal that the plaintiff “failed to submit any interrogatories
`
`to [the deponent], although [plaintiff] had the right and the opportunity to do so,” and despite
`
`claiming that the deponent’s testimony would be relevant to plaintiff’s claim. Id. at 681-82. The
`
`court thus held that the trial court did not abuse its discretion in declining to compel the
`
`deposition sought. Id. at 682. Ahold’s failure to use alternative, less expensive, and more
`
`convenient means to secure the discovery sought should likewise doom its Motion. Id.; see also,
`
`e.g., Doxtator v. O’Brien, 2020 WL 3893992, at *2 (E.D. Wis. July 10, 2020) (denying motion to
`
`
`
`7
`
`

`

`Case: 1:16-cv-08637 Document #: 4864 Filed: 07/20/21 Page 8 of 17 PageID #:305661
`
`compel deposition where “[p]laintiffs have already had ample opportunity to obtain the
`
`information by discovery in the action”); ADT Sec. Servs., Inc. v. Pinnacle Sec., LLC, 2012 WL
`
`1597383, at *3 (N.D. Ill. May 7, 2012) (denying motion to compel individual depositions where
`
`“[p]laintiff has not demonstrated that it was restricted in using Rule 30(b)(6) to discover the
`
`information it now seeks”).
`
`
`
`Ahold’s Excuses For Not Using These Tools Should Be Rejected
`
`Ahold complains that it was limited to only 44 minutes of questioning at Tyson’s
`
`30(b)(6) deposition. (Mot. at 12.) But that was not of Tyson’s doing. Ahold could have—and
`
`should have—negotiated with the other Plaintiffs if it needed additional time for questions
`
`related to its “unique” claims. And other than asserting a generalized preference for 30(b)(1)
`
`testimony, (Mot. at 13), Ahold does not complain that Tyson’s 30(b)(6) testimony was in any
`
`way inadequate or that Tyson’s corporate representative was insufficiently prepared. See
`
`Johnson v. United Airlines, Inc., 2016 WL 7742747, at *1 (S.D. Tex. Apr. 14, 2016) (denying
`
`motion to compel individual depositions after a 30(b)(6) deposition, noting that “counsel [did]
`
`not apparently complain about [the corporate representative’s] testimony”). Rather, Ahold
`
`simply chose to allocate time to other topics during its 30(b)(6) questioning.
`
`Ahold’s other arguments in favor of deposing Mr. Shinstine are equally unavailing.
`
`Ahold’s concern about the admissibility of Tyson’s 30(b)(6) testimony is misplaced, and the case
`
`on which Ahold relies is inapposite. Sara Lee Corp. v. Kraft Foods Inc. involved 30(b)(6)
`
`testimony from a third party. 276 F.R.D. 500, 502 (N.D. Ill. 2011) (confronting admissibility of
`
`“statements about which the third-party 30(b)(6) witness lacked personal knowledge”). Tyson is
`
`not a third party in Ahold’s action. Ahold also misconstrues Sara Lee to hold that 30(b)(6)
`
`testimony is inadmissible at trial. (Mot. at 12.) But the court there reached precisely the
`
`opposite conclusion: “This Court, therefore, will not limit [the corporate representative’s]
`8
`
`
`
`

`

`Case: 1:16-cv-08637 Document #: 4864 Filed: 07/20/21 Page 9 of 17 PageID #:305662
`
`testimony strictly to matters within [the corporate representative’s] personal knowledge[,]”
`
`because “strictly imposing the personal knowledge requirement would only recreate the
`
`problems that Rule 30(b)(6) was created to solve.” Sara Lee, 276 F.R.D. at 503 (emphasis
`
`added).
`
`Ahold also argues that G&S Metal supports its position because “where the prejudice to
`
`the movant outweighs the burden of providing the discovery, the movant should be granted the
`
`discovery.” (Mot. at 12.) Ahold’s reading of G&S Metal is wrong; as this Court has repeatedly
`
`made clear, “there’s no divine right to take a deposition . . . in civil litigation in federal court.”
`
`(Ex. 3, at 39:20-22); see also Hertz, 2020 WL 1150053, at *2 (similar).
`
`Moreover, G&S Metal is easily distinguished. That case involved an additional tailored
`
`deposition to avoid prejudice because critical documents were not timely disclosed. G&S Metal
`
`Consultants, Inc. v. Cont’l Cas. Co., 2013 WL 4950802, at *4-5 (N.D. Ind. Sept. 10, 2013).
`
`Tellingly, Ahold selectively splices the court’s words to fit its narrative, excluding this critical
`
`distinguishing factor: “Without the ability to take (or retake) necessary depositions, especially
`
`regarding matters of great importance, there is no doubt that [plaintiff’s] delayed disclosures
`
`interfered with [defendant’s] ability to conduct proper discovery.” Id. at *5 (emphasis added).
`
`The court allowed “re-open[ing] [of] discovery for a limited purpose . . . only with regard to
`
`matters contained in the subsequent [i.e., delayed] disclosures.” Id.
`
`Ahold cannot bring this case within the four corners of G&S Metal. There was no
`
`delayed disclosure here. Ahold first identified Mr. Shinstine as a person of interest in December
`
`2018 (Ex. 1), and Ahold concedes that it recognized that it might seek to depose Mr. Shinstine in
`
`July 2019. (Mot., Ex. D.) But even after Judge Durkin pointed out that this case was on
`
`“borrowed time[,]” (Dkt. 3835, at 6), Ahold sat on its hands for another eight months before
`
`
`
`9
`
`

`

`Case: 1:16-cv-08637 Document #: 4864 Filed: 07/20/21 Page 10 of 17 PageID #:305663
`
`formally requesting Mr. Shinstine’s deposition. Ahold cannot seriously contend that it is
`
`prejudiced by its own delay, and thus G&S Metal is irrelevant.
`
`Between Tyson’s very substantial document productions (including almost 30,000
`
`documents referencing Mr. Shinstine), multiple depositions where Tyson’s participation in the
`
`Georgia Dock was explored at length, and Ahold’s opportunity to question Tyson’s 30(b)(6)
`
`witness, the Seventh Circuit’s totality of circumstances analysis, Patterson, 281 F.3d at 681,
`
`makes abundantly clear that “there has already been extensive discovery” on any point about
`
`which Mr. Shinstine could be expected to testify. See United States v. NCR Corp., 2012 WL
`
`4955304, at *2 (E.D. Wis. Oct. 17, 2012) (denying motion to compel); Mr. Frank, Inc. v. Waste
`
`Mgmt., Inc., 1983 WL 1859, at *4 (N.D. Ill. July 7, 1983) (same). And Ahold’s claim that Mr.
`
`Shinstine’s deposition is necessary is belied by its failure to propound written discovery or
`
`question any other witness about Ahold’s “unique claims.” Patterson, 281 F.3d at 681-82.
`
`Mr. Shinstine’s deposition is unduly burdensome and disproportionate to the needs of the
`
`case, and Ahold’s Motion should therefore be denied.
`
`
`
`AHOLD’S COMMON LAW CLAIMS ARE NOT UNIQUE AND
`AN INDIVIDUAL DEPOSITION IS UNNECESSARY TO PURSUE THEM
`
`Ahold claims that it is entitled to further discovery on its “unique claims.” (Mot. at 2.)
`
`This is nothing more than a red herring. The few common law claims that Ahold brings—for
`
`fraud, breach of the implied covenant of good faith and fair dealing, and negligent
`
`misrepresentation (Mot. at 1)—arise from the same factual predicate as its antitrust and RICO
`
`claims regarding the Georgia Dock that Ahold and the other 160-plus DAPs assert. Ahold’s
`
`common law claims “do not stand independently[.]” Upsher-Smith Lab’ys, Inc. v. Fed. Ins., 264
`
`F. Supp. 2d 843, 850 (D. Minn. 2002) (“the factual basis for all of the ‘separate common law and
`
`non-antitrust claims’ is the underlying antitrust actions”). No individualized discovery is
`
`
`
`10
`
`

`

`Case: 1:16-cv-08637 Document #: 4864 Filed: 07/20/21 Page 11 of 17 PageID #:305664
`
`necessary because all Plaintiffs, including Ahold, have taken extensive discovery relevant to that
`
`common factual predicate, as discussed above.
`
`Tyson attempted to learn more about Ahold’s “unique” claims by serving interrogatories,
`
`and Ahold’s recently-served responses served only to highlight that individualized discovery is
`
`unnecessary and that Mr. Shinstine will provide, at best, only “marginally relevant” information.
`
`Patterson, 281 F.3d at 681-82.
`
`
`
`
`
`
`
`
`
`
`
` (Ex. 5, Plaintiff
`
`Ahold Delhaize USA, Inc.’s Responses and Objections to Tyson Defendants’ First Set of
`
`Interrogatories to Ahold Delhaize USA, Inc., at 7.) For example:
`
`(Ex. 6, TF-0002939592.) Ahold did not identify anything that Mr. Shinstine allegedly said or
`
`authored as containing a false or misleading representation. It is unclear what Mr. Shinstine’s
`
`deposition could contribute regarding the boilerplate Ahold highlights.
`
`
`
`11
`
`

`

`Case: 1:16-cv-08637 Document #: 4864 Filed: 07/20/21 Page 12 of 17 PageID #:305665
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`(Ex. 5, at 9.) It is unclear what relevant testimony Mr. Shinstine could provide given that he
`
`played no part in Tyson’s participation in the Georgia Dock and related organizations.4
`
`Ahold also claims it needs individualized discovery because Tyson “emphasized that
`
`individualized proof is necessary in this case in its opposition to class certification.” (Mot. at 2,
`
`11.) But Tyson did not join any oppositions to class certification. Ahold’s argument that Tyson
`
`is using the “‘uniqueness’ of plaintiffs’ claims as both a sword and a shield,” (Mot. at 11), falls
`
`flat.
`
`Ahold’s last stab at seeking individualized discovery regarding its “unique claims”
`
`focuses on the affirmative defenses that Tyson could employ. (Mot. at 2-3, 11.) But Ahold
`
`provides no specifics on why testimony from Mr. Shinstine is necessary for that purpose and
`
`why his documents will not suffice. More troubling, however, is that accepting Ahold’s
`
`argument would open Pandora’s box—Tyson’s affirmative defenses appear in the consolidated
`
`
`4 Ahold had the opportunity to participate in the depositions of the Tyson employees that did
`have involvement with the Georgia Dock.
`
`
`
`12
`
`

`

`Case: 1:16-cv-08637 Document #: 4864 Filed: 07/20/21 Page 13 of 17 PageID #:305666
`
`answer to the DAPs’ consolidated complaint, (Dkt. 4417), so every DAP would be equally
`
`entitled to individualized discovery about these defenses.5 The Court recognized this very
`
`concern in April 2019, when it doubled the number of Tyson depositions allowed but cautioned
`
`against the type of motion Ahold is now pressing: “I find it hard to believe that I’m going to
`
`completely cater to each and every person’s desire with respect to some deposition someplace
`
`about a contract that was negotiated, and I don’t think that’s—I’m not going to have to. . . . I also
`
`do not intend to open up the door to everybody—60 people litigating their own case, and I don’t
`
`think the defendants should have to deal with that.” (Ex. 3, at 41:6-10, 42:5-7.) This concern is
`
`only magnified today—the number of DAPs has more than doubled since April 2019.
`
`Moreover, there is no principled basis to allow Ahold to depose Mr. Shinstine while also
`
`prohibiting every other DAP from seeking individualized discovery from Tyson (or other
`
`defendants) for their “unique” claims or Tyson’s affirmative defenses. Indeed, in the last several
`
`weeks, other DAPs represented by Ahold’s counsel have filed multiple motions to compel
`
`individualized document custodians and depositions. (See, e.g., Dkts. 4704, 4738, 4797.)
`
`Granting Ahold’s Motion—on the eve of the close of fact discovery—will open the
`
`discovery floodgates, leading to even more “protracted discovery, the bane of modern litigation.”
`
`In re Sulfuric Acid Antitrust Litig., 231 F.R.D. 331, 337 (N.D. Ill. 2005) (citation omitted).
`
`
`
`AHOLD HAS SAT ON ITS HANDS AND ITS
`UNTIMELY REQUEST MUST THEREFORE BE DENIED
`
`In Ross v. Gossett, the court denied a motion to compel depositions of individuals that the
`
`“[p]laintiffs [had] long known about” but failed to request until shortly before the close of fact
`
`discovery. 2021 WL 632963, at *4. There, the individuals at issue were known about “since at
`
`
`5 Ahold’s reliance on Tyson’s affirmative defenses also highlights Ahold’s sheer lack of
`diligence in pursuing whatever individualized discovery it now seeks. Tyson’s affirmative
`defenses have been known to Ahold since February 15, 2019. (Dkt. 1786.)
`13
`
`
`
`

`

`Case: 1:16-cv-08637 Document #: 4864 Filed: 07/20/21 Page 14 of 17 PageID #:305667
`
`least . . . when the amended complaint was filed[.]” Id. The plaintiffs there also emailed
`
`defendants about their desire to depose the individuals later requested without formally noticing
`
`the depositions. Id. at *3.
`
`After identifying Mr. Shinstine in December 2018 (Ex. 1), and informing Tyson in July
`
`2019 that it contemplated deposing him (Mot., Ex. D), Ahold failed to follow through until May
`
`2021. (Mot., Ex. F.) Even more recently, Ahold participated in the negotiations and briefing
`
`regarding additional depositions of Tyson’s subsidiary, Keystone. (Dkt. 4565.) At no time
`
`during those meet and confers, in the briefing, or in arguments to the Court, did Ahold hint that it
`
`also sought to depose an additional Tyson witness.
`
`Ahold provides no explanation for why it sat on its hands. If Ahold actually needed to
`
`depose Mr. Shinstine for any reason other than retaliation, then Ahold could have—and should
`
`have—requested to depose Mr. Shinstine when he was first identified as a person of interest in
`
`December 2018. Instead, Ahold did nothing, and now effectively asks the Court to turn back the
`
`clock just as fact discovery is finally coming to an end. The Court should decline to do so. As
`
`the Seventh Circuit has observed, “[w]hen parties wait until the last minute to comply with a
`
`deadline, they are playing with fire.” Spears v. City of Indianapolis, 74 F.3d 153, 157 (7th Cir.
`
`1996) (quoted in Ross, 2021 WL 632963, at *4).
`
`CONCLUSION
`
`“Discovery, like all matters of procedure, has ultimate and necessary boundaries.”
`
`Hickman v. Taylor, 329 U.S. 495, 407 (1947). Ahold seeks to exceed those boundaries with its
`
`Motion, opening the floodgates to individualized discovery of Tyson by every DAP with
`
`supposed “unique claims,” transforming this Court’s concern of “open[ing] up the door to
`
`everybody—60 people litigating their own case” into prophecy—and prolonging this already
`
`protracted litigation. (Ex. 3, at 42:5-7.) The Court should deny Ahold’s Motion.
`14
`
`
`
`

`

`Case: 1:16-cv-08637 Document #: 4864 Filed: 07/20/21 Page 15 of 17 PageID #:305668
`
`
`Dated: July 20, 2021
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Respectfully submitted,
`
`By: /s/ Rachel J. Adcox
`Rachel J. Adcox (#1001488)
`Daniel K. Oakes (admitted pro hac vice)
`Kenina J. Lee (admitted pro hac vice)
`AXINN, VELTROP & HARKRIDER LLP
`1901 L Street NW
`Washington, DC 20036
`Telephone: (202) 912-4700
`Facsimile: (202) 912-4701
`radcox@axinn.com
`doakes@axinn.com
`klee@axinn.com
`
`John M. Tanski (admitted pro hac vice)
`Jarod G. Taylor (admitted pro hac vice)
`AXINN, VELTROP & HARKRIDER LLP
`90 State House Square
`Hartford, CT 06103
`Telephone: (860) 275-8100
`Facsimile: (860) 275-8101
`jtanski@axinn.com
`jtaylor@axinn.com
`
`
`Nicholas E.O. Gaglio (admitted pro hac vice)
`Kail J. Jethmalani (admitted pro hac vice)
`AXINN, VELTROP & HARKRIDER LLP
`114 West 47th Street
`New York, NY 10036
`Telephone: (212) 728-2200
`Facsimile: (212) 261-5654
`ngaglio@axinn.com
`kjethmalani@axinn.com
`
`
`
`15
`
`

`

`Case: 1:16-cv-08637 Document #: 4864 Filed: 07/20/21 Page 16 of 17 PageID #:305669
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Jordan M. Tank
`LIPE LYONS MURPHY NAHRSTADT &
`PONTIKIS, LTD.
`230 West Monroe, Street, Ste 2260
`Chicago, IL 60606
`Telephone: (312) 702-0586
`Facsimile: (312) 726-2273
`jmt@lipelyons.com
`
`
`Attorneys for Defendants Tyson Foods, Inc.,
`Tyson Chicken, Inc., Tyson Breeders, Inc.,
`Tyson Poultry, Inc.
`
`
`
`
`
`
`
`
`
`
`
`16
`
`

`

`Case: 1:16-cv-08637 Document #: 4864 Filed: 07/20/21 Page 17 of 17 PageID #:305670
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that on July 20, 2021, a true and correct copy of the foregoing document
`
`was electronically filed with the Clerk of the Court using CM/ECF system, which will send
`
`notification of such filing to all counsel of record.
`
`
`
`
`
`
`
`/s/ Jordan M. Tank
`Jordan M. Tank
`LIPE LYONS MURPHY NAHRSTADT &
`PONTIKIS, LTD.
`230 West Monroe, Street, Ste 2260
`Chicago, IL 60606
`Telephone: (312) 702-0586
`Facsimile: (312) 726-2273
`jmt@lipelyons.com
`
`