Case: 1:16-cv-08637 Document #: 4865 Filed: 07/20/21 Page 1 of 13 PageID #:305842
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF ILLINOIS
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`
`IN RE BROILER CHICKEN ANTITRUST
`LITIGATION
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`THIS DOCUMENT RELATES TO:
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`ALDI, Inc. v. Agri-Stats, Inc., et al.
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`Case No: 1:16-cv-08637
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`Judge Thomas M. Durkin
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`Judge Jeffrey T. Gilbert
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`TYSON DEFENDANTS’ OPPOSITION TO ALDI’S
`MOTION TO COMPEL INDIVIDUAL DISCOVERY1
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`In 2017 and 2018, Tyson2 spent scores of hours and millions of dollars searching for,
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`collecting, culling, and producing documents. Over the course of the summer and fall of 2017,
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`with the close oversight of this Court and the Special Master, the parties negotiated search terms,
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`custodians, and precisely how they would utilize technology-assisted review technology. Tyson
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`let the Plaintiffs know the search technology it was using and how it handled various types of
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`search syntax, prioritized the production of documents from certain custodians, and agreed to
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`allow Plaintiffs to propose a second round of search terms after reviewing Tyson’s documents.
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`Tyson has now produced over 1.3 million documents to date. Those documents provide
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`Plaintiffs with rich factual detail about Tyson’s production and pricing decisions, interaction
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`with the Georgia Dock index, and relationships with key customers. Since document production
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`1 It is Tyson’s understanding that ALDI has withdrawn (or will withdraw) its Motion as to
`Defendants Koch Foods Inc., JCG Foods of Alabama LLC, JCG Foods of Georgia LLC and
`Koch Meat Co., Inc (collectively “Koch”); Simmons Foods, Inc. and Simmons Prepared Foods,
`Inc. (collectively “Simmons”); and Foster Farms, LLC and Foster Poultry Farms (collectively
`“Foster Farms”). “Mot.” or “Motion” refers to ALDI’s memorandum in support of its motion to
`compel.
`2 Tyson refers to Tyson Foods, Inc.; Tyson Chicken, Inc.; Tyson Breeders, Inc.; Tyson Poultry,
`Inc.
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`

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`was substantially complete in July 2018, the parties have relied on that corpus of documents to
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`take almost 400 depositions and brief three class certification motions.
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`Now, with 10 days left before the close of fact discovery, ALDI is belatedly pushing to
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`reopen that process. It is asking Tyson to designate a new document custodian, produce new
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`documents, and make a new witness available for deposition.3 But this Court has been clear,
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`“[t]he attorney fees generated on both sides [of this case] are enormous and may be problematic
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`for smaller defendants. This should not be a war of attrition.” (Dkt. 3835 at 8.) Likewise, this
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`Court has explained that “if somebody has been a direct action plaintiff in this case for a long
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`time . . . , I would assume that they have been able to discover their case within the discovery
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`schedule we had until now.” (Ex. 1, May 7, 2021 Hr’g Tr. at 54:23-55:2.)
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`ALDI has had an ample amount of time—eight months—to discover its case, with the
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`full benefit of this voluminous record, experienced counsel, and substantial financial resources.
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`If ALDI wanted additional discovery relating to its purchases of broiler chicken (beyond the
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`37,722 documents that ALDI produced and the almost 13,000 documents that Tyson produced
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`mentioning ALDI), it should not have waited until the close of discovery to try to carve out an
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`“ALDI only” track for continued discovery.
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`More broadly, the present motion is a part of the DAPs’ threatened “avalanche” of
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`discovery motions. (See Ex. 1, at 56:14-15 (Liaison Counsel for DAPs stating, “Well, I think
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`3 Tyson attempted to negotiate a compromise to avoid motion practice. Tyson has offered that if
`it decides to call Eugene Nash to testify against Aldi at trial, it would (1) agree to a limited
`production of Mr. Nash’s documents and (2) cooperate with ALDI to make Mr. Nash available
`for a deposition prior to such testimony, while (3) preserving Mr. Nash’s emails during the
`pendency of this litigation. While ALDI has agreed to a similar compromise with Defendants
`Simmons and Foster Farms, ALDI has rejected Tyson’s proposal and insists that Tyson produce
`Mr. Nash’s documents now, irrespective of whether he is ever called as a witness at trial.
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`2
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`there will be an avalanche”).) Collectively, these DAP motions stand for the proposition that no
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`matter how long they slept on their rights in discovery and no matter how much Tyson has
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`accommodated them, certain DAPs will continue to demand new discovery specific to them on
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`top of the very substantial—and onerous—discovery that Tyson has already provided. With the
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`number of DAPs in this case growing, that is not a tenable position for Tyson, this Court, or the
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`other parties who have expressed an interest in moving this case forward.
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`Accordingly, ALDI’s motion should be denied for two reasons. First, ALDI should not
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`be allowed to second guess the carefully-crafted compromises that underlie the parties’
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`agreement concerning the selection of document custodians. Second, ALDI’s requests are
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`unduly burdensome and disproportionate to the needs of the case.
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`BACKGROUND
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`Long before ALDI joined this case, a group of plaintiffs successfully moved the Court to
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`double the number of Tyson depositions they would be allowed to take. (Dkt. 1920.) ALDI’s
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`counsel joined this motion on behalf of their client Ahold Delhaize USA, Inc. (Id.) The Court’s
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`resulting order defined the specific list of twenty Tyson depositions that would be allowed. (Dkt.
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`2024.) Consistent with the Plaintiffs’ focus on supply decisions, this list included numerous
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`present and former senior executives, and not account-level representatives.
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`Counsel filed ALDI’s complaint on November 20, 2020. At the time, approximately
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`eight months from the current close of fact discovery, Defendants promptly served ALDI with
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`discovery requests and began negotiating the scope of ALDI’s production. (Mot. at 1.) During
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`those negotiations, ALDI did not suggest that it was contemplating taking any ALDI-specific
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`depositions of Tyson (or other Defendants).
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`On April 27, 2021, a group of DAPs moved the Court to compel five more Tyson-related
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`depositions—a 30(b)(6) deposition of Tyson’s subsidiary, Keystone, and four 30(b)(1)
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`3
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`depositions of current and former Keystone employees. (Dkt. 4565.) ALDI joined this motion.
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`Never in the meet-and-confer discussions that preceded the motion, in the moving papers, or in
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`argument did ALDI suggest that it contemplated seeking further Tyson depositions. As a result,
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`when the Court granted this motion (Dkt. 4616), it never had the opportunity to consider how
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`still more deposition demands would affect its proportionality analysis.
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`On June 18, 2021, six weeks after the Court’s order and almost seven months after ALDI
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`joined the case, ALDI’s counsel emailed counsel for Tyson asking Tyson: (i) to designate
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`employee Eugene Nash as a document custodian; (ii) to confirm that Tyson had applied the
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`search term “ALDI” to Tyson’s document productions; and (iii) to make Mr. Nash available for a
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`deposition prior to the close of fact discovery. (Mot., Ex. A.)
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`ALDI indicated it would withdraw these requests if Tyson stipulated that it would not
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`“call Eugene Nash, or any current or former employee of Tyson who had responsibility for
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`managing the ALDI account, to testify at trial, or submit during pretrial motion practice any
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`declaration or evidence from such witness” and “seek to admit at trial or in pretrial motion
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`practice any a) document containing the term ‘ALDI’ that was not produced during the discovery
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`period or b) any testimony or evidence about ALDI that was not specifically identified in a
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`written discovery response produced during the discovery period.” (Id.)
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`Tyson rejected ALDI’s proposal as unduly burdensome and disproportionate to the needs
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`of case in light of the significant discovery burden Tyson and its subsidiaries have already
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`shouldered. (Id.) Specifically, Tyson has already produced approximately 1.3 million
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`documents to date from 59 document custodians (including over 12,000 referencing Mr. Nash
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`and almost 13,000 referencing ALDI), responded to reams of written discovery, and defended
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`eighteen 30(b)(1) depositions (with another scheduled for July 29) and two 30(b)(6) depositions
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`4
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`occurring over four days. ALDI filed its motion mere days after Tyson’s email, with no attempt
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`to meet and confer with Tyson regarding its request or Tyson’s response.
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`LEGAL STANDARD
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`“Discovery need not be perfect, but [it] must be fair.” Boeynaems v. L.A. Fitness Int’l,
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`285 F.R.D. 331, 333 (E.D. Pa. 2012). Rule 26 requires that the requested discovery be both
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`relevant and “proportional to the needs of the case,” considering such factors as “the importance
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`of the discovery in resolving the issues, and whether the burden or expense of the proposed
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`discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1). Courts will reject a party’s
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`“request to somehow ensure that every single potentially responsive document (no matter how
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`cumulative or burdensome to obtain) should be produced.” Firefighters’ Ret. Sys. v. Citgo Grp.
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`Ltd., 2018 WL 276941, at *4 (M.D. La. Jan. 3, 2018); see also Enslin v. Coca-Cola Co., 2016
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`WL 7042206, at *2 (E.D. Pa. June 8, 2016) (movant must justify that discovery from additional
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`custodians “would be different from, and not simply duplicative of, information that the
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`responding party has already produced.”). Therefore, courts have rejected requests for additional
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`document custodians where, for example, “the marginal utility” of adding the custodians “is
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`low” or “the cost of producing” such documents “would be substantial.” Mortg. Resol.
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`Servicing, LLC v. JPMorgan Chase Bank, N.A., 2017 WL 2305398, at *3 (S.D.N.Y. May 18,
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`2017). And, where the non-movant has already made voluminous prior document productions, it
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`is “considerably more likely that further discovery will be duplicative.” In re Merck & Co., Inc.
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`Secs., Derivative & ERISA Litig., 2012 WL 4764589, at *10 (D.N.J. Oct. 5, 2012).
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`ARGUMENT
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`ALDI SHOULD NOT BE ALLOWED TO SECOND-GUESS THE
`LONG-STANDING AGREEMENTS ON DOCUMENT CUSTODIANS
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`5
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`ALDI’s motion does not mention the extensive, Court-supervised process that led to the
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`parties’ agreement on custodians and search terms. That process was the result of extensive
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`negotiations between Defendants and Plaintiffs, resulted in several status conferences with this
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`Court, and was overseen closely by Special Master Grossman, an unquestioned leader in the
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`electronic discovery field. Tyson has produced millions of pages of documents at a cost of
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`millions of dollars. After much hard work by all involved (including this Court), this case is
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`close to reaching a significant milestone—in less than two weeks most discovery in the case will
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`come to a close, and the parties will dive head-long into expert reports, expert discovery, and
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`summary judgment briefing.
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`ALDI should not be allowed to turn back the clock on this case by second-guessing much
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`of the preceding document discovery in this case. ALDI’s motion begins with a faulty premise
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`that it should be allowed to dictate which individuals Tyson designates as document custodians.
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`But the party producing documents is entitled to select the custodians that it believes are most
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`likely to possess responsive information. Unless the producing party’s choice is manifestly
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`unreasonable or the resulting document production is materially deficient, courts generally play
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`no role in dictating which custodians the parties will select. See, e.g., Firefighters’ Ret. Sys.,
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`2018 WL 276941, at *4 (“Unless [the producing party’s] choice is manifestly unreasonable or
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`the requesting party demonstrates that the resulting production is deficient, the court should play
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`no role in dictating the design of the search, whether in choosing search tools, selecting search
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`terms, or designating custodians.”).4
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`4 Easterwood v. Sedgwick Claims Mgmt. Servs., Inc., 2021 WL 2805923, at *2 (M.D. Fla. Mar.
`17, 2021) (“Defendant is in the best position to identify the proper custodians for responding . . .
`to these discovery requests, and the Court will not speculate as to whether or not the list
`Defendant has compiled to date is sufficient.”); In re EpiPen Mktg., Sales Practices & Antitrust
`Litig., 2018 WL 1440923, at *2 (D. Kan. Mar. 15, 2018) (“[T]he party who will be responding to
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`6
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`This motion demonstrates why the producing party should be entitled to select the most
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`relevant document custodians, and why the Court’s discovery process provided ALDI with more
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`than enough discovery regarding its claims. Tyson has conducted extensive efforts to identify
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`relevant custodians and collect their documents, and Plaintiffs have already taken eighteen Tyson
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`30(b)(1) depositions. What they show is that Tyson’s decisions regarding broiler chicken
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`production levels were not made by the account-level salesperson whose documents and
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`testimony ALDI seeks, Mr. Nash, and that Mr. Nash did not have final authority to determine
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`Tyson’s broiler chicken pricing to ALDI. That is why the Plaintiffs’ counsel responsible for
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`negotiating production agreements with Tyson in 2017 and 2018 focused on getting documents
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`from senior officials—discovery that ALDI received automatically and at no cost when it joined
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`this case four-plus years later. ALDI is only free to spend its resources and this Court’s time
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`chasing Mr. Nash because ALDI already has the discovery that actually matters to its output
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`reduction and Georgia Dock claims.
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`ALDI’S REQUEST IS UNDULY BURDENSOME AND DISPROPORTIONATE
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`Under Rule 26(b)(1), discovery must be “proportionate to the needs of the case” and must
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`account for “whether the burden or expense of the proposed discovery outweighs its likely
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`benefit.” Fed. R. Civ. P. 26(b)(1). “All discovery, even if otherwise permitted by the Federal
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`Rules of Civil Procedure because it is likely to yield relevant evidence, is subject to the court’s
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`obligation to balance its utility against its cost.” U.S. ex rel. McBride v. Halliburton Co., 272
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`F.R.D. 235, 240 (D.D.C. 2011). Specifically, a district court may “limit the frequency or extent
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`discovery requests is entitled to select the custodians it deems most likely to possess responsive
`information and to search the files of those individuals.”); Mortgage Resol. Servicing, LLC v.
`JPMorgan Chase Bank, N.A., 2017 WL 2305398, at *2 (S.D.N.Y. May 18, 2017) (“Absent
`agreement among the parties, then, the responding party is entitled to select the custodians most
`likely to possess responsive information and to search the files of those individuals.”).
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`7
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`of discovery” that is otherwise allowed if it determines that “the discovery sought is
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`unreasonably cumulative or duplicative,” “can be obtained from another source that is . . . less
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`burdensome[] or less expensive,” or that “the party has had ample opportunity to obtain the
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`information by discovery in the action.” Fed. R. Civ. P. 26(b)(2)(C).5
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`That is certainly the case here. ALDI’s request is unreasonably cumulative and the actual
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`information that ALDI seeks concerning pricing and production decisions has already been
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`produced from Tyson’s prior custodians. Those custodians also have documents and information
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`regarding “ALDI’s relative buying power, contracting, pricing, and other individualized issues”
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`relating to ALDI. (Mot. at 5.) Nothing has been “shielded from discovery.” (Id.) Indeed,
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`Tyson has already produced over 12,000 documents referencing Mr. Nash and almost 13,000
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`referencing ALDI. Moreover, to the extent that ALDI is concerned with what Mr. Nash told
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`ALDI, those communications have been produced by ALDI’s document custodians. See, e.g.,
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`Breuder v. Bd. of Trustees of Cmty. Coll. Dist. No. 502, 2019 WL 3386966, at *6-7 (N.D. Ill.
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`July 26, 2019) (denying request to add custodians where their relevant documents “would have
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`been . . . produced because they would have transmitted to current custodians in the ordinary
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`course of business.”). If ALDI’s point is that Mr. Nash interacted frequently with ALDI’s
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`document custodians or other document custodians, that argument also misses the mark: “[J]ust
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`because a proposed custodian exchanged a large number of emails with a current custodian does
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`not mean that the proposed custodian will have a significant [amount] of important, non-
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`5 The question presented in this dispute is not whether Mr. Nash may have information relevant
`to ALDI’s claims. Additional document custodians cannot be justified “simply by showing that
`each one had some relation to the events in question.” Enslin v. Coca-Cola Co., 2016 WL
`7042206, at *2 (E.D. Pa. 2016). That is particularly true in a case as sprawling as this one,
`where ALDI and its confederates claim that nearly every pricing and production decision made
`by 20 chicken companies for over a decade was the result of some sort of tacit conspiracy.
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`8
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`cumulative information.” Kleen Prods. LLC v. Packaging Corp. of Am., 2012 WL 4498465, at
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`*14 (N.D. Ill. Sept. 28, 2012).
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`More importantly, Mr. Nash also had no involvement with Tyson’s production decisions
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`and participation in the Georgia Dock. Nor was Mr. Nash the final decision-maker regarding
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`Tyson’s pricing to ALDI. But other Tyson document custodians, several of whom have been
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`deposed in this case, did have those responsibilities. And any discussions between Mr. Nash and
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`ALDI would of course be in ALDI’s files. Indeed, despite possessing the emails that Mr. Nash
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`exchanged with ALDI, ALDI cannot point to any type of information—let alone any specific
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`document—that is missing from Tyson’s document production. ALDI simply guesses that Mr.
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`Nash might have information on a broad set of “individualized issues” that might be relevant to
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`the claims and defenses in the case. (Mot. at 5.) Courts routinely deny motions to compel
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`additional document custodians where, as here, “it is difficult . . . to determine the utility of the
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`proposed discovery.” Kleen Prods., 2012 WL 4498465, at *14; see also McBride, 272 F.R.D. at
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`241 (“Without any showing of the significance of the non-produced e-mails, let alone the
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`likelihood of finding the ‘smoking gun,’ the [party’s] demands [for additional custodians] cannot
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`possibly be justified when one balances its costs against its utility.”); Garcia v. Tyson Foods,
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`Inc., 2010 WL 5392660, at *14 (D. Kan. Dec. 21, 2010) (“Plaintiffs must present something
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`more than mere speculation that responsive e-mails might exist in order to compel the searches
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`and production requested.”).6
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`6 ALDI’s reliance on Kleen is misplaced. Although the Court in Kleen permitted the addition of
`additional custodians, document discovery in that case was still ongoing and certain disputes
`regarding custodians and data sources had not yet been resolved. See Kleen Prods., 2012 WL
`4498465, at *3-4, 6-7. And the Court specifically cautioned the plaintiffs in Kleen that it
`“expect[ed] them to support any future custodian requests with specific evidence of the expected
`utility of the additional custodians derived from their review of existing documents.” Id. at *16
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`9
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`There is also no question that ALDI has had “ample opportunity to obtain the
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`information” it now seeks “by discovery in the action.” Fed. R. Civ. P. 26(b)(2)(C). In addition
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`to receiving 1.3 million documents detailing precisely why Tyson made particular pricing and
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`production decisions with respect to specific chicken products, Plaintiffs have taken the
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`depositions of senior Tyson employees with direct responsibility for making those decisions,
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`including depositions of the executives that were responsible for making final decisions on the
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`pricing that ALDI received. For example, Plaintiffs have deposed Tyson’s current CEO and two
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`former CEOs, a former COO, three former Senior Vice Presidents of Tyson’s Raw Poultry
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`business unit, which was responsible for sales to grocery chains like ALDI, a former Vice
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`President of Tyson’s Raw Poultry business unit responsible for pricing, a Director of Production
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`Planning, as well as Tyson’s Chief Integrated Supply Chain Officer.
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`ALDI filed its complaint in November 2020. The operative case schedule in November
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`2020, Scheduling Order No. 14, set the close of fact discovery on June 11, 2021. Only on May
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`24, 2021 did this Court extend the fact discovery deadline to July 31, 2021, noting “I'm not
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`looking for new discovery. I'm looking to complete discovery that is already underway,
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`including depositions.” (Ex. 2, May 24, 2021 Hr’g Tr. at 20:21-23.) ALDI nevertheless waited
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`almost seven months from filing its complaint to seek this discovery, and only did so on June 18,
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`2021—a week after fact discovery had been scheduled to close.
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`ALDI is an international grocery chain with substantial resources,7 represented by
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`experienced counsel that represents other DAPs in this case, and it had months to seek this
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`n.12. Despite the fact that discovery in this case is nearly complete, ALDI offers no such
`justification based on its review of the document production in this case.
`7 Aldi’s 2020 revenue was $109 billion—more than double Tyson’s. Compare Top Ten Retail
`Companies in 2020, Retail Insight Network (Sept. 25, 2020), https://www.retail-insight-
`network.com/features/top-ten-retail-companies-in-2020/, with Tyson Foods Reports Strong
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`10
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`discovery. ALDI offers no excuse for sitting on its hands. It had ample time to discover the
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`information that it now seeks, and its request for further documents and another deposition
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`should be denied. See, e.g., Skorychenko v. Tompkins, 2009 WL 3321013, at *1 (W.D. Wisc.
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`Oct. 13, 2009) (denying motion to compel where a party “had four months to conduct discovery”
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`and did not “offer[] any explanation for his failure to gather the information he sought.”).
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`And Tyson has spent millions of dollars collecting, searching, and producing millions of
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`documents in this case. Indeed, Tyson and its subsidiaries have shouldered the largest discovery
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`burden of any party to this case, with 59 custodians designated, 1.3 million documents produced,
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`eighteen 30(b)(1) witnesses deposed (with another pending), and two 30(b)(6) depositions
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`defended over parts of four days.
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`Ultimately, the discovery that ALDI seeks will be overly burdensome, time-consuming,
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`cost-intensive and result in this Court creating an ALDI-specific phase of discovery that will
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`only result in many DAPs making copy-cat requests that will unreasonably delay this case and
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`turn it even more so into a battle of attrition, not a contest of law and facts. It should be rejected.
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`For the foregoing reasons, ALDI’s Motion to Compel should be denied.
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`CONCLUSION
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`
`
`Fourth Quarter And Fiscal 2020 Results, Tyson Foods (Nov. 16, 2020),
`https://www.tysonfoods.com/news/news-releases/2020/11/tyson-foods-reports-strong-fourth-
`quarter-and-fiscal-2020-results.
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`11
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`Case: 1:16-cv-08637 Document #: 4865 Filed: 07/20/21 Page 12 of 13 PageID #:305853
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`Dated: July 20, 2021
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`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
`
`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.
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`12
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`Case: 1:16-cv-08637 Document #: 4865 Filed: 07/20/21 Page 13 of 13 PageID #:305854
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`CERTIFICATE OF SERVICE
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`I hereby certify that on July 20, 2021, a true and correct copy of the foregoing document
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`was electronically filed with the Clerk of the Court using CM/ECF system, which will send
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`notification of such filing to all counsel of record.
`
`
`
`
`
`
`/s/ Rachel J. Adcox
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`