Case: 1:19-cv-08318 Document #: 205 Filed: 12/23/20 Page 1 of 22 PageID #:2759
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`
`
`No. 19-cv-08318
`
`Hon. Virginia M. Kendall
`Hon. Gabriel A. Fuentes
`
`
`
`No. 20-cv-02295
`
`Hon. Virginia M. Kendall
`Hon. Gabriel A. Fuentes
`
`
`OLEAN WHOLESALE GROCERY
`COOPERATIVE, INC., et al.,
`
`
`
`v.
`
`AGRI STATS, INC., et al.,
`
`
`SANDEE’S BAKERY,
`
`
`
`v.
`
`AGRI STATS, INC., et al.,
`
`
`
`
`Plaintiffs,
`
`Defendants.
`
`
`Plaintiff,
`
`Defendants.
`
`DEFENDANTS’ MOTION FOR PROTECTIVE ORDER BARRING DISCOVERY
`BEYOND THE SCOPE OF THE CLAIM AT ISSUE IN THIS CASE
`
`
`

`

`Case: 1:19-cv-08318 Document #: 205 Filed: 12/23/20 Page 2 of 22 PageID #:2760
`
`
`I.
`
`II.
`
`III.
`
`IV.
`
`TABLE OF CONTENTS
`
`Page
`
`INTRODUCTION .............................................................................................................. 1
`
`PROCEDURAL BACKGROUND ..................................................................................... 2
`
`THE DISCOVERY AT ISSUE .......................................................................................... 3
`
`ARGUMENT ...................................................................................................................... 7
`
`A.
`
`B.
`
`Plaintiffs Cannot Establish the Relevance of the Challenged Discovery ............... 7
`
`The Challenged Discovery Will Impose a Disproportionate Burden on
`Defendants and Non-Parties ................................................................................. 11
`
`V.
`
`CONCLUSION ................................................................................................................. 13
`
`
`
`
`
`
`
`
`i
`
`

`

`Case: 1:19-cv-08318 Document #: 205 Filed: 12/23/20 Page 3 of 22 PageID #:2761
`
`
`
`
`
`CASES
`
`TABLE OF AUTHORITIES*
`
`Page(s)
`
`Agnew v. Nat’l Collegiate Athletic Ass’n,
`683 F.3d 328 (7th Cir. 2012) .....................................................................................................3
`
`Apsley v. The Boeing Co., No. 05-1368-MLB,
`2007 WL 163201 (D. Kan. 2007) ..............................................................................................9
`
`BankDirect Cap. Fin., LLC v. Cap. Premium Fin., Inc., No. 15 C 10340,
`2018 WL 946396 (N.D. Ill. Feb. 20, 2018) (Cole, M.J.) ...........................................................7
`
`Bartlett v. Deere & Co., No. 4:09CV3168,
`2010 WL 3789540 (D. Neb. Sept. 21, 2010) ...........................................................................11
`
`Bell Atl. Corp. v. Twombly,
`550 U.S. 544 (2007) .................................................................................................................12
`
`In re Broiler Chicken Antitrust Litig.,
`No. 16-CV-8637 (TMD) (N.D. Ill.) ...................................................................................10, 11
`
`In re Comp. of Managerial, Pro. & Tech. Emps. Antitrust Litig., No. 02-CV-2924
`(GEB),
`2008 WL 3887619 (D.N.J. Aug. 20, 2008) .........................................................................9, 10
`
`E.E.O.C. v. Harvey L. Walner & Assocs.,
`91 F.3d 963 (7th Cir. 1996) .......................................................................................................7
`
`Escobedeo v. Ram Shirdi Inc., No. 10 C 6598,
`2011 WL 13243990 (N.D. Ill. Mar. 16, 2011) ...........................................................................2
`
`Helping Hand Caregivers, Ltd. v. Darden Rests., Inc.,
`900 F.3d 884 (7th Cir. 2018) .....................................................................................................9
`
`Hyland v. HomeServices of Am., Inc., No. 3:05-CV-612-R,
`2011 WL 2532908 (W.D. Ky. June 24, 2011) ...........................................................................9
`
`In re Interest Rate Swaps Antitrust Litig., No. 16-MC-2704 (PAE),
`2018 WL 2332069 (S.D.N.Y. May 23, 2018) ...........................................................................7
`
`Motorola Sols., Inc. v. Hytera Commc’ns Corp.,
`365 F. Supp. 3d 916 (N.D. Ill. 2019) (Cole, M.J.) .....................................................................7
`
`
`* Unless otherwise noted, all emphasis added and internal citations and quotation marks omitted.
`
`
`
`– ii –
`
`

`

`Case: 1:19-cv-08318 Document #: 205 Filed: 12/23/20 Page 4 of 22 PageID #:2762
`
`
`
`TABLE OF AUTHORITIES—continued
`
`
`Mr. Frank, Inc. v. Waste Mgmt., Inc., No. 80 C 3498,
`1983 WL 1859 (N.D. Ill. July 7, 1983) (Decker, J.) ................................................................13
`
`Page(s)
`
`Ohio v. Am. Express Co.,
`138 S. Ct. 2274 (2018) ...........................................................................................................3, 8
`
`Olean Wholesale Grocery Coop., Inc. v. Agri Stats, Inc. et al.,
`No. 19-cv-08318 (N.D. Ill.) .......................................................................................................1
`
`In re Pork Antitrust Litig.,
`No. 18-CV-1776 (JRT) (D. Minn.) ..........................................................................................10
`
`Sandee’s Bakery v. Agri Stats, Inc. et al.,
`No. 20-cv-02295 (N.D. Ill.) .......................................................................................................1
`
`Sloane v. Gulf Interstate Field Servs., Inc., No. 4:16-cv-01571,
`2017 WL 11318794 (M.D. Pa. May 12, 2017) ........................................................................11
`
`Sobolik v. Briggs & Stratton Corp., No. 09-1785 (JRT/RLE),
`2010 WL 11640193 (D. Minn. Jul. 2, 2010), aff’d, 2010 WL 11640190 (D.
`Minn. July 26, 2010) ................................................................................................................11
`
`Todd v. Exxon,
`275 F.3d 191 (2d Cir. 2001).......................................................................................................9
`
`STATUTES
`
`47 U.S.C. § 551 ................................................................................................................................6
`
`OTHER AUTHORITIES
`
`Fed. R. Civ. P. 26 .............................................................................................................2, 3, 11, 13
`
`Fed. R. Civ. P. 26(b)(1)..............................................................................................................7, 11
`
`Fed. R. Civ. P. 26 56(f) ....................................................................................................................9
`
`Herbert Hovenkamp, The Rule of Reason, 70 Fla. L. Rev. 81, 90 (2018) .....................................10
`
`
`
`
`
`iii
`
`

`

`Case: 1:19-cv-08318 Document #: 205 Filed: 12/23/20 Page 5 of 22 PageID #:2763
`
`
`
`I.
`
`INTRODUCTION
`
`Purchasers of turkey products brought this case against several turkey companies (“Turkey
`
`Defendants”) and Agri Stats, a company that produces statistical reports about the agricultural
`
`industry. At the pleading stage, this Court rejected Plaintiffs’ assertion that they alleged a viable
`
`per se unlawful violation of the antitrust laws. Dkt. No. 173, Olean Wholesale Grocery Coop.,
`
`Inc. v. Agri Stats, Inc. et al., No. 19-cv-08318 (N.D. Ill.), Order 14-15.1 As a result, the only
`
`operative cause of action is a single rule-of-reason claim alleging an anticompetitive “information
`
`sharing” agreement described as follows:
`
`Plaintiffs allege that the Turkey Defendants entered into an agreement between
`2010 and 2017 to exchange competitively sensitive information—namely,
`production and sales data. [Complaint,] ¶ 3. They exchanged this data with one
`another through Agri Stats. (Id.).
`
`Order 2.
`
`Rather than focusing on proving the case that this Court has allowed to proceed, Plaintiffs
`
`have initiated sweeping discovery—including requests for personal phone records, calendars,
`
`travel logs, expense reports, text messages, and social media contacts—having no relationship
`
`whatsoever to the Agri Stats information sharing claim at issue. And this discovery is directed not
`
`just to Defendants but also to non-party entities such as telecommunications carriers and trade
`
`associations. Plaintiffs are using discovery to fish for evidence to support a non-existent
`
`conspiracy claim.
`
`To be sure, appropriate discovery as to the existing alleged Agri Stats information
`
`exchange claim likely will be extensive, with significant amounts of documents and data being
`
`
`1 Although the citations to the record throughout this motion are to the docket in Olean Wholesale Grocery
`Coop., Inc. v. Agri Stats, Inc. et al., No. 19-cv-08318 (N.D. Ill.), the arguments equally apply to Sandee’s
`Bakery v. Agri Stats, Inc. et al., No. 20-cv-02295 (N.D. Ill.).
`
`
`
`1
`
`

`

`Case: 1:19-cv-08318 Document #: 205 Filed: 12/23/20 Page 6 of 22 PageID #:2764
`
`
`
`produced in response to Agri Stats-related discovery requests.2 But, “while discovery [is] broad,
`
`it is not unlimited.” Escobedeo v. Ram Shirdi Inc., No. 10 C 6598, 2011 WL 13243990, at *1
`
`(N.D. Ill. Mar. 16, 2011). To allow Plaintiffs to obtain burdensome discovery on a non-existing
`
`claim untethered to any actual claim or defense would exceed the bounds of relevance and
`
`proportionality demanded by Rule 26. Now is the time to address this issue, while discovery is in
`
`its infancy and before parties and non-parties expend considerable resources collecting, reviewing
`
`and producing information not germane to Plaintiffs’ claim.
`
`Accordingly, Defendants request that this Court issue a protective order barring Plaintiffs
`
`from seeking discovery on (1) the specific discovery requests set forth below, (2) the dismissed
`
`per se claim, and (3) any purported “agreement” among Defendants other than the existing Agri
`
`Stats information sharing rule-of-reason claim.3
`
`II.
`
`PROCEDURAL BACKGROUND
`
`On October 19, 2020, this Court dismissed Plaintiffs’ putative claim asserting that
`
`Defendants entered into a per se unlawful agreement in violation of the antitrust laws. Order 14-
`
`15. As this Court observed, Plaintiffs’ per se claim consisted of “a conclusory paragraph,” id. at
`
`14, that “is not a plausible allegation.” Id. at 15.
`
`As a consequence, the only claim currently at issue is the alleged rule-of-reason violation
`
`relating to the exchange of information through Agri Stats. As this Court held, the rule-of-reason
`
`claim has three specific elements: whether (1) “the Turkey Defendants agreed to ‘regularly
`
`
`2 Many of Plaintiffs’ requests call for Agri Stats-related documents. See, e.g., Decl. of William Stallings
`(“Stallings Decl.”) Ex. 1, Requests 21-25 of All Plaintiffs’ Amended First Set of Requests for the
`Production of Documents. Such Agri Stats-specific requests are not at issue in this motion.
`3 On December 14, 2020, at 1:00 PM CST, counsel for Plaintiffs and Defendants met and conferred via
`telephone conference concerning the issues raised in this motion. The parties are at an impasse.
`
`
`
`2
`
`

`

`Case: 1:19-cv-08318 Document #: 205 Filed: 12/23/20 Page 7 of 22 PageID #:2765
`
`
`
`exchange detailed, timely, competitively sensitive and non-public information about their
`
`operations’ via Agri Stats,” (2) that Agri-Stats information exchange caused anti-competitive
`
`effects in a properly-defined antitrust market and (3) if so, those effects outweighed any pro-
`
`competitive benefits. See id. at 9-10 (quoting Compl. ¶ 147) & 15; see also id. at 9 (citing Agnew
`
`v. Nat’l Collegiate Athletic Ass’n, 683 F.3d 328, 335 (7th Cir. 2012)); Ohio v. Am. Express Co.,
`
`138 S. Ct. 2274, 2284 (2018) (Under the rule of reason, “the plaintiff has the initial burden to prove
`
`that the challenged restraint has a substantial anticompetitive effect that harms consumers in the
`
`relevant market. If the plaintiff carries its burden, then the burden shifts to the defendant to show
`
`a procompetitive rationale for the restraint.”). Accordingly, under Rule 26, discovery must relate
`
`to these issues.
`
`Plaintiffs have affirmatively told this Court that they do not intend to re-plead the per se
`
`allegations at this time. Accordingly, there is no general conspiracy alleged in their complaint,
`
`much less a conspiracy to fix prices or reduce supply. Nor have Plaintiffs alleged that Defendants
`
`took any action in furtherance of a conspiracy. While the complaint references that the Turkey
`
`Defendants had “frequent opportunities to communicate” regarding the alleged Agri Stats
`
`information-sharing agreement through events such as trade shows (see Dkt. No. 1, Compl. ¶¶ 22,
`
`124-30), it does not allege any improper meeting, communication, or other conduct.
`
`III. THE DISCOVERY AT ISSUE
`
`Instead of limiting their discovery to the rule-of-reason Agri Stats information-sharing
`
`claim, Plaintiffs propounded a litany of irrelevant requests to Defendants and non-parties alike,
`
`seeking information far afield from any issue to be litigated. These discovery requests are not
`
`limited to Agri Stats, the Turkey Defendants’ participation in Agri Stats, or whether the
`
`information exchanged through Agri Stats caused anticompetitive effects in a relevant antitrust
`
`market.
`
`
`
`3
`
`

`

`Case: 1:19-cv-08318 Document #: 205 Filed: 12/23/20 Page 8 of 22 PageID #:2766
`
`
`
`Requests to Defendants. Plaintiffs’ Amended First Set of Requests for the Production of
`
`Documents to the Turkey Integrator Defendants (Stallings Decl. Ex. 1) and First Set of
`
`Interrogatories to Producer Defendants (id. Ex. 2) include many intrusive and burdensome requests
`
`that seek, without qualification or limitation, “all” information, documents, and communications
`
`in areas having no relationship or relevance to the operative claim. We provide the full text of
`
`these examples to show the breadth and scope of the requests (emphasis added):
`
`INTERROGATORY NO. 1: For each individual identified in your Initial Disclosures and
`for each of Your Document Custodians, Identify all email addresses, social or
`industrial/business web-based media accounts (e.g., Facebook®, Twitter®, LinkedIn®
`Instagram®, Snapchat®, Cluster, or WhatsApp), cellular phone numbers, office phone,
`and facsimile numbers, or other telephone numbers (and applicable phone carriers for
`each telephone number) used by each such Employee regarding or relating to his or her
`work for You.4
`
`INTERROGATORY NO. 9: Identify every Industry Meeting and meeting of a Trade
`Association or Industry Conference attended by a Document Custodian, including when
`and where it occurred, the entity or organization that arranged the meeting, who from Your
`company attended, and any documents (e.g., agendas, minutes, or notes) that relate to the
`content of what was discussed at the meeting.5
`
`REQUEST NO. 4: All Documents or Communications between You and any other
`Defendant, Turkey Integrator, or Co-Conspirator relating to Competitive Conditions in the
`Turkey Industry.
`
`REQUEST NO. 5: All Communications and Documents relating to the scheduling,
`attendance, or otherwise referencing any in-person, telephonic, or other meeting between
`You and any other Defendant, Turkey Integrator, or Co-Conspirator.
`
`
`4 Defendants have notified Plaintiffs that Defendants will provide work email addresses and office phone
`numbers for each document custodian in response to Interrogatory No. 1. Defendants object to the
`remainder of the Interrogatory as irrelevant and disproportionate for the reasons stated herein.
`5 Plaintiffs propounded identical interrogatories to Defendant Agri Stats. Stallings Decl. Ex. 3, Pls.’ First
`Set of Interrogatories to Agri Stats, Inc. (Interrogatory Nos. 8 and 11).
`
`
`
`4
`
`

`

`Case: 1:19-cv-08318 Document #: 205 Filed: 12/23/20 Page 9 of 22 PageID #:2767
`
`
`
`REQUEST NO. 6: For each Document Custodian, all:
`
`a.
`
`b.
`
`c.
`
`d.
`
`e.
`
`h.
`
`electronic and hard copy diaries, calendars, appointment books or notes,
`notebooks, or to-do lists;
`
`contact information maintained in electronic or hard copy format, for any
`Person who is or was: (i) an owner, employee, consultant, officer, board
`member, Representative, or agent of a Turkey Integrator or Agri Stats; (ii)
`a Creditor Representative or Industry Analyst; (iii) an employee of a Trade
`Association; or (iv) an employee of any entity that falls within the
`definition of Industry Meeting.
`
`trip and travel logs and records, expense reports, and entertainment
`reports, including any other supporting Documents;
`
`bills, statements, records, and supporting Documents concerning local,
`long distance, and cellular telephone calls by such employees, including
`calls made using telephones not paid for by You (such as home office, fax,
`and personal telephone numbers, personal cellphones, and temporary pay-
`as-you go cellphones) if such telephones were used for business purposes;
`
`Documents relating to membership in any Trade Association or industry
`group or attendance at any Trade Association, Industry Meeting or
`Creditor Conference,
`including announcements, membership
`lists,
`presentations (including speaker notes), agendas, minutes, notes,
`attendance lists, and correspondence;
`
`Documents sufficient to show the Document Custodian’s complete contact
`information, including all phone numbers, social media user names or
`“handles,” and email addresses used by such persons for any business
`purposes, even if only sparingly[.]6
`
`
`REQUEST NO. 7: Copies of all Telephone Records in your possession, custody, or
`control, including Telephone Records of your main phone number(s), main fax number(s),
`and any phone number used as a switchboard for any of your relevant facilities such as
`your headquarters, administrative offices, Turkey Farms, Turkey Processing Facilities, and
`Turkey sales offices.
`
`REQUEST NO. 9: All Documents and Communications regarding the terms of all
`purchases, sales, trades, exchanges, or swaps of Turkey between You and any other Turkey
`Integrator, including any contracts, co-packing agreements, joint ventures, other
`agreements (whether formal or informal), and any contemplated, proposed, or actual bids.
`
`6 Plaintiffs propounded identical Requests for Production to Defendant Agri Stats. Stallings Decl. Ex. 4,
`All Pls.’ Amended First Set of Requests for Production of Documents to Defendant Agri Stats, Inc. (Request
`No. 22 a, b, and e).
`
`
`
`5
`
`

`

`Case: 1:19-cv-08318 Document #: 205 Filed: 12/23/20 Page 10 of 22 PageID #:2768
`
`
`
`REQUEST NO. 35: All Documents and Communications relating to any benchmarking
`or information sharing services relating to Turkey industry profitability, pricing,
`production, or supply other than Agri Stats or Express Markets, Inc. [an affiliate of Agri
`Stats].7
`
`REQUEST NO. 37: All Documents and Communications relating to the immediately
`prior Request [involving identification of proposed or actual mergers and acquisitions] that
`reflect the disclosure of any non-public information to another Turkey Integrator
`concerning Turkey Supply Factors, Turkey pricing, or any future Turkey supply plans,
`including documents made available to You or by You through an electronic “data room”
`associated with a proposed transaction.
`
`Subpoenas to Trade Associations. Plaintiffs also have issued subpoenas to four separate
`
`trade associations—the National Turkey Federation, North American Meat Institute, US Poultry
`
`and Egg Association, and US Poultry Export Counsel. Id. Ex. 5. Each has 17 overbroad requests
`
`covering, inter alia, organizational structure, membership, documents relating to all meetings,
`
`publications, and all communications with a “Turkey Integrator.” The term “Agri Stats” does not
`
`appear in any of these requests.
`
`Subpoenas to Phone Carriers. Plaintiffs are issuing subpoenas to the major telephone
`
`companies seeking information relating to Defendants’ calls and text messages and have informed
`
`Defendants that they intend to seek Court authorization under the Cable Communications Policy
`
`Act of 1984, 47 U.S.C. § 551, for such evidence.8 The breadth of these requests is staggering.
`
`Plaintiffs seek records of every call placed or received over a seven-year period for a set of phone
`
`numbers that includes each Defendant’s main company line. Notably, Plaintiffs’ proposed motion
`
`
`7 Similarly, Interrogatory No. 6 seeks detailed and granular information for every “Benchmarking Service
`or Price or Supply Index” in which each Defendant participated regardless of whether those services had
`any connection with Agri Stats.
`8 On December 14, 2020, Defendants notified Plaintiffs that they currently do not consent to Plaintiffs’
`motion for authorization as, for the reasons stated herein, the requested discovery is irrelevant and
`disproportionate to the needs of the case. However, Defendants agreed to withdraw their opposition if this
`Court denies the instant motion.
`
`
`
`6
`
`

`

`Case: 1:19-cv-08318 Document #: 205 Filed: 12/23/20 Page 11 of 22 PageID #:2769
`
`
`
`for authorization contains no discussion of the potential relevance, need, or proportionality for this
`
`information. These subpoenas do not seek information relating to Agri Stats, or any specific
`
`subject matter whatsoever. Instead, they seek telephone call meta-data that Plaintiffs presumably
`
`would hope to use to prove-up some per se price-fixing claim that is not before this Court.
`
`IV. ARGUMENT
`
`The complaint’s narrow focus on the alleged information exchange through Agri Stats and
`
`the putative anticompetitive effects flowing from it defines the boundaries of permissible
`
`discovery in this case. See Fed. R. Civ. P. 26(b)(1) (discovery must be “relevant to [a] party’s
`
`claim . . . and proportional to the needs of the case”). Most importantly here, courts are
`
`“unanimous in prohibiting discovery from being used as a ‘fishing expedition’” untethered to the
`
`specific claims in the case. BankDirect Cap. Fin., LLC v. Cap. Premium Fin., Inc., No. 15 C
`
`10340, 2018 WL 946396, at *4-5 (N.D. Ill. Feb. 20, 2018) (Cole, M.J.); E.E.O.C. v. Harvey L.
`
`Walner & Assocs., 91 F.3d 963, 971 (7th Cir. 1996). Discovery requests must be “carefully
`
`tailored to viable theories of relevance.” In re Interest Rate Swaps Antitrust Litig., No. 16-MC-
`
`2704 (PAE), 2018 WL 2332069, at *5 (S.D.N.Y. May 23, 2018).
`
`On a motion for protective order (just like a motion to compel), the party seeking discovery
`
`has the burden of demonstrating that the discovery is relevant to the claims and defenses in the
`
`litigation and proportional to the needs of the case. Motorola Sols., Inc. v. Hytera Commc’ns
`
`Corp., 365 F. Supp. 3d 916, 925 (N.D. Ill. 2019) (Cole, M.J.). Plaintiffs cannot establish either.
`
`A.
`
`Plaintiffs Cannot Establish the Relevance of the Challenged Discovery
`
`The legality of the alleged Agri Stats information-sharing agreement is, as this Court held,
`
`to be analyzed under the rule of reason, which requires “a fact-specific assessment of market power
`
`and market structure to assess the [agreement]’s actual effect on competition. The goal is to
`
`distinguish between restraints with anticompetitive effect that are harmful to the consumer and
`
`
`
`7
`
`

`

`Case: 1:19-cv-08318 Document #: 205 Filed: 12/23/20 Page 12 of 22 PageID #:2770
`
`
`
`restraints stimulating competition that are in the consumer’s best interest.” Am. Express Co., 138
`
`S. Ct. at 2284. None of the discovery Plaintiffs seek to which this motion is directed addresses
`
`those questions.
`
`Instead, Plaintiffs seek sweeping, irrelevant discovery. Stopped at the front door by this
`
`Court in the motion to dismiss decision, Plaintiffs now try to launch a discovery campaign to prove
`
`some non-existent per se conspiracy claim. Plaintiffs seek to misuse the discovery process in
`
`hopes of revealing hypothetical evidence to revive their abandoned claim. The scope of these
`
`improper discovery demands is vast and includes, without any sort of Agri-Stats subject-matter
`
`qualifier:
`
` Disclosure of all social media accounts used by each document custodian (Interrogatory 1,
`Request 6(h));
`
` Details regarding every trade association meeting, industry meeting, or industry conference
`attended by a document custodian (Interrogatory 9; Request 6(b), 6(e));
`
` All calendars, diaries, task lists, notebooks, travel logs, expense reports, and entertainment
`reports maintained by any document custodian (Request 6(a)-(c));
`
` Telephone numbers, telephone records, and telephone bills of all document custodians,
`including their “home office, fax, and personal telephone numbers,” and Defendants’ main
`phone and fax numbers (Requests 6(d), 7; Interrogatory 1 and Agri Stats Interrogatory 8);
`
` All documents about any communication between Defendants regardless of the subject and
`including correspondence about sales or purchases between Defendants, joint ventures, co-
`packing agreement, or proposed acquisitions (Requests 4, 5, 9, 37); and
`
` All documents and communications relating to any benchmarking or information sharing
`services other than Agri Stats. (Request 35; see also Interrogatory 6).
`
`And these requests do not include the numerous non-party subpoenas that Plaintiffs have already
`
`served, including subpoenas to multiple cellphone carriers and trade associations seeking the same
`
`or similar information, untethered to the rule-of-reason Agri Stats information exchange claim.
`
`
`
`8
`
`

`

`Case: 1:19-cv-08318 Document #: 205 Filed: 12/23/20 Page 13 of 22 PageID #:2771
`
`
`
`During meet-and confer discussions preceding
`
`this motion, Plaintiffs candidly
`
`acknowledged that they seek such discovery because they may choose to amend the complaint to
`
`bring back the per se claim. But Plaintiffs have no entitlement to discovery to develop new claims.
`
`Apsley v. The Boeing Co., No. 05-1368-MLB, 2007 WL 163201, at *7 (D. Kan. 2007). Nor may
`
`Plaintiffs seek such discovery hoping to uncover information about a theory different from the one
`
`alleged. As the Seventh Circuit explained, “the mere hope, without more, of revealing a ‘smoking
`
`gun’ is insufficient to support unbounded discovery.” Helping Hand Caregivers, Ltd. v. Darden
`
`Rests., Inc., 900 F.3d 884, 890 (7th Cir. 2018) (“[Discovery requests] based on nothing more than
`
`mere speculation . . . would amount to a fishing expedition.”); Hyland v. HomeServices of Am.,
`
`Inc., No. 3:05-CV-612-R, 2011 WL 2532908, at *2 (W.D. Ky. June 24, 2011) (denying discovery
`
`where “plaintiffs allege[d] a horizontal or parallel price fixing scheme, yet [sought] vertical
`
`information”).
`
`Plaintiffs relied extensively on Todd v. Exxon, 275 F.3d 191 (2d Cir. 2001), a well-known
`
`rule-of-reason information exchange case, in their Motion to Dismiss briefing. See, e.g., Dkt. No.
`
`155, Plaintiffs’ Opposition, at passim. That case addresses this exact situation here. After the
`
`Second Circuit’s decision on the motion to dismiss, the case was transferred and consolidated in
`
`New Jersey, under the caption In re Compensation of Managerial, Professional & Technical
`
`Employees Antitrust Litigation. In an unsuccessful attempt to resist summary judgment, plaintiffs
`
`filed a motion under Rule 56(f) seeking additional discovery (much like the discovery at issue
`
`here) concerning areas such as “face-to-face meetings among defendants’ senior compensation
`
`executives” and “direct exchanges of information among the defendants,” which they said could
`
`“create additional genuine issues of material [fact] as to whether defendants entered into an
`
`agreement . . . that . . . would subject the defendants to liability under the per se rule.” In re Comp.
`
`
`
`9
`
`

`

`Case: 1:19-cv-08318 Document #: 205 Filed: 12/23/20 Page 14 of 22 PageID #:2772
`
`
`
`of Managerial, Pro. & Tech. Emps. Antitrust Litig., No. 02-CV-2924 (GEB), 2008 WL 3887619,
`
`at *11 (D.N.J. Aug. 20, 2008). The court, noting that the plaintiff had brought a rule-of-reason
`
`case, rejected that argument, concluding, “Plaintiff simply has not previously alleged that this case
`
`involved any per se violations, much less a price-fixing agreement.” Id. at *12. Any efforts to
`
`take discovery concerning claims that were not in the case would be nothing more than a “fishing
`
`expedition.” See id.
`
`In seeking such discovery here, Plaintiffs take refuge in In re Broiler Chicken Antitrust
`
`Litig., No. 16-CV-8637 (TMD) (N.D. Ill.) (“Broilers”) arguing that “it defies logic for Defendants
`
`to assert that data from cell phones” relating to inter-defendant communications “would not be
`
`relevant.” See Dkt. No. 196, Joint Status Report 21. Indeed, Plaintiffs are following the same
`
`discovery playbook that they used in both Broilers and In re Pork Antitrust Litig., No. 18-CV-
`
`1776 (JRT) (D. Minn.) (“Pork”), including issuing blanket requests for phone records, trade
`
`association meetings, and other per se-related evidence, many of which are carbon copies of
`
`discovery promulgated in those cases. But the comparison does not hold. Those cases have per
`
`se claims involving alleged agreements on both price and output. This case does not. Plaintiffs
`
`themselves acknowledge the importance of that distinction:
`
`The pleading problem is generally different for per se cases than for rule of reason
`cases. In a per se case, the question is typically whether an anticompetitive
`agreement such as price fixing exists . . . . [B]y contrast, in a typical rule of reason
`case the existence of the agreement is not in dispute; rather the case turns on
`whether it is anticompetitive under the circumstances.
`
`See Dkt. No. 155, Pls.’ Opp’n to Motion to Dismiss 8 n.22 (citing Herbert Hovenkamp, The Rule
`
`of Reason, 70 Fla. L. Rev. 81, 90 (2018)).
`
`That distinction is dispositive here. Most per se conspiracy cases allege purely horizontal
`
`agreements formed, at least in part, through direct communications among defendants. But there
`
`is no such claim here. Rather, Plaintiffs’ operative claim alleges anticompetitive effects under the
`
`
`
`10
`
`

`

`Case: 1:19-cv-08318 Document #: 205 Filed: 12/23/20 Page 15 of 22 PageID #:2773
`
`
`
`rule of reason arising from an information exchange. As this Court noted in denying Plaintiffs’
`
`Motion to Reassign this case to the Broilers court, the “inquiry in this turkey antitrust case is
`
`entirely distinct from the inquiry required in Broiler Chickens.” Dkt. No. 178, Notification of
`
`Docket Entry 1. That difference necessarily affects the permissible scope of discovery. Sloane v.
`
`Gulf Interstate Field Servs., Inc., No. 4:16-cv-01571, 2017 WL 11318794, at *1 (M.D. Pa. May
`
`12, 2017) (“discovery should be tailored to the issues involved in the particular case”).
`
`To be sure, the complaint contains a few paragraphs regarding Defendants’ participation
`
`in trade associations, and asserts that Defendants had “frequent opportunities to communicate.”
`
`Compl. ¶¶ 22, 124-30. But Plaintiffs’ discovery requests relating to trade associations and
`
`“opportunities to communicate” do not relate to the alleged information exchange through Agri
`
`Stats. The “fact that a plaintiff’s complaint alleges an expansive theory of liability does not
`
`necessarily justify expansive discovery.” Bartlett v. Deere & Co., No. 4:09CV3168, 2010 WL
`
`3789540, at *2 (D. Neb. Sept. 21, 2010); Sobolik v. Briggs & Stratton Corp., No. 09-1785
`
`(JRT/RLE), 2010 WL 11640193, at *3 (D. Minn. Jul. 2, 2010), aff’d, 2010 WL 11640190 (D.
`
`Minn. July 26, 2010). Rule 26(b)(1) limits discovery to that relevant to Plaintiffs’ actual claim,
`
`not the discovery needed to prove each allegation no matter how untethered to a viable theory of
`
`liability. Bartlett, 2010 WL 3789540, at *2; Sobolik; 2010 WL 11640193, at *3. Opportunity
`
`evidence is irrelevant to the sole question left in this case—whether the information exchange
`
`through Agri Stats resulted in anticompetitive effects in a relevant antitrust market.
`
`B.
`
`The Challenged Discovery Will Impose a Disproportionate Burden on
`Defendants and Non-Parties
`
`Plaintiffs’ discovery requests also impose an undue burden, and thus, in addition to their
`
`irrelevance, fail Rule 26’s proportionality test. Courts recognize that discovery burdens are
`
`
`
`11
`
`

`

`Case: 1:19-cv-08318 Document #: 205 Filed: 12/23/20 Page 16 of 22 PageID #:2774
`
`
`
`particularly acute in antitrust cases. See, e.g., Bell Atl. Corp. v. Twombly, 550 U.S. 544, 546
`
`(2007).
`
`Were Plaintiffs’ r