Case: 1:20-cv-02295 Document #: 129 Filed: 01/22/21 Page 1 of 23 PageID #:2597
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`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`
`
`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.
`
`
`No. 19-cv-08318
`
`Hon. Virginia M. Kendall
`Hon. Gabriel A. Fuentes
`
`
`
`No. 20-cv-02295
`
`Hon. Virginia M. Kendall
`Hon. Gabriel A. Fuentes
`
`DEFENDANTS’ REPLY IN SUPPORT OF MOTION FOR PROTECTIVE ORDER
`BARRING DISCOVERY BEYOND THE SCOPE OF
`THE CLAIM AT ISSUE IN THIS CASE
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`
`
`
`
`
`

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`Case: 1:20-cv-02295 Document #: 129 Filed: 01/22/21 Page 2 of 23 PageID #:2598
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`I.
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`II.
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`TABLE OF CONTENTS
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`Page
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`INTRODUCTION .............................................................................................................. 1
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`ARGUMENT ...................................................................................................................... 2
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`A.
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`B.
`
`C.
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`
`
`D.
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`Now Is the Right Time For Guidance From the Court ........................................... 2
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`The Rule of Reason Does Not Allow For Unbridled Discovery ............................ 4
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`Plaintiffs Cannot Establish Relevance .................................................................... 5
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`1. Nature of the Information Exchanged............................................................. 6
`2. Market Definition ............................................................................................ 8
`3. Anticompetitive Effects ................................................................................. 10
`4. Agreement ..................................................................................................... 12
`The Challenged Discovery Is Not Proportional Because It Does Not Assist
`in Resolving the Issues in the Case ....................................................................... 13
`
`III.
`
`CONCLUSION ................................................................................................................. 14
`
`
`
`i
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`

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`Case: 1:20-cv-02295 Document #: 129 Filed: 01/22/21 Page 3 of 23 PageID #:2599
`
`
`
`Cases
`
`TABLE OF AUTHORITIES
`
`
`
`Page(s)
`
`Apsley v. The Boeing Co.,
`2007 WL 163201 (D. Kan. Jan. 18, 2007) .................................................................................2
`
`BankDirect Cap. Fin., LLC v. Cap. Premium Fin., Inc.,
`2018 WL 946396 (N.D. Ill. Feb. 20, 2018) ...........................................................................4, 5
`
`Bell Atl. Corp. v. Twombly,
`550 U.S. 544 (2007) ...................................................................................................................9
`
`In re Comp. Managerial, Pro. & Tech. Emps. Antitrust Litig.,
`2008 WL 3887619 (D.N.J. Aug. 20, 2008) ...............................................................................5
`
`DeLeon-Reyes v. Guevara,
`2020 WL 3050230 (N.D. Ill. June 8, 2020) .........................................................................3, 12
`
`Eternity Mart, Inc. v. Nature’s Sources, LLC,
`2019 WL 6052366 (N.D. Ill. Nov. 15, 2019) ......................................................................6, 12
`
`Forth v. Walgreen Co.,
`2019 WL 10255628 (N.D. Ill. July 10, 2019) ..........................................................................13
`
`In re Local TV Advert. Antitrust Litig.,
`2020 WL 6557665 (N.D. Ill. Nov. 6, 2020) ..............................................................................4
`
`Mass. Sch. of Law at Andover, Inc. v. Am. Bar Ass’n,
`857 F. Supp. 455 (E.D. Pa. 1994) ..............................................................................................5
`
`Olean Wholesale Grocery Coop., Inc. v. Agri Stats, Inc. et al.,
`No. 19-cv-08318 (N.D. Ill.), Motion to Dismiss Order .......................................................1, 12
`
`Quality Auto Painting Ctr. of Roselle, Inc. v. State Farm Indemn. Co.,
`917 F.3d 1249 (11th Cir. 2019) .................................................................................................9
`
`Todd v. Exxon Corp.,
`275 F. 3d 191 (2d Cir. 2001)................................................................................................5, 11
`
`United States v. U.S. Gypsum,
`438 U.S. 422 (1978) ...................................................................................................................4
`
`In re Wholesale Grocery Prods. Antitrust Litig.,
`2011 WL 1304610 (D. Minn. Apr. 6, 2011) ..............................................................................4
`
`
`
`– ii –
`
`

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`Case: 1:20-cv-02295 Document #: 129 Filed: 01/22/21 Page 4 of 23 PageID #:2600
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`
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`Other Authorities
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`TABLE OF AUTHORITIES—continued
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`Page(s)
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`Cable Communications Policy Act, 47 U.S.C. § 551 ......................................................................3
`
`
`
`iii
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`

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`Case: 1:20-cv-02295 Document #: 129 Filed: 01/22/21 Page 5 of 23 PageID #:2601
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`
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`I.
`
`INTRODUCTION
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`This case has a single rule of reason claim alleging anticompetitive information sharing
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`through Agri Stats.1 Plaintiffs, however, are using the discovery process to dramatically expand
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`the scope of this matter through discovery requests that are far afield from the Agri Stats service
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`at issue or its supposed anticompetitive effects.
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`Acting as if this Court did not dismiss their per se claim, Plaintiffs now trawl for any
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`information in an obvious effort to resurrect it or find new claims. For example, Plaintiffs request
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`from Defendants for a thirteen-year period and regardless of subject matter: “all telephone
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`records” including those for headquarters, administrative offices, farms, processing facilities and
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`sales offices; diaries, calendars, notebooks and “to-do lists” for all document custodians; and all
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`documents (including “agendas, minutes or notes”) of every industry meeting or trade association
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`event relating to turkeys. And Plaintiffs are serving similarly broad subpoenas on nonparties,
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`including sweeping requests to the major telephone carriers.
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`Plaintiffs assert that the challenged discovery is relevant to the information sharing claim.
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`Not so. The text of the requests—which Plaintiffs do not quote—are untethered to the rule of
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`reason claim. Tellingly, none of the challenged discovery requests at issue even mention Agri Stats
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`(except for one request seeking “all documents and communications” relating to information
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`services other than Agri Stats). Moreover, Plaintiffs’ contrived, post-hoc assertions that the
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`challenged discovery is relevant to “the nature of the information exchanged,” “market definition,”
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`“anticompetitive effects,” and “agreement” are belied by the fact that Plaintiffs propounded
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`
`1 “Plaintiffs allege that the Turkey Defendants entered into an agreement between 2010 and 2017 to
`exchange competitively sensitive information—namely, production and sales data. They exchanged this
`data with one another through Agri Stats.” Dkt. No. 173, Olean Wholesale Grocery Coop., Inc. v. Agri
`Stats, Inc. et al., No. 19-cv-08318 (N.D. Ill.), Motion to Dismiss Order at 2 (citation omitted). “Plaintiffs
`have only adequately alleged a Sherman Act violation under a rule of reason analysis.” Id. at 18.
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`
`
`1
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`

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`numerous discovery requests (not at issue in this motion) that directly and specifically cover those
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`very topics. Those requests are burdensome and disproportionate in their own right (and will be
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`the subject of future negotiations and meet and confers), but at least they have a facial relevance
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`to the claim at hand. The challenged discovery does not.
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`But the issues here go much farther than the specific challenged discovery requests already
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`propounded. It is clear that Plaintiffs seek to turn this case into an onerous discovery slog, delving
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`deeply into the files of parties and nonparties alike for evidence to support a claim that Plaintiffs
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`hope to bring, not the one that survived Rule 12. But Plaintiffs “have no entitlement to discovery
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`to develop new claims . . . that are not already identified in the pleadings.” Apsley v. The Boeing
`
`Co., 2007 WL 163201, at *7 (D. Kan. Jan. 18, 2007); see also Dkt. 205 (“Def. Mem.”) at 9.
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`Defendants therefore respectfully request that this Court enter a protective order barring discovery
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`beyond the scope of the claim at issue in this case.
`
`II.
`
`ARGUMENT
`A.
`
`Now Is the Right Time For Guidance From the Court
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`Plaintiffs claim this motion is premature. But their argument that future discussions
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`regarding custodians and search terms might somehow cure the challenged discovery’s defects
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`(Dkt. 209 (“Opp’n”) at 1) misses the mark and disregards their fundamental discovery burden.2
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`They have propounded reams of discovery that is facially irrelevant to the one claim that is in this
`
`case. Now is exactly the right time to establish reasonable parameters for Defendants’ objections
`
`and responses.
`
`
`2 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. Def.
`Mem. at 9.
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`
`
`2
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`

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`Case: 1:20-cv-02295 Document #: 129 Filed: 01/22/21 Page 7 of 23 PageID #:2603
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`Defendants’ opening memorandum provides many examples of the types of irrelevant
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`discovery that Plaintiffs already have served, including, for instance, subpoenas on AT&T and
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`Verizon seeking, in Plaintiffs’ words, “the production of documents relating to calls and text
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`messages made to and from the entities named as Defendants in this litigation” over a seven-year
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`period. They have also informed Defendants that they “intend to serve additional subpoenas on
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`telephone carriers seeking the same information regarding certain employees of Defendants”3 and
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`will be seeking an order from this Court authorizing the subpoenas under the Cable
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`Communications Policy Act, 47 U.S.C. § 551. See Def. Mem. at 6-7. While the telephone carriers
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`(and the numerous other nonparties subject to Plaintiffs’ subpoenas) will have a right to object,
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`nonparty recipients are not in the same position as a party to meaningfully assert relevancy
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`concerns. See DeLeon-Reyes v. Guevara, 2020 WL 3050230, at *3 (N.D. Ill. June 8, 2020)
`
`(Harjani, M.J.) (recognizing a defendant’s standing to seek a protective order to limit discovery
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`sought from a nonparty). By asserting that the issues raised by this current motion are better left
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`for a later date, Plaintiffs aim to short circuit meaningful review of these nonparty subpoenas. See
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`id. (waiting to “address the parties and nonparties’ relevancy and proportionality arguments . . .
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`would result in judicial inefficiency”).
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`Moreover, since the filing of this motion, Plaintiffs have amplified their improper
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`discovery efforts, including issuing a subpoena to an independent agricultural reporting service
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`seeking, without any substantive limitation, “all Communications and documents relating to
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`Communications with any Turkey Integrator” for the past thirteen years.4 It is clear that Plaintiffs’
`
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`3 Reply Decl. of William Stallings in Support of Defendants’ Motion for Protective Order Barring
`Discovery Beyond the Scope of the Claim at Issue In This Case (“Stallings Reply Decl.”), Exh. 1 at ¶ 1
`(Cable Act Motion); see also id., Exhs. 2, 3 (Rule 45 subpoenas issued to AT&T Corp. and Cellco
`Partnership d/b/a Verizon Wireless).
`4 Stallings Reply Decl., Exh. 4 (Rule 45 subpoena issued to Urner Barry).
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`
`
`3
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`

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`Case: 1:20-cv-02295 Document #: 129 Filed: 01/22/21 Page 8 of 23 PageID #:2604
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`
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`improper discovery efforts are only starting and will continue for the course of this litigation if left
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`unchecked.
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`Guidance from the Court now will provide all involved—parties and nonparties alike—the
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`discovery rules of the road for document requests, interrogatories and depositions as the case
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`progresses. Defendants’ proposed order seeks not only to address the specific contested discovery
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`but also to require that Plaintiffs’ future discovery must relate to the Agri Stats information
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`exchange rule of reason claim. This will allow for an orderly discovery process in which
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`negotiations regarding specific custodians, keywords, nonparty subpoenas, and other granular
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`issues will occur in light of the actual claim at issue and not what Plaintiffs would like it to be. See
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`BankDirect Cap. Fin., LLC v. Cap. Premium Fin., Inc., 2018 WL 946396, at *4 (N.D. Ill. Feb. 20,
`
`2018) (Cole, M.J.) (Judges “should not hesitate to exercise appropriate control over the discovery
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`process” in order to control “fishing expeditions.”).
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`B.
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`The Rule of Reason Does Not Allow For Unbridled Discovery
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`Plaintiffs assert that they are entitled to a “wide-ranging” scope of discovery under the rule
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`of reason. Opp’n at 3. But the rule of reason is not unconstrained, and it is very different from an
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`intensive hunt for evidence of a speculative unlawful per se agreement. The Supreme Court has
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`made clear that a rule-of-reason information sharing case hinges on the procompetitive and
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`anticompetitive effects of the exchanged information, with the most important factors being “the
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`structure of the industry involved and the nature of the information exchanged.” United States v.
`
`U.S. Gypsum, 438 U.S. 422, 441 n.16 (1978); see also In re Local TV Advert. Antitrust Litig., 2020
`
`WL 6557665 (N.D. Ill. Nov. 6, 2020) (Kendall, J.).
`
`Put simply, discovery under the rule of reason must relate to the alleged restraint at issue;
`
`it cannot be a free-ranging exploration of evidence of any possible antitrust violation in an entire
`
`industry. See, e.g., In re Wholesale Grocery Prods. Antitrust Litig., 2011 WL 1304610, at *2-3 (D.
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`
`
`4
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`

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`Minn. Apr. 6, 2011) (denying motion to compel production of agreements and communications
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`beyond the scope of the challenged agreement because the rule of reason analysis “turns wholly
`
`on the reasonableness of the [agreement] at issue”); Mass. Sch. of Law at Andover, Inc. v. Am. Bar
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`Ass’n, 857 F. Supp. 455, 459-60 (E.D. Pa. 1994) (allowing discovery in rule of reason case “into
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`accreditation standards alleged to have harmed [plaintiff]” but not into “other accreditation
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`standards, on which discovery is not allowed because [plaintiff] has not suggested how it was
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`harmed by them”).
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`Significantly, following the Second Circuit’s decision on a motion to dismiss in Todd v.
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`Exxon Corp., 275 F. 3d 191, 201 (2d Cir. 2001), the district court faced this very issue. See In re
`
`Comp. Managerial, Pro. & Tech. Emps. Antitrust Litig., 2008 WL 3887619, at *11-12 (D.N.J.
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`Aug. 20, 2008). It recognized the clear line separating appropriate rule-of-reason discovery from
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`improper requests seeking evidence of per se price-fixing claims, such as the requests that
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`Plaintiffs seek here. In that rule of reason case, the court denied “fishing expedition[s]” into topics
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`such as meetings among defendants and direct exchanges of information, as there was no operative
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`per se claim or allegations of a price-fixing agreement to which that discovery would be relevant.
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`See Def. Mem. at 9-10. Plaintiffs attempt to distinguish that holding by asserting that the case was
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`at a different stage in the litigation and that the court was going to grant summary judgment on an
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`unrelated issue. Opp’n at 9 n.4. But those are distinctions without a difference. The timing of the
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`discovery request and procedural posture of Compensation Antitrust do not in any way undermine
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`the court’s clear rejection of the improper effort to insert per se discovery into a rule of reason
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`case. The same is warranted here.
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`C.
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`Plaintiffs Cannot Establish Relevance
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`“While the federal discovery rules have an expansive reach, they are not without limits,
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`and relevancy is perhaps the most important of those constraints.” BankDirect, 2018 WL 946396,
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`
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`5
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`

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`Case: 1:20-cv-02295 Document #: 129 Filed: 01/22/21 Page 10 of 23 PageID #:2606
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`at *4 (internal citations omitted). The party requesting discovery bears the initial burden of
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`establishing its relevancy. Eternity Mart, Inc. v. Nature’s Sources, LLC, 2019 WL 6052366, at *2
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`(N.D. Ill. Nov. 15, 2019) (Harjani, M.J.).
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`Plaintiffs’ Opposition fails to establish relevancy. They argue that the challenged discovery
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`relates to (a) the nature of the information exchanged, (b) market definition, (c) anticompetitive
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`effects, and (d) the existence of an agreement. Opp’n at 4-10. The text of the challenged discovery
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`bears no reasonable relation to these topics.5 Moreover, the failure of these justifications is exposed
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`by the fact that these four topics are fully addressed in other discovery requests that are not at issue
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`in this motion.
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`Defendants’ opening memorandum sets forth the text of each of the challenged discovery
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`requests (Def. Mem. at 4-6) and we will not repeat them here. But even a cursory review of the
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`requests shows that Plaintiffs’ relevancy claims fail.
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`1.
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`Nature of the Information Exchanged
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`None of the challenged discovery requests actually seek information about the nature of
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`the alleged Agri Stats information exchange itself, so Plaintiffs create a straw man that frames the
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`challenged discovery as relating to whether Defendants “had sufficient information to de-
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`anonymize the Agri Stats reports and identify specific companies and transactions” (Opp’n at 4),
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`as well as to comparisons of “the type of information that Defendants share internally to what they
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`shared with their competitors or the general public” (id. at 6). These are baseless rationales.
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`The requests are aimed at searching for information about imagined agreements, meetings
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`and discussions among Defendants rather than their use of Agri Stats. Such requests are similar to
`
`
`5 The full text of all of Plaintiffs’ 53 document requests and ten interrogatories to the Turkey Defendants
`are in the attachments to Defendants’ opening memorandum. See Stallings Decl. Exhs. 1-2, Dkt. Nos. 205-
`2 and 205-3. The text of Plaintiffs’ eleven interrogatories and 35 document requests to Agri Stats are
`Exhibits 3 and 4 to the Stallings Declaration. Id., Dkt. Nos. 205-4 and 205-5.
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`
`
`6
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`

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`Case: 1:20-cv-02295 Document #: 129 Filed: 01/22/21 Page 11 of 23 PageID #:2607
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`
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`ones typically associated with plaintiffs seeking “opportunity to conspire” evidence to support a
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`per se price fixing agreement claim. Plaintiffs admit as much. For example, they claim that
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`Interrogatories 1 and 9 seek “information regarding the methods by which Defendants could
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`communicate with one another, as well as potential opportunities to meet.” Opp’n at 5. RFPs 4-7
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`request “similar information, including communications between Defendants and other Turkey
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`Integrators, documents showing meetings between Defendants, and contact information, travel
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`logs, and other information that would also demonstrate potential opportunities for Defendants to
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`communicate.” Id. Interrogatory 6 and RFPs 35 and 37 seek “documents related to other ways in
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`which Defendants exchange information, including the documents related to inter-Defendant sales
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`or exchanges of turkey, Defendants’ participation in other price and benchmarking services, and
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`the disclosure of other non-public information, including information related to proposed or actual
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`mergers and acquisitions.” Id. None of these requests go to the nature of the information exchanged
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`through Agri Stats. The challenged requests do not even mention Agri Stats, much less the nature
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`of the information each Turkey Defendant provided to Agri Stats, how the Agri Stats reports were
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`used, or efforts to de-anonymize them. And in no sense does seeking “all telephone records” from
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`Defendants (RFP 7) and issuing subpoenas for records of all calls and text messages from
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`telephone carriers provide anything of relevance to assessing the effects of the Agri Stats claim.
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`
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`The pretextual nature of Plaintiffs’ justifications is made clear by the fact that Plaintiffs
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`propounded broad and sweeping document requests and interrogatories directly relating to the
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`nature of the Agri Stats information and, specifically, the “de-anonymization” issue (emphases
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`added):
`
` RFP 21. All Documents or Communications relating to any consideration of the risks
`and/or benefits of providing information to or receiving information from Agri Stats,
`the anonymity of individual Turkey Integrator data received from Agri Stats, any
`reverse-engineering processes employed by You to de-anonymize Agri Stats data, any
`
`
`
`7
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`

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`Case: 1:20-cv-02295 Document #: 129 Filed: 01/22/21 Page 12 of 23 PageID #:2608
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`contracts or agreements with Agri Stats, any presentations, Communications, or
`meeting minutes received from or provided to Agri Stats, and all copies of reports
`received from Agri Stats.
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` RFP 22. All Documents or Communications with Agri Stats . . . .
`
` RFP 23. All Documents that You received from Agri Stats . . . .
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` RFP 24. All Documents or Communications relating to meetings or other interactions
`with Agri Stats . . ., including . . . meeting minutes or calendar invites.
`
` RFP 25. All Documents or Communications relating to Your usage of materials, such
`as reports, provided by Agri Stats . . . .
`
` RFP 26. All Documents relating to any processes or attempts by You to de-anonymize
`Agri Stats data.
`
` RFP 27. All Documents relating to the anonymity of individual Turkey Integrator data
`received from Agri Stats.
`
` RFP 31. All Documents or Communications relating to Your usage of information
`received from Agri Stats . . . in Your business operations.
`
` RFP 32. All Documents or Communications relating to Your usage of information
`received from Agri Stats . . . in pricing of Your products.
`
` Interrogatory 7. Describe any information You received from Agri Stats, Inc. relating
`to other Turkey Producers’ . . . data that was not anonymized or through which you
`were informed and/or determined the identity of specific data . . . including, but not
`limited to, any unique numeric identifiers or descriptors that permitted the
`identification of another Turkey Producer’s data.
`
`These requests directly relate to the issues associated with the “nature of the information
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`exchanged.” The challenged discovery does not.
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`2.
`
`Market Definition
`
`Plaintiffs next argue that the challenged discovery is “relevant to defining the appropriate
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`market,” and that the requests seek information that “relates to the ‘price, use, and qualities’ of
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`turkey, which goes to the very heart of ‘reasonable interchangeability.’” Opp’n at 6 (citing Todd,
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`275 F. 3d at 201). But the challenged discovery does no such thing.
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`
`
`8
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`

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`Case: 1:20-cv-02295 Document #: 129 Filed: 01/22/21 Page 13 of 23 PageID #:2609
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`Plaintiffs point to Interrogatory 9 and RFP 6(e), arguing that they “seek information about
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`documents regarding membership in any trade organization or industry group.” Id. However,
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`membership in trade associations is legitimate procompetitive activity,6 and membership itself
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`bears no relevance to market definition. Plaintiffs then assert that documents related to trade
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`associations could be relevant to “price, use and quality” information necessary to define a market,
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`but the requests at issue have no such limitation. Instead, they seek all membership lists and all
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`documents relating to trade associations regardless of subject matter or relevance.
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`Plaintiffs then assert that RFPs 4 (“all documents and communications” between
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`defendants about competitive conditions), 9 (“all documents and communications” relating to the
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`sale or transfer of turkey from one defendant to another, including through “co-packing
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`arrangements” and “joint ventures”), 35 (benchmarking or information sharing services other than
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`Agri Stats) and 37 (potential M&A activity) are relevant to “interchangeability” of Defendants’
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`products. Opp’n at 6. This rationale is designed to hide the fact that Plaintiffs seek any and all
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`defendant-to-defendant communications in the hopes of finding some indicia of an agreement to
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`resurrect their per se claim. This was the exact issue in Compensation Antitrust, where the
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`plaintiffs sought discovery on “face-to-face meetings among defendants” and “direct exchanges
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`of information among defendants.” The court there recognized it for the “fishing expedition” that
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`it was, as is the case here.
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`6 Membership in a trade association is not significant from an antitrust perspective. Bell Atl. Corp. v.
`Twombly, 550 U.S. 544, 567 n.12 (2007); see also Quality Auto Painting Ctr. of Roselle, Inc. v. State Farm
`Indemn. Co., 917 F.3d 1249, 1270 n.22 (11th Cir. 2019) (noting importance of antitrust laws not being used
`to “discourage all trade associations, industry gatherings, or joint ventures” and “imperil reasonable and
`procompetitive collaborations,” which “would be inconsistent both with the purposes of the antitrust laws
`and with well-established Supreme Court permission for many kinds of collaboration among competitors”)
`(internal quotation omitted).
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`
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`9
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`

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`Case: 1:20-cv-02295 Document #: 129 Filed: 01/22/21 Page 14 of 23 PageID #:2610
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`Moreover, Plaintiffs have propounded broad, sweeping discovery requests (not being
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`challenged here) directly related to market definition, including “price, use, and quality,”
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`“competitive conditions,” “interchangeability,” and production and supply of turkey (emphases
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`added):
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` RFP 10. “All Documents” relating to regular reports about Turkey, including costs,
`distribution channels, demand, and detailed financial data regarding profits, revenues,
`and loss.
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` RFP 12. All Documents relating to actual or potential substitutes for Turkey.
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` RFP 13. All Documents relating to the elasticity of supply, demand, or price of Turkey.
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` RFP 14. All Documents relating to the interchangeability of Turkey products sold by
`different Turkey Integrators.
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` RFP 15. All Documents relating to vertical integration in the Turkey market.
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`Plaintiffs nowhere explain in their opposition what “market definition” holes the
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`challenged discovery would fill that are not already covered by the above requests. There are none.
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`The resulting inference is clear that Plaintiffs never had the intention of using the challenged
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`discovery to obtain “market definition” evidence; instead, it was designed to seek irrelevant
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`information beyond the scope of the Agri Stats claim.
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`3.
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`Anticompetitive Effects
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`Plaintiffs’ attempts to demonstrate that the challenged discovery is “necessary to show the
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`anticompetitive effects that the information exchange had on the market” (Opp’n at 7), should also
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`be rejected. As discussed above, most of the challenged requests that Plaintiffs seek to justify as
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`relevant to “anticompetitive effects,” are instead broad fishing expeditions for information
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`regarding any meetings whatsoever between Defendants, untethered to the actual information
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`exchange claim that survived Rule 12 in this case.
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`
`
`10
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`Case: 1:20-cv-02295 Document #: 129 Filed: 01/22/21 Page 15 of 23 PageID #:2611
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`Plaintiffs rely on Todd v. Exxon to support Interrogatories 1 and 9 and RFPs 4, 5, 6, 7, and
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`the phone carrier subpoenas. They argue that these requests will provide “information regarding
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`actual meetings and opportunities to meet between Defendants . . . [t]he frequency of these
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`meetings, as well as the information exchanged in them.” Opp’n at 7. However, the complaint in
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`Todd contained specific allegations of multiple meetings among defendants to discuss the actual
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`information that was being exchanged, accompanied by “assurances” by the defendants that the
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`information would be used. Todd, 275 F.3d at 213. Indeed, Judge [now Justice] Sotomayor stressed
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`that “[m]eetings, of course, are not inherently unlawful” but it was the specific “context” alleged
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`in the complaint that raised the potential for anticompetitive effects. Id. In contrast, here, there are
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`no such allegations of meetings (much less frequent meetings) among defendants to discuss Agri
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`Stats information. Moreover, Plaintiffs do not tether the discovery requests to any Agri Stats-
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`specific information.
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`Similarly, Plaintiffs claim that they need “all documents and communications” relating to
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`any turkey-related benchmarking or information service other than Agri Stats (RFP 35) so that
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`they can compare them to Agri Stats. Opp’n at 8. But this is a rule-of-reason case about the
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`anticompetitive effects of Agri Stats, not these other services. As such, Plaintiffs’ requests are
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`irrelevant. See, § II.B. (citing cases where courts in rule of reason cases have refused far-reaching
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`discovery beyond the restraint at issue).7
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`Contrary to Plaintiffs’ assertions that the challenged requests are necessary to prove
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`“anticompetitive effects,” Plaintiffs have already covered this area in other requests that are not at
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`issue in this motion (emphases added):
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`7 Plaintiffs also argue that RFP 9 goes to whether each Defendant’s products are “indistinguishable” from
`one another. Opp’n at 8. This is the same argument, addressed above, that Plaintiffs made relating to market
`definition (claiming RFP 9 was relevant to whether products were “interchangeable”).
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`Case: 1:20-cv-02295 Document #: 129 Filed: 01/22/21 Page 16 of 23 PageID #:2612
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` RFP 16. All Documents concerning the costs of and potential obstacles to entering
`the Turkey market, . . . .
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` RFP 17. All Documents concerning the identity of any actual or potential entrant(s)
`into the Turkey market and any barriers, obstacles or difficulties facing the actual or
`potential entrant(s).
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` RFP 18. All Documents concerning the existence, or lack thereof, of imports of Turkey
`into the United States.
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` RFP 19. All Documents utilized or generally referred to by Your Management or Sales
`Personnel for quoting, changing, or setting the prices or the terms and conditions for
`sale of Turkey, . . . .
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` RFP 20. All Documents relating to or communicating Turkey price announcements
`[and] price changes, . . . and any other Communications concerning Turkey prices.
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` RFP 33. All Documents relating to Competitive Conditions in the market for Turkey
`[including Documents concerning 15 topics relating to “competitive conditions”] . . . .
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` RFP 34. All Documents concerning Turkey supply rationalization, industry
`leadership, industry discipline, production discipline, supply discipline, capacity
`discipline, . . . .
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`4.
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`Agreement
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`Plaintiffs do not cite any of the challenged discovery requests as being relevant to their
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`“agreement” justification. See Opp’n at 8-9. That is with good reason as none are. Plaintiffs argue
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`that “attendance at various trade shows and events would be relevant to showing an agreement
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`between the parties.” Id. at 9. Plaintiffs, though, must show an agreement relating to the Agri Stats
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`information exchange, not any speculative “agreement” untethered to any fact in the case. See
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`Eternity Mart, 2019 WL 6052366, at *3 (“The basis for these discovery requests is speculative, as
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`evidenced by Nature’s Sources statements about what the discovery sought ‘could very well,’ or
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`‘[p]erhaps’ show.”); DeLeon-Reyes, 2020 WL 3050230, at * 7 (“[G]uesswork does not establish
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`relevance, nor does it provide an example of why the requested information is relevant.”).
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`In any event, Plaintiffs already propounded the following discovery requests (not at issue
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`in this motion) that are designed to seek “agreement” evidence relating to Agri Stats:
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`Case: 1:20-cv-02295 Document #: 129 Filed: 01/22/21 Page 17 of 23 PageID #:2613
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` RFP 21. All Documents or Communications relating to any consideration of the risks
`and/or benefits of providing information to or receiving information from Agri
`Stats, . . . any contracts or agreements with Agri Stats, . . . .
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` R