Case: 1:21-cv-03763 Document #: 1 Filed: 06/21/21 Page 1 of 13 PageID #:1
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`UNITED STATES DISTRICT COURT
`DISTRICT OF MAINE
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`No.
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`MOTION OF HAGENS BERMAN
`SOBOL SHAPIRO LLP, LOCKRIDGE
`GRINDAL NAUEN, P.L.L.P, AND ON
`POINT INVESTIGATIONS, LLC TO
`QUASH SUBPOENA; MEMORANDUM
`IN SUPPORT OF MOTION TO QUASH
`SUBPOENA
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`Plaintiffs,
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`OLEAN WHOLESALE GROCERY
`COOPERATIVE, INC., JOHN GROSS AND
`COMPANY, INC., and MAPLEVALE
`FARMS, INC.,
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`v.
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`AGRI STATS, INC., BUTTERBALL LLC,
`CARGILL, INC., CARGILL MEAT
`SOLUTIONS CORPORATION, COOPER
`FARMS, INC., FARBEST FOODS, INC.,
`FOSTER FARMS, LLC, FOSTER POULTRY
`FARMS, THE HILLSHIRE BRANDS
`COMPANY, HORMEL FOODS
`CORPORATION, HOUSE OF RAEFORD
`FARMS, INC., PERDUE FARMS, INC.,
`PERDUE FOODS LLC, TYSON FOODS,
`INC., TYSON FRESH MEATS, INC. and
`TYSON PREPARED FOODS, INC.,
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`Defendants
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`Case: 1:21-cv-03763 Document #: 1 Filed: 06/21/21 Page 2 of 13 PageID #:2
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`TABLE OF CONTENTS
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` Pages
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`I. 
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`II. 
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`III. 
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`IV. 
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`INTRODUCTION ...............................................................................................................1 
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`FACTUAL BACKGROUND ..............................................................................................3 
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`JURISDICTION ..................................................................................................................6 
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`ARGUMENT .......................................................................................................................7 
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`A. 
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`The Subpoena Should Be Quashed Because It Seeks Materials Protected by
`Attorney Work Product ............................................................................................7 
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`V. 
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`CONCLUSION ..................................................................................................................10 
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`Pursuant to Rules 26(c) and 45(d) of the Federal Rules of Civil Procedure, Hagens
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`Berman Sobol Shapiro LLP, Lockridge Grindal Nauen, P.L.L.P. and On Point Investigations,
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`LLC (the “Movants”), move this Court to quash the subpoena for documents issued to the
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`Movants and/or for a Protective Order.
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` The May 21, 2021 subpoena for documents served on behalf of the Defendants Agri
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`Stats, Inc., Butterball LLC, Cargill, Inc., Cargill Meat Solutions Corporation, Cooper Farms,
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`Inc., Farbest Foods, Inc., Foster Farms, LLC, Foster Poultry Farms, The Hillshire Brands
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`Company, Hormel Foods Corporation, House of Raeford Farms, Inc., Perdue Farms, Inc., Perdue
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`Foods LLC, Tyson Foods, Inc., Tyson Fresh Meats, Inc. and Tyson Prepared Foods, Inc.
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`(hereinafter, “Defendants”), should be quashed. The subpoena requires the Movants to disclose
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`materials protected by the attorney work product privilege in violation of Federal Rule of Civil
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`Procedure 45(d)(3)(A)(iii).
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`For the reasons set forth in the accompanying Memorandum, the Movants respectfully
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`request that this Court grant their motion and quash the subpoena for documents or, in the
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`alternative, enter an appropriate Protective Order.
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`Pursuant to Local Rule 37(a)(1), counsel for the Movants attempted to communicate with
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`multiple counsel from different law firms representing Defendants in an effort to meet and confer
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`regarding the scope of the subpoena. However, the Movants and Defendants were unable to
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`reach an agreement.
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`I.
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`INTRODUCTION
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`Hagens Berman Sobol Shapiro LLP (“Hagens Berman”) and Lockridge Grindal Nauen,
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`P.L.L.P. (“Lockridge”) are counsel of record for a putative class of direct purchasers in the
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`Olean Wholesale Grocery Cooperative et al v. Agri Stats, Inc. et al, No. 1:19-cv-08318 (N.D.
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`Ill.) (“Turkey”).1 Prior to filing the complaint in that case, counsel retained On Point
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`Investigations, LLC, (“On Point”) a private investigation firm, to assist in conducting a factual
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`investigation. On Point’s investigation was primarily performed by Lael Henterly (“Henterly”), a
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`licensed private investigator. As part of that factual investigation, On Point and Henterly
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`interviewed confidential witnesses and regularly communicated with counsel regarding the
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`investigation. The subsequently filed complaint contained factual allegations based on the work
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`performed by On Point and Henterly.
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`The Supreme Court has long specifically recognized the important role that investigators
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`play in the adversarial process, and ruled that the attorney work product privilege extends to their
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`work: “attorneys often must rely on the assistance of investigators and other agents in the
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`compilation of materials in preparation for trial. It is therefore necessary that the [attorney work
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`product] doctrine protect material prepared by agents for the attorney as well as those prepared
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`by the attorney himself.”2 Thus, courts routinely hold that materials prepared by investigators,
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`such as summaries of interviews with confidential witnesses, is protected by the attorney work
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`product privilege. See Hatamian v. Advanced Micro Devices, Inc., No. 14-cv-00226-YGR(JSC),
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`2016 WL 2606830, at *3 (N.D. Cal. May 6, 2016) (Work product protection is not limited to
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`attorneys, either; as long as the documents were created in anticipation of litigation, the doctrine
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`applies to investigators and consultants working for attorneys.) (collecting cases).
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`Contrary to this long-standing precedent, Defendants have issued a subpoena to private
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`investigators retained by Plaintiffs’ counsel that seeks almost entirely attorney work product. For
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`example, Defendants’ subpoena requests materials such as “all communications with Plaintiffs’
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`1 Minute Entry, June 16, 2020, ECF No. 143.
`2 United States v. Nobles, 422 U.S. 225, 238-39 (1975).
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`Counsel of Record relating to Turkey” and all notes or memoranda relating to the investigation
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`that On Point and Henterly conducted. Pierce Decl.,3 Ex. A. This is exactly the kind of material
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`that courts have specifically recognized is protected by the attorney work product privilege. See
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`In re Grand Jury Subpoena (Mark Torf/Torf Env't Mgmt.), 357 F.3d 900, 907 (9th Cir. 2004)
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`(“The Supreme Court has held that the work product doctrine applies to documents created by
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`investigators working for attorneys, provided the documents were created in anticipation of
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`litigation.”). And, indeed, production of this material – such as communications between
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`attorneys and investigators that may reveal attorneys’ mental impressions and theories - would
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`wreak havoc on the adversarial process, which is exactly the harm that the Supreme Court
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`devised the attorney work product privilege to prevent. See Hickman v. Taylor, 329 U.S. 495,
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`510–11 (1947) (“Not even the most liberal of discovery theories can justify unwarranted
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`inquiries into the files and the mental impressions of an attorney . . . it is essential that a lawyer
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`work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and
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`their counsel.”)
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`Defendants’ subpoena should therefore be quashed because the only relevant materials
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`that it seeks are protected by the attorney work-product privilege.
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`II.
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`FACTUAL BACKGROUND
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`Lockridge and Hagens Berman are counsel of record for a putative class of direct
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`purchasers in the Turkey Antitrust litigation, which was first filed on December 19, 2019. The
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`named plaintiffs in this litigation are Olean Wholesale Grocery Cooperative Inc., John Gross and
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`3 “Pierce Decl.” refers to the Declaration of Rio S. Pierce in Support of Motion of Hagens
`Berman Sobol Shapiro LLP, Lockridge Grindal Nauen, P.L.L.P. and On Point Investigations,
`LLC to Quash Subpoena, concurrently filed herewith.
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`Company, Inc., and Maplevale Farms Inc. Lockridge is also counsel of record for each of the
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`named plaintiffs in the In re Broiler Antitrust Litig., No. 16-cv-08637 (N.D. Ill.) (“Broiler”),
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`which was first filed in September 2, 2016 and the In re Pork Antitrust Litig., 18-cv-1776
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`(JRT/HB) (“Pork”) which was first filed in June 28, 2018. Hagens Berman is counsel of record
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`for putative classes of end user consumers in both cases as well.
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`A central allegation in both the Broiler and Pork antitrust litigation matters is that
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`Defendants, chicken and pork manufactures, anticompetitively exchanged with each other highly
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`confidential information regarding their business operations through Agri Stats, Inc., a third
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`party benchmarking service.4 Public information regarding Agri Stats is extremely limited, but it
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`is known that Agri Stats also offers benchmarking services in the turkey industry.
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`Lockridge and Hagens Berman began investigating the possibility of bringing claims on
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`behalf of turkey purchasers who were harmed by anticompetitive conduct in 2018. Pierce Decl.,
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`¶ 5. In particular, Lockridge investigated the possibility of bringing claims on behalf of the
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`named plaintiffs that it represented in the Broiler and Pork litigations for their purchases of
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`turkey. In furtherance of its investigation, Hagens Berman retained On Point in November 2019
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`to conduct a factual investigation of the turkey industry. On Point then used a private
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`investigator, Lael Henterly, in furtherance of that investigation, including conducting
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`4 See In re Pork Antitrust Litig., 495 F. Supp. 3d 753, 766 (D. Minn. 2020) (“Defendants
`were able to carry out this conspiracy in two ways. First, “Defendants exchanged detailed,
`competitively sensitive, and closely guarded non-public information about prices, capacity, sales
`volume, and demand through their co-conspirator, Defendant Agri Stats.”); In re Broiler Chicken
`Antitrust Litig., 290 F. Supp. 3d 772, 800 (N.D. Ill. 2017) (“Plaintiffs clearly allege, however,
`that the information provided by Agri Stats simply facilitated the conspiracy. It was a tool
`Defendants used to help implement their conspiracy.”).
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`confidential witness interviews with former employees of the Defendants. Hagens Berman
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`communicated with On Point and Henterly regarding the investigation.
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`Hagens Berman and Lockridge Grindal subsequently formalized their representation of
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`named plaintiffs Olean Wholesale Grocery Cooperative Inc., and John Gross and Company, Inc.,
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`as class representatives for the Turkey antitrust litigation in December 2019.5 Pierce Decl., ¶ 7.
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`The complaint was filed on December 19, 2019. Pierce Decl., Ex. A. The complaint centered on
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`Defendant turkey manufacturers’ anticompetitive usage of Agri Stats to exchange confidential
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`business information between themselves. The complaint included factual allegations based on
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`interviews with three confidential witnesses that detailed Defendants’ usage of Agri Stats. The
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`Court denied Defendants’ motion to dismiss on October 19, 2020. Plaintiffs identified the three
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`confidential witnesses in their initial disclosures, and subsequently confirmed to Defendants that
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`the confidential witnesses were included in Plaintiffs’ initial disclosures. Pierce Decl., ¶ 8. On
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`May 21, 2021, Defendants initiated the process for service of third party subpoenas for On Point
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`and Henterly. Defendants’ subpoena to On Point listed its address as 134 Cider Hill Road, York,
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`Maine 03909. Defendants’ subpoena requested the following categories of documents (1) all
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`documents relating to the turkey industry and the named Defendants (requests 2 & 8); (2) all
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`documents relating to witnesses contacted as part of the investigation (requests 3, 4, 5, & 6); and
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`(3) all documents relating to the investigation, including communications with attorneys, notes or
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`memoranda (requests 1, 9 & 10). Defendants’ subpoena commanded that documents be produced
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`in Washington, D.C.
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`5 Plaintiff Maplevale Farms was subsequently added as a named class representative through
`joint stipulation on March 8, 2021.
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`The Movants and Defendants met and conferred on May 24, 2021 and subsequently
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`exchanged correspondence regarding the extent to which these materials are protected by the
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`attorney work product privilege but were unable to resolve the dispute. Movants and Defendants
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`are at an impasse. Pierce Decl., ¶ 3.
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`III.
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`JURISDICTION
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`Federal Rule of Civil Procedure 45(c)(1)(A) states that “a subpoena may command
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`production of documents . . . within 100 miles of where the person resides, is employed, or
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`regularly transacts business in person.” As stated on the subpoena, On Point is located in York,
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`Maine. Thus, compliance may only be required for this subpoena within the District of Maine.
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`Consequently, the jurisdiction for filing motions to quash the subpoena is the District of Maine.
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`See Fed. R. Civ. P. 45(d)(3).
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`Federal Rule of Civil Procedure 45(c)(2) states that a subpoena may command production
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`of documents, electronically stored information, or tangible things at a place within 100 miles of
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`where the person resides, is employed, or regularly transacts business in person. The subpoena
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`identifies On Point’s location as York, Maine. However, the subpoena requires that On Point
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`produce documents at 1001 Pennsylvania Avenue, Washington, DC. This place of compliance is
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`significantly more than 100 miles away from where On Point is located with an estimated
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`distance of approximately 524 miles between York, Maine and Washington, DC. Rule 45
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`(d)(3)(A)(ii) specifically states that a court “must quash” a Rule 45 subpoena if it requires a
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`person to comply beyond the geographical limits specified in Rule 45(c). Therefore, as a
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`threshold matter, the subpoena should be quashed because it requires On Point to comply beyond
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`the 100-mile distance specified in Rule 45(c).
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`IV. ARGUMENT
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`A.
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`The Subpoena Should Be Quashed Because It Seeks Materials Protected by
`Attorney Work Product
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`Rule 26(b)(3) states that “[o]rdinarily, a party may not discover documents and tangible
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`things that are prepared in anticipation of litigation or for trial by or for another party or its
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`representative (“including the other party’s attorney, consultant, surety, indemnitor, or agent”).”
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`Fed. R. Civ. P. 26(b)(3)(A). The “work product doctrine is distinct from, and broader than, the
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`attorney-client privilege.” Allendale Mut. Ins. Co. v. Bull Data Sys., Inc., 145 F.R.D. 84, 86
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`(N.D. Ill. 1992). Attorneys hold their own interest in protecting the attorney work product
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`privilege and “the work-product privilege may be invoked by either the client or the attorney”
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`because “an attorney has an independent interest in privacy, even when the client has waived its
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`own claim.” Hobley v. Burge, 433 F.3d 946, 949 (7th Cir. 2006). Therefore, courts recognize
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`that law firms have independent standing to file motions to quash subpoenas that seek attorney
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`work product. See Matter of Grand Jury Subpoena Duces Tecum Dated Feb. 18, 1988, 685
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`F. Supp. 49, 50–52 (S.D.N.Y. 1988) (“The law firm has standing to intervene and join the
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`investigation firm's motion to quash.”).
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`“From the outset, the focus of work product protection has been on materials prepared for
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`use in litigation, whether the litigation was underway or merely anticipated.” United States v.
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`Textron Inc. & Subsidiaries, 577 F.3d 21, 29 (1st Cir. 2009). “The privilege aimed centrally at
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`protecting the litigation process . . . specifically, work done by counsel to help him or her
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`in litigating a case.” Id. at 30-31. Therefore, the attorney work product privilege protects
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`materials prepared for any litigation ‘“the literal language of [Rule 26(b)(3)] protects materials
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`prepared for any litigation or trial as long as they were prepared by or for a party to the
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`subsequent litigation.”’ Id. (quoting Federal Trade Commission v. Grolier Inc., 462 U.S. 19, 25
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`(1983)).
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`Here, Defendants’ subpoena to On Point almost exclusively seeks work product materials
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`because On Point and Henterly were specifically retained by Hagens Berman to conduct an
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`investigation into Defendants’ anticompetitive conduct in the turkey industry.6 Thus, all
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`materials in On Point’s possession that are responsive and relevant to Defendants’ subpoena
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`were created for potential litigation regarding Defendants’ conduct.
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`Courts have repeatedly recognized that these exact type of materials prepared by
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`investigators is protected by the attorney work product privilege. Alexander v. F.B.I., 192 F.R.D.
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`12, 18 (D.D.C.2000) (“The case law dealing with attorneys’ investigators shows that they should
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`generally be afforded the same protection as the attorneys for whom they work.”) For example,
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`On Point’s interview notes and memoranda regarding communications with confidential
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`witnesses are exactly the kind of opinion work product that courts routinely recognize as
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`protected by the attorney work product privilege.7
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`In correspondence prior to filing this motion, Defendants at no point addressed whether
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`they disagreed that these materials were created for use in the litigation. Instead, Defendants’
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`primary apparent justification for the validity of this subpoena is that attorney work product
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`privileges do not attach to any materials that were created in anticipation of litigation if a formal
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`6 Defendants’ broadly written subpoena also includes requests for materials like “All
`documents relating to the turkey industry” or “all documents relating to Butterball.” Literally
`read, this request may encompass materials such as Henterly’s Thanksgiving menu or receipts
`for purchase of Butterball turkey. But these documents, although not attorney work product, are
`irrelevant to the Turkey antitrust litigation.
`7 See, e.g., Hatamian, 2016 WL 2606830, at *3 (“[A]n investigator at Plaintiffs’ counsel’s
`law firm conducted the interviews as part of the effort to draft the complaint in this action—that
`is, in anticipation of litigation. In short, the interview materials are protected work product.”).
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`representation agreement with a client had not yet been signed.8 Despite Plaintiffs’ repeated
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`requests, Defendants refused to identify a single case in support of their position.9
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`Contrary to Defendants’ assertions, courts find attorney work product privilege extends to
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`material that is created before outside counsel is retained so long as the material is created in
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`anticipation of litigation. See Bahrami v. Price, No. 1:11-CV-4483-SCJ-AJB, 2013 WL
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`3800093, at *6 (N.D. Ga. July 19, 2013) (“the Court notes that documents and things prepared in
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`anticipation of litigation by a party (or its representative) can be protected work product; in other
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`words, Plaintiff’s lack of an attorney at the time he made the recordings does not mean that the
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`recordings cannot be protected work product.”). This is consistent with the clear instructions of
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`the Supreme Court that “the literal language of [Rule 26(b)(3)] protects materials prepared for
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`any litigation or trial as long as they were prepared by or for a party to the subsequent litigation.”
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`Grolier Inc., 462 U.S. at 25. Here, the attorney work product of the private investigators was
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`prepared for usage by Plaintiffs, and their representatives, in anticipated litigation.
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`More broadly, Defendants’ proposed principle would cause great mischief to the
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`adversarial process – any investigative work that an attorney did prior to signing a representation
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`agreement, such as the assessment of the strength of their potential client’s claims or defenses,
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`would be completely unprotected and producible to the other side. This is exactly the harsh result
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`8 See, e.g., Pierce Decl., Ex. B (June 4, 2021 Letter from Kass) (“As we explained, however,
`the work product privilege does not apply unless the work was performed at the request of the
`named plaintiff. This obviously could not occur if any investigative work was done by OnPoint
`or Ms. Henterly prior to the named plaintiffs’ retention of counsel for purposes of bringing the
`instant case.”).
`9 See Pierce Decl., Ex. C (June 18, 2021 Letter from Kass) (“In your letter and during the
`meet and confer, you asked defendants to provide plaintiffs with legal research concerning the
`scope of the work product doctrine. Defendants do not believe that is their burden and, given
`where the parties are in their negotiations, do not believe an exchange of case law would be
`productive.”)
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`to the adversarial process that the work product privilege was designed to prevent.10 Indeed, such
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`an outcome would perversely discourage an attorney’s ethical duty, prior to filing a complaint, to
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`make a reasonable inquiry that “the factual contentions have evidentiary support or, if
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`specifically so identified, will likely have evidentiary support after a reasonable opportunity for
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`further investigation or discovery.” Fed R. Civ. P. 11(b)(3).
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`As the Supreme Court has recognized, the attorney work product doctrine is an “intensely
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`practical one, grounded in the realities of litigation in our adversary system.” Nobles, 422 U.S. at
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`238. The practical result of Defendants’ subpoena would be to give them direct access to the
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`mental processes of their adversary’s representatives. Such an outcome should be prevented
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`because it would be completely contradictory to the very reason for the attorney work product
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`doctrine: “providing a privileged area within which [an attorney] can analyze and prepare [their]
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`client’s case.” Id.
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`V.
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`CONCLUSION
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`Movants respectfully request that this Court grant the motion to quash the subpoena.
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`DATED: June 21, 2021
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`Respectfully submitted,
`By s/Richard O’Meara
` RICHARD O’MEARA
`
`
`MURRAY PLUMB & MURRAY
`75 Pearl Street
`P.O. Box 9785
`Portland, ME 04104-5085
`Tel. No.: (207) 523-8222
`romeara@mpmlaw.com
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`10 See generally Hickman, 329 U.S. at 514 (“When Rule 26 and the other discovery rules
`were adopted, this Court and the members of the bar in general certainly did not believe or
`contemplate that all the files and mental processes of lawyers were thereby opened to the free
`scrutiny of their adversaries. And we refuse to interpret the rules at this time so as to reach so
`harsh and unwarranted a result.”).
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`
`Shana E. Scarlett (pro hac vice forthcoming)
`Rio S. Pierce (pro hac vice forthcoming)
`HAGENS BERMAN SOBOL SHAPIRO, LLP
`715 Hearst Avenue, Suite 202
`Berkeley, California 94710
`Telephone: (510) 725-3000
`Facsimile: (510) 725-3001
`shanas@hbsslaw.com
`riop@hbsslaw.com
`
`Steve W. Berman
`HAGENS BERMAN SOBOL SHAPIRO, LLP
`1301 Second Ave., Suite 2000
`Seattle, WA 98101
`Telephone: (206) 623-7292
`Facsimile: (206) 623-0594
`steve@hbsslaw.com
`
`W. Joseph Bruckner
`Brian D. Clark
`Maureen Kane Berg
`Simeon Morbey
`Steven E. Serdikoff
`LOCKRIDGE GRINDAL NAUEN P.L.L.P.
`100 Washington Avenue South, Suite 2200
`Minneapolis, Minnesota 55401
`Telephone: (612) 339-6900
`Facsimile: (612) 339-0981
`wjbruckner@locklaw.com
`bdclark@locklaw.com
`mkberg@locklaw.com
`samorbey@locklaw.com
`seserdikoff@locklaw.com
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`Attorneys for Movants
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