CASE 0:19-cv-01222-JRT-HB Doc. 281 Filed 09/30/20 Page 1 of 2
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`JESSICA J. NELSON
`DIRECT DIAL: 612-268-7006
`EMAIL: JNELSON@SPENCERFANE.COM
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`September 30, 2020
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`VIA ECF
`The Honorable Hildy Bowbeer
`United States Magistrate Judge
`734 Federal Building
`316 N. Robert Street
`St. Paul, MN 55101
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`Re:
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`Peterson, et al., No. 19-cv-1129 (JRT/HB); In re Cattle Antitrust Litigation, No. 19-cv-
`1222 (JRT/HB); In re DPP Beef Litigation, No. 20-cv-1319 (JRT/HB); and Erbert &
`Gerbert’s, Inc., No. 20-cv-1414 (JRT/HB)
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`Your Honor:
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`With permission from Chambers, I write on behalf of all Defendants concerning the current
`discovery orders and deadlines. As the Court is aware, on September 28, 2020, Chief Judge
`Tunheim entered the Memorandum Opinion and Order Granting Defendants’ Motions to Dismiss
`the Cattle and Peterson second amended complaints.1 Although Judge Tunheim granted Plaintiffs
`leave to amend their complaints within 90 days of the Order, it is far from clear that any amended
`pleading would survive a motion to dismiss under the criteria articulated by Judge Tunheim in his
`opinion. In addition, the In re DPP and Erbert & Gerbert’s complaints are essentially duplicative
`of the Cattle and Peterson second amended complaints and suffer from the same pleading defects
`identified in Judge Tunheim’s Order.2
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`Given there are currently no operative or viable complaints in any action following Judge
`Tunheim’s Order, Defendants respectfully submit that all discovery orders and deadlines should
`be suspended pending Plaintiffs’ amended complaints and further order of this Court. This
`approach is consistent with the Court’s order in In re Pork Antitrust Litig., 18-cv-1776 (JRT/HB)
`(ECF No. 367) following Judge Tunheim’s dismissal of the operative complaints.
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`Specifically, the suspension should apply to the upcoming deadlines set forth in the Court’s Second
`Order on Discovery Pending Resolution of Motions to Dismiss, including the deadlines for the
`parties to meet and confer regarding Rule 34 requests, custodians, and noncustodial sources. Such
`suspension also should apply to the production required by the Court’s Order on Plaintiffs’ Motion
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`1 See ECF No. 204 in 19-cv-1129; ECF No. 278 in 19-cv-1222 (as amended to correct a docket
`reference, ECF No. 205 in 19-cv-1129; ECF No. 279 in 19-cv-1222).
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`2 Defendants have asked the In re DPP and Erbert & Gerbert’s Plaintiffs whether they intend to dismiss
`their complaints or amend them.
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`CASE 0:19-cv-01222-JRT-HB Doc. 281 Filed 09/30/20 Page 2 of 2
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`September 30, 2020
`Page 2
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`to Narrowly Lift Discovery Stay. In requiring that production, the Court directed Defendants to
`produce only those documents that are relevant to Plaintiffs’ claims in these cases. Peterson, ECF
`No. 189, at 8-9. In conducting such review, Defendants were to “operate on the assumption that
`their motions to dismiss will be denied in their entirety.” Id. at 9. That assumption is no longer
`valid. Since the entry of that Order, Judge Tunheim granted the motions to dismiss and dismissed
`all of Plaintiffs’ claims in their entirety. While Plaintiffs have indicated that they intend to amend
`their complaints, any assessment of relevance cannot occur until Plaintiffs have done so. To
`require otherwise would transform an order to conduct discovery pending the resolution of motions
`to dismiss into an order to conduct discovery pending the filing of a complaint itself. And because
`there is significant uncertainty that any amended pleading will survive a motion to dismiss under
`the standards set forth in Judge Tunheim’s Order, whether any production based on the
`forthcoming amended complaints should be required is a question that should be considered only
`after those amended complaints are filed.
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`Of course, Defendants are mindful of preservation considerations. Therefore, consistent with this
`Court’s post-dismissal Order in Pork, which stated “all obligations and orders to preserve
`evidence, documents, and data remain in effect,” In re Pork Antitrust Litig., 18-cv-1776 (JRT/HB)
`(ECF No. 367), Defendants will continue to preserve the documents and data subject to Plaintiffs’
`prior complaints.
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`Respectfully submitted,
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`/s/ Jessica J. Nelson
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`Jessica J. Nelson
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