CASE 0:19-cv-01222-JRT-HB Doc. 282 Filed 10/01/20 Page 1 of 4
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`AMANDA+LAWRENCE
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`+ Via ECF +
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`October 1, 2020
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`The Honorable Hildy Bowbeer
`United States Magistrate Judge
`734 Federal Building
`316 N. Robert Street
`St. Paul, MN 55101
`
`Re: 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)
`
`Dear Judge Bowbeer:
`
`On behalf of the Plaintiffs in the above actions, we respond to Defendants’ request
`(Cattle, ECF No. 281) seeking suspension of the discovery obligations ordered by this
`Court in its April 14, September 8, and September 10, 2020 Orders (Cattle, ECF Nos. 196,
`254, and 259). Plaintiffs do not oppose a stay of the meet and confer deadlines set forth in
`those orders, but do oppose Defendants’ request that the limited document production
`ordered by the Court be delayed until after Plaintiffs file amended complaints. As
`explained below, enforcing the Order requiring this modest production of highly relevant
`material is not only consistent with the approach taken in other cases, including that in
`Pork, but furthers the “just, speedy, and inexpensive determination” of these actions. Fed.
`R. Civ. P. 1.1
`
`On September 28, 2020, Judge Tunhiem’s Opinion and Order dismissed the Cattle
`and Peterson Complaints with leave to re-plead (ECF No. 278) (“Opinion”). In the
`Opinion, Judge Tunheim recognized that “[a]llegations of direct evidence of an agreement,
`if sufficiently detailed, are independently adequate” to meet the concerted action
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`Had Defendants sought to meet and confer with Plaintiffs prior to communicating
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`with the Court (as they were required to do), Plaintiffs would have communicated this
`proposed compromise. Indeed, Cattle and Peterson Plaintiffs wrote to each Defendant on
`September 29, 2020 regarding the document productions at issue.
`
`Scott+Scott Attorneys at Law LLP + 156 South Main St., P.O. Box 192 + Colchester, CT 06415 + 860.531.2645 + alawrence@scott-scott.com
`
`

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`CASE 0:19-cv-01222-JRT-HB Doc. 282 Filed 10/01/20 Page 2 of 4
`Honorable Hildy Bowbeer
`October 1, 2020
`Page 2
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`requirement of Section 1 of the Sherman Act. Opinion at 11. However, the Opinion found
`that Plaintiffs did not provide certain information regarding the Witnesses, such as the
`employer of Witness 1 or the name of the feedlot at which Witness 2 worked.2 Opinion at
`13. Unquestionably, Plaintiffs can (and will) add the details as to Witness 1 and 2 that the
`Court found lacking. Defendants are well aware of these details, as Plaintiffs disclosed the
`identities of the Witnesses and, by implication, their employers in their initial disclosures.
`Thus, Plaintiffs’ amended pleading will provide the details sufficient to establish direct
`evidence of an agreement under the criteria articulated by Judge Tunheim in his Opinion.
`
`The Opinion also asked that Plaintiffs provide Defendant-specific information as to
`their activity in the market. As noted during the September 4, 2020 hearing, Defendants’
`productions in response to the June 2020 Department of Justice Civil Investigative
`Demands consists, at least in part, of transaction data relating to Defendants’ fed cattle
`purchases and live cattle futures transactions during the Class Period. September 4, 2020
`Hearing Transcript at 20:10-12, 42:12-43:13. Such transaction data, along with the other
`materials produced to the DOJ, will assist Plaintiffs in including the defendant-by-
`defendant detail that Judge Tunheim found missing from the parallel conduct allegations.
`Indeed, in ordering the limited production of documents, this Court expressly contemplated
`the possibility that dismissal with leave to replead would be ordered by Judge Tunheim.
`See September 4, 2020 Hearing Transcript at 36:4-14. (“[Judge Tunheim] may very well,
`as he did in In re Pork, grant leave to replead and . . . these documents could be of material
`assistance to the plaintiffs in dealing with and taking advantage of that opportunity.”).
`Although the existing Complaints have been dismissed, the Opinion provides a clear
`roadmap to curing the deficiencies through amendment. It is well within this Court’s
`discretion to allow the limited, non-burdensome discovery that it has already ordered to
`continue pending the filing of the amended complaints. See Raymond v. Sloan, No. CIV.
`1:13-423 WBS, 2014 WL 4215378, at *7 (D. Idaho Aug. 25, 2014) (after granting
`defendant’s motion to dismiss with leave to amend, the court denied the defendant’s
`motion to stay discovery). Indeed, as previously discussed, Courts routinely permit
`expedited discovery of government productions in antitrust cases where motions to dismiss
`have yet to be resolved. See, e.g., In re Broiler Chicken Antitrust Litig., No. 1:16-cv-08637,
`2017 WL 4417447, at *3-4 (N.D. Ill. Sep. 28, 2017) (court ordered production of
`documents already produced to the Florida Attorney General before resolution of any
`motions to dismiss).
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`The Court also stated that the “queuing convention” alleged by Witness 2, could be
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`viewed as “a concerted refusal to deal, which is itself a violation of the Sherman Act,” thus
`rejecting a key argument made in Defendants’ dismissal motions that the described
`conduct is “not anticompetitive” and merely “standard contract principles of offer and
`acceptance” (ECF No. 140 at 3 and 29). See Opinion at 13-14.
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`CASE 0:19-cv-01222-JRT-HB Doc. 282 Filed 10/01/20 Page 3 of 4
`Honorable Hildy Bowbeer
`October 1, 2020
`Page 3
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`Defendants nonetheless rely heavily on In re Pork Antitrust Litig., 18-cv-1776
`(JRT/HB) (“In re Pork”), ECF No. 367, but this case differs from Pork on both the
`deficiencies identified in the dismissal opinion and the procedural posture of the ordered
`discovery. To begin with, in Pork, Defendants had already produced all of the documents
`that this Court ordered (namely, Agri-Stats’ prior DOJ production) at the time of the
`dismissal opinion. The only deadlines and dates suspended by the stay there were the meet
`and confer deadlines and the Court’s status conference (which Plaintiffs here also agree to
`suspend). Here, by contrast, the document productions this Court ordered on September 10,
`2020, are due to be made imminently. Furthermore, the plaintiffs in Pork did not rely upon
`witness evidence and therefore were not instructed by the Court to simply supply further
`details as to any witnesses.
`
`Defendants’ final argument that an assessment of relevance with respect to the
`required production cannot occur until the amended complaints are filed strains credulity.
`There is no suggestion anywhere in the Opinion that the amended complaints will do
`anything other than bolster the detailed allegations supporting the existing claims of
`conspiracy. Defendants are well aware of the nature of the alleged conspiracy, and by their
`September 29, 2020 letters to each Defendant, Plaintiffs have already confirmed that the
`amended complaints “will maintain the same claims previously advanced in the Plaintiffs’
`prior complaints.” Moreover, the DPP Beef and Erbert & Gerbert’s Plaintiffs’ existing
`complaints remain operative. Defendants thus face no obstacles in determining the
`relevance of the documents produced to the DOJ regarding Plaintiffs’ claims. See Order re:
`Production of Information Produced to Grand Jury, In re Lithium Ion Batteries Antitrust
`Litig., Case No. 13-md-02420, Docket No. 200 (N.D. Cal. May 21, 2013) (attached as Ex.
`M to Cattle ECF No. 219) (holding that the absence of an operative complaint did not
`preclude a relevance assessment and ordering production of documents previously
`produced to the DOJ prior to plaintiffs filing an amended complaint).
`
`Nor can Defendants point to any additional burden that might justify the stay.
`Indeed, Defendants have no doubt already completed their relevance review given that
`three weeks have passed since the Court’s September 10 Order and the small volume of
`documents at issue. September 4, 2020 Hearing Transcript at 32:12-14 (productions were
`“not a large volume of information”).3 Moreover, requiring Defendants to complete the
`production now, rather than after Plaintiffs file their amended complaints, as Defendants
`would have it, is a more efficient use of judicial and party resources. It makes no sense to
`require Plaintiffs to amend now, only to then immediately seek leave to file a further
`amended complaint to reflect the information the Defendants would then produce. Apart
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`Plaintiffs’ September 29, 2020 letters to Defendants also offered to stipulate as to
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`the confidentiality of these documents pursuant to the Protective Order to further reduce
`Defendants’ burden.
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`CASE 0:19-cv-01222-JRT-HB Doc. 282 Filed 10/01/20 Page 4 of 4
`Honorable Hildy Bowbeer
`October 1, 2020
`Page 4
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`from informing Plaintiffs’ pleadings, the production will also assist the parties and the
`Court to make key determinations about how the case will proceed more generally.
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`For these reasons, Plaintiffs respectfully request that the Defendants’ letter motion
`to suspend all discovery be denied. If the Court would find it helpful, Plaintiffs are
`available for oral argument on these letters.
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`Respectfully submitted,
`SCOTT+SCOTT ATTORNEYS AT LAW LLP
`
`/s Amanda F. Lawrence
`
`Amanda Lawrence
`
`