CASE 0:19-cv-01222-JRT-HB Doc. 283 Filed 10/02/20 Page 1 of 2
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`JESSICA J. NELSON
`DIRECT DIAL: 612-268-7006
`EMAIL: JNELSON@SPENCERFANE.COM
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`October 2, 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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`Peterson, et al., No. 19-cv-1129 (JRT/HB); In re Cattle, No. 19-cv-1222 (JRT/HB); In re
`Re:
`DPP Beef Litig., No. 20-cv-1319 (JRT/HB); & Erbert & Gerbert’s, No. 20-cv-1414 (JRT/HB)
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`Your Honor:
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`I write on behalf of all Defendants concerning Plaintiffs’ October 1, 2020 letter (“Ltr.”) in
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`opposition to the suspension of discovery deadlines and orders in light of Judge Tunheim’s recent Order
`dismissing the Cattle and Peterson second amended complaints—suspension that would be consistent
`with the approach the Court adopted following the dismissal of the operative Pork complaints in 2019. In
`re Pork Antitrust Litig., 18-cv-1776 (JRT/HB) (ECF No. 367).
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`In their letter, Plaintiffs do not deny that there are no truly operative or viable claims in any of the
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`pending actions.1 Rather, Plaintiffs candidly acknowledge that they seek the CID materials in order to
`try to plead a viable amended complaint. Ltr. at 2 (“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”). This bold request for pre-complaint discovery turns the Federal Rules of Civil
`Procedure on its head. See, e.g., Sky Angel U.S., LLC v. Nat’l Cable Satellite Corp., 296 F.R.D. 1, 2–3
`(D.D.C. 2013) (denying motion for discovery after dismissal of complaint with leave to amend and stating
`that the “Rule 8 screening function would be rendered toothless if [plaintiffs] were entitled to pre-
`complaint discovery in order to fish for conduct that gives rise to an antitrust violation”); In re Flash
`Memory Antitrust Litig., 2008 WL 62278, at **1, 5 (N.D. Cal. Jan. 4, 2008) (rejecting plaintiffs’ request
`for production, prior to amendment of complaint, of DOJ antitrust grand jury materials because “[s]uch
`pre-action discovery is generally not permitted” as it “obviates” the protections provided by the Federal
`Rules). Plaintiffs cannot demand the production of documents by Defendants in order to try to solve the
`problems Judge Tunheim identified with their deficient claims.
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`Nothing in the few cases that Plaintiffs cite suggests that pre-complaint discovery is proper. For
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`example, in Lithium case, no motion to dismiss had been granted and the court found the plaintiffs were
`not “seeking pre-complaint discovery” as there were “more than 70 complaints on file … from which to
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`1 Although Plaintiffs suggest in passing that the DPP and Erbert & Gerbert “complaints remain operative,”
`Ltr. at 2, those complaints mirror the complaints Judge Tunheim just dismissed, and Defendants therefore
`could move to dismiss them now. To avoid burdening the Court with unnecessary motion practice, Defendants
`have reached out to inquire whether they intend to dismiss their complaints or to seek to amend. In any event,
`none of the CID materials could be relevant to any claims that Judge Tunheim has determined are not viable.
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`CASE 0:19-cv-01222-JRT-HB Doc. 283 Filed 10/02/20 Page 2 of 2
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`measure the relevance of the requested discovery.” Case No. 13-md-02420, ECF No. 200 (N.D. Cal. May
`21, 2013) (attached as Ex. M to Cattle, ECF No. 219) at 3.2
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`Nor did the Court’s ruling on the CID materials remotely suggest that such pre-complaint
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`discovery would be appropriate. Rather, the Court made clear that Plaintiffs could not “do an end-run”
`around the Federal Rules of Civil Procedure and that Defendants were entitled to assess the relevance of
`the CID materials in light of Plaintiffs’ claims and Defendants’ Rule 34 responses. 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.
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`Given Judge Tunheim’s ruling, that assumption is no longer valid. So Plaintiffs now ask the Court
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`to impose a new assumption – i.e., that any amended complaint will necessarily “provide the details
`sufficient to establish” a viable claim. Ltr. at 2; see also id. at 3 (the amended complaint will “bolster the
`detailed allegations supporting the existing claims of conspiracy”) (emphasis in original).3 But neither the
`Court nor Defendants should be forced to blindly speculate about what the amended complaints will look
`like. And Plaintiffs have made this same argument before. Then, as now, Plaintiffs argued that their
`claims would necessarily survive the motions to dismiss. Peterson, ECF No. 143, at 10 (claiming that a
`discovery stay was not warranted because “Plaintiffs have supplied Defendant-specific information that
`the Court found was lacking in Pork”). But Judge Tunheim found otherwise.
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`Plaintiffs also suggest that getting the documents now is more efficient than requiring them to file
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`amended complaints now and then immediately seeking leave for yet another amendment after they have
`received the documents (see Ltr. 3). But that presumes that the Court will allow discovery after the case
`has already been dismissed once, that the allegations in the amended complaints would warrant the
`production Plaintiffs seek, and that the productions would include information that actually supports
`Plaintiffs’ claims.
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`Defendants respectfully submit that all discovery orders and deadlines should be suspended and
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`that Plaintiffs’ improper request for pre-complaint discovery should be denied. Whether any production
`based on the forthcoming amended complaints should be required is a question that should be considered
`only after their amended complaints are filed.
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`Defendants are available for oral argument on these letters but believe that, as in Pork, the outcome
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`here is straightforward such that argument may not be warranted.
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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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`2 In Broiler Chicken, there were operative complaints and the court had not yet ruled on any motions to
`dismiss. 2017 WL 4417447, at *4 (N.D. Ill. Sept. 28, 2017). And in Raymond, there is no suggestion that the
`plaintiff sought discovery to amend her complaint. See 2014 WL 4215378, at **6–7 (D. Idaho Aug. 25, 2014).
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`3 In this regard, Plaintiffs assert that they have already identified Witnesses 1 and 2—an assertion that is
`simply false. Indeed, when Defendants requested such information before filing their motions to dismiss,
`Plaintiffs refused to provide it. See Cattle, ECF Nos. 141-1 (letter from defense counsel to plaintiffs’ counsel
`requesting identification of Witnesses 1 and 2); 141-2 (letter from plaintiffs’ counsel stating that plaintiffs “do
`not regard it appropriate to provide the information sought”). In any event, Plaintiffs’ deficiency goes beyond
`refusing to name the witnesses and their employers, as Judge Tunheim explained. Peterson, ECF No. 205.
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