`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
`
`
`Food Lion, LLC, and Maryland and
`Virginia Milk Producers Cooperative
`Association, Inc.,
`
`
`Plaintiffs,
`
`
`v.
`
`Dairy Farmers of America, Inc.,
`
`
`Defendants.
`
`
`
`
`
`
`
`Case No. 1:20-cv-00442
`
`
`
`BRIEF IN SUPPORT OF DAIRY FARMERS OF AMERICA, INC.’S
`MOTION FOR PROTECTIVE ORDER
`NATURE OF THE MATTER BEFORE THE COURT
`
`Plaintiffs Food Lion, LLC (“Food Lion”) and Maryland and Virginia Milk
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`Producers Cooperative Association, Inc. (“MDVA”) have brought a narrowly
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`focused antitrust case seeking only injunctive relief relating to the three fluid
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`milk 1 processing plants located in North and South Carolina that Dairy
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`Farmers of America, Inc. (“DFA”) acquired out of the bankruptcy of Dean Foods
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`Company (“Dean”). Plaintiffs assured this Court that they were aware of the
`
`
`1 “Fluid milk” is the term used to denote conventional drinking milk. It
`encompasses milk sold in various sizes at grocery stores (e.g., gallons and half-
`gallons), and well as milk sold in schools. It does not include organic milk or
`milk that is processed and packaged for extended shelf life.
`
`
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`1
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`Case 1:20-cv-00442-CCE-JLW Document 54 Filed 09/01/20 Page 1 of 23
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`need for “discipline” in discovery to “keep the case moving and make sure that
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`the interests of the various parties are protected.” (ECF No. 29 at 23:17-19.)
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`But the moment the Court denied DFA’s motion to dismiss Plaintiffs’
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`complaint, Plaintiffs launched wide-ranging discovery, serving an additional
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`forty-six (46) document requests on DFA. It would be impossible for any
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`company to comply with Plaintiffs’ expansive view of discovery under the
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`expedited schedule in this case.
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`To make matters worse, Plaintiffs have not engaged in reciprocal
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`discovery. As of the filing of this motion, Plaintiffs have produced only a few
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`dozen actual business documents. Moreover, Food Lion has resisted producing
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`information that would allow DFA to understand the data that it has produced,
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`notwithstanding the Court’s order that structured data be provided by August
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`15, 2020. In contrast, DFA has produced over 18,000 documents, which in turn
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`allowed Plaintiffs to raise specific questions about which custodians DFA
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`should search (something that DFA cannot do as to Plaintiffs’ custodians given
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`the sparsity of Plaintiffs’ productions to date), and to craft, should they so
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`choose, focused follow-up discovery based on perceived gaps in what Plaintiffs
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`received in response to their initial discovery requests (again, something that
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`DFA cannot do as to Plaintiffs given the sparsity of Plaintiffs’ productions to
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`date).
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`2
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`Case 1:20-cv-00442-CCE-JLW Document 54 Filed 09/01/20 Page 2 of 23
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`DFA files this Motion to halt Plaintiffs’ abuse of the discovery process.
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`DFA requests that the Court intervene to prevent DFA from having to respond
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`to 16 kitchen-sink style discovery requests, most of which have little if
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`anything to do with raw or fluid milk sales or processing in North or South
`
`Carolina, the area of the country that Plaintiffs have asserted is the “relevant
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`geographic market.”2
`
`BACKGROUND
`
`The Discovery Schedule
`A.
`Plaintiffs initially sought expedited discovery in this case and proposed
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`to serve 18 document requests on DFA. At a June 4, 2020 Status Conference,
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`the Court expressed some concern about the scope of Plaintiffs’ proposed
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`requests, observing that “it’s one thing when you're just in the middle of a
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`regular ordinary ‘ole case to ask for the kitchen sink and say we'll work it all
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`out, but when you’re asking for expedited discovery on a 90-day time frame,
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`don’t you bear a significant responsibility for proposing narrow, targeted
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`discovery?” (ECF No. 29 at 29:15-20.) The Plaintiffs accepted that
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`responsibility. Subsequently, on June 10, 2020, the Court entered an Order
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`(the “Expedited Discovery Order”) (ECF No. 28) allowing Plaintiffs to serve 12
`
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`2 DFA timely served written objections and responses to all of the Second
`RFPs on August 26, 2020.
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`
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`3
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`Case 1:20-cv-00442-CCE-JLW Document 54 Filed 09/01/20 Page 3 of 23
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`
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`targeted discovery requests on DFA and requiring DFA to serve written
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`responses and objections to those requests by July 17, with DFA’s document
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`production to begin at the same time on a rolling basis. Per the limits of the
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`Expedited Discovery Order, Plaintiffs served on DFA on June 17, 2020 eight
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`requests for production of documents (the “First RFPs”).
`
`At the Court’s suggestion, the parties also negotiated a Stipulated
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`Discovery and Briefing Schedule/Order (the “Scheduling Order”), which the
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`Court entered on July 2, 2020. The Scheduling Order established an expedited
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`90-day schedule for written discovery and document production. Specifically,
`
`the production of structured data by all parties was to be completed by August
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`15, 2020. The parties had until August 31, 2020 to serve additional written
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`discovery requests, and all document productions are to be completed by
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`October 2, 2020.3
`
`B. The Parties’ Document Productions to Date
`On July 17, 2020, DFA served its written responses and objections to the
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`First RFPs. (See Declaration of Amber L. McDonald (“McDonald Dec.”) ¶4.)
`
`That same day, DFA produced raw milk sales data for North and South
`
`
`3 On August 31, Plaintiffs served a Combined Third Set of Requests for
`Production of Documents containing an additional five requests, including one
`request that seeks documents responsive to 11 “specifications” contained in a
`subpoena issued to Southern Foods Group, LLC d/b/a Dean Foods Company,
`the legacy entity for Dean.
`
`
`
`4
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`Case 1:20-cv-00442-CCE-JLW Document 54 Filed 09/01/20 Page 4 of 23
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`
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`Carolina for the time period from January 2017 to May 2020. (Id.) In a show of
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`good faith, DFA produced this data while the parties were still in the process
`
`of negotiating a Protective Order and ESI Protocol, and did not use those
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`negotiations as a basis to delay the data production, even though it could have
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`waited until August 15 under the terms of the Scheduling Order. In response
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`to Plaintiffs’ RFP No. 1, DFA also produced over 18,000 pages of documents
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`relating to raw milk or fluid milk produced or sold in North and South Carolina
`
`that were previously produced to the Department of Justice and/or state
`
`Attorneys General. (Id. ¶5.)
`
`On August 7, 2020, DFA produced documents responsive to Plaintiffs’
`
`RFP Nos. 2 and 6, and, per negotiations between the parties, voluntarily
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`supplemented its raw milk sales data to include data for Virginia, North
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`Carolina, South Carolina, Georgia, and part of Tennessee, for the period from
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`January 1, 2017 through June 30, 2020. (Id. ¶6.) On August 10, 2020, DFA
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`produced data responsive to Plaintiffs’ RFP No. 8. (Id. ¶7.) On August 14, 2020,
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`DFA produced documents responsive to Plaintiffs’ RFP Nos. 5 and 8, and
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`produced a copy of DFA’s Hart-Scott-Rodino filing with the Justice
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`Department. (Id. ¶8.) On August 20, DFA made another significant production,
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`including an expanded production of materials produced to the DOJ, and
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`supplementing the previous raw milk sales data with the now-completed July
`
`
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`5
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`
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`2020 data. (Id. ¶9.) On August 31, 2020, DFA produced additional documents
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`responsive to Plaintiffs’ RFP Nos. 1, 2, and 8. (Id. ¶10.)
`
`Plaintiffs, in contrast, have produced little in the way of discovery. DFA
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`served requests for production of documents on July 10. Both MDVA and Food
`
`Lion served their responses on August 10, but neither Plaintiff made any
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`production of documents with its response. (Id. ¶12.) On August 14, Food Lion
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`produced 33 documents, and MDVA produced 12 documents. (Id. ¶13.) On
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`August 21, Food Lion produced an additional 27 documents, and MDVA
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`produced 23 documents. (Id. ¶14.) As of August 31, Plaintiffs have produced a
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`total of 95 documents, more than two weeks after serving their responses, and
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`45 days after receiving DFA’s requests. (Id. ¶15.) Of the 95 documents
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`Plaintiffs produced, 88 are communications with DOJ or documents cited by
`
`Professor Shor in his declaration (ECF No. 15). (Id.) Plaintiffs also have also
`
`declined to start custodian and search term-based review until all written
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`discovery is served, despite the Court’s Order that allowed written discovery
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`to be served through August 31. (Id. ¶16.)
`
`C. Plaintiffs’ Second Set of RFPs
`On July 27, 2020—just ten days after DFA served its written responses
`
`to the First RFPs—Plaintiff served a second set of requests for production (the
`
`
`
`6
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`Case 1:20-cv-00442-CCE-JLW Document 54 Filed 09/01/20 Page 6 of 23
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`
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`“Second RFPs”) containing an additional 46 document requests. (McDonald
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`Dec. Exhibit 1.)
`
`DFA notified Plaintiffs of its concerns about the scope and breadth of the
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`Second RFPs on August 18, 2020 and requested a meet-and-confer before
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`DFA’s written responses were due. (Id. Exhibit 2.) The parties met-and-
`
`conferred telephonically on August 20, 2020, and DFA confirmed the substance
`
`of that call on August 24, 2020. (Id. Exhibit 3.) During the meet-and-confer,
`
`Plaintiffs agreed to consider modifying six requests, and the parties agreed to
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`table their discussion of some of the other requests pending DFA’s service of
`
`its formal objections and responses and further negotiations between the
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`parties. (Id.) As to a dozen of the Second RFPs, however, the parties remained
`
`at an impasse. (Id. at 3-5.) On August 26, 2020, the day that DFA’s responses
`
`were due, Plaintiffs followed up on the meet-and-confer by reformulating three
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`of the requests they agreed to reconsider, but remaining firm on the others.
`
`(Id. Exhibit 4.) Although Plaintiffs indicated a full response to DFA’s August
`
`24, 2020 letter would be forthcoming, DFA has not received a response. DFA
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`timely served its objections and responses to the Second RFPs on August 26,
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`2020. (Id. Exhibit 5.)
`
`Based on Plaintiffs’ current position, DFA seeks relief as to 16 of the 46
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`requests. Those 16 requests fall into six categories: 1) Requests seeking
`
`
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`7
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`Case 1:20-cv-00442-CCE-JLW Document 54 Filed 09/01/20 Page 7 of 23
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`discovery of “all documents” having to do with MDVA, its farmer members, and
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`other non-DFA farmers (RFP Nos. 27, 42, and 43); 2) requests for “all
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`documents concerning or relating” to raw milk purchases for a non-fluid milk
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`processing plant located in New Jersey going back to January 1, 2016, and “all
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`documents concerning or relating” to Deans’ raw milk purchasing decisions in
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`Kentucky and Tennessee going back to January 1, 2013 (RFP Nos. 40 and
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`41); 3) requests for “all documents related to or used in” preparing DFA’s
`
`Answer and “all documents pertaining to, relied upon, identified, or referred to
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`by DFA in its interrogatory responses (RFP Nos. 49 and 50); 4) requests for
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`“all documents” related to studies or analyses of the raw and fluid milk
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`markets for a five-state area going back six years (RFP Nos. 25 and 26); 5)
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`requests for “all documents” created regarding two other dairy farmer
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`cooperatives and a dairy marketing company (RFP Nos. 44 through 48), and
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`6) “catch-all” requests for “all documents concerning or relating to DFA’s,
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`Dean’s, or any other company’s” pricing for fluid milk and “to the extent not
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`produced in response” to Plaintiffs’ first document requests, “documents
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`concerning or relating to the supply of processed milk” in the Relevant Area
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`(RFP Nos. 29 and 31).
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`
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`8
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`
`
`ARGUMENT
`
`I.
`
`STANDARD OF REVIEW
`Under Rule 26(b)(2)(c), “[o]n motion or on its own, the court must limit
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`the frequency or extent of discovery otherwise allowed by these rules or by local
`
`rule if it determines that: (i) the discovery sought is unreasonably cumulative
`
`or duplicative, or can be obtained from some other source that is more
`
`convenient, less burdensome, or less expensive; . . . or (iii) the proposed
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`discovery is outside the scope permitted by Rule 26(b)(1).” Rule 26(b)(1), in
`
`turn, permits discovery
`
`regarding any nonprivileged matter that is relevant to any party's
`claim or defense and proportional to the needs of the case,
`considering the importance of the issues at stake in the action, the
`amount in controversy, the parties’ relative access to relevant
`information, the parties’ resources, the importance of the discovery
`in resolving the issues, and whether the burden or expense of the
`proposed discovery outweighs its likely benefit
`Under Rule 26(b)(1), “[r]elevancy alone is no longer sufficient—discovery
`
`must also be proportional to the needs of the case.” In re Bard IVC Filters
`
`Products Liab. Litig., 317 F.R.D. 562, 564, (D. Ariz. 2016). “The purpose of the
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`presently codified proportionality principle is to permit discovery of that which
`
`is needed to prove a claim or defense, but eliminate unnecessary or wasteful
`
`discovery.” Crystal Lakes v. Bath & Body Works, LLC, No. 2:16-CV-2989-MCE-
`
`GGH, 2018 WL 533915, at *1 (E.D. Cal. Jan. 23, 2018). Even prior to the
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`
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`9
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`
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`amendments to Rule 26 to incorporate the proportionality principle, this Court
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`recognized that “requests seeking ‘any and all’ documents ‘relating to’ are
`
`overly broad.” Donnelly v. Arringdon Dev., Inc, No. 1:04CV889, 2005 WL
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`8167556, at *1 (M.D.N.C. Nov. 8, 2005).
`
`As the party resisting discovery, DFA bears the burden of persuasion,
`
`Santiago v. S. Health Partners, No. 15CV589, 2016 WL 4435229, at *2
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`(M.D.N.C. Aug. 19, 2016), but as noted in the advisory committee notes to the
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`2015 amendments to Rule 26, “[t]he parties and the court have a collective
`
`responsibility to consider the proportionality of all discovery and consider it in
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`resolving discovery disputes.”
`
`II. PLAINTIFFS’ SECOND REQUESTS FOR PRODUCTION ARE
`DISPROPORTIONATE TO THE NEEDS OF THIS CASE.
`This is not an antitrust case alleging a horizontal conspiracy among
`
`competitors to fix prices, nor is it a monopolization (or intent to monopolize)
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`case where a plaintiff seeks monetary damages. Rather, this a narrow lawsuit
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`under Section 7 of the Clayton Act and Section 2 of the Sherman Act seeking
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`to force a divestiture of one or more fluid milk processing plants in North and
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`
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`10
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`South Carolina that DFA acquired out of Dean’s bankruptcy, pursuant to an
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`open, court-supervised bidding process.4
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`Plaintiffs’ basic allegation is that DFA’s acquisition of three former Dean
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`Foods fluid milk processing plants in North and South Carolina will foreclose
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`Plaintiffs’ access to alleged markets for raw and fluid milk in those two states.
`
`Plaintiffs assert that their theory allows them to take timeless, geographically
`
`limitless discovery under the rubric that “everything is relevant” in an
`
`antitrust case. In doing so, Plaintiffs not only ignore the narrow focus on the
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`theory of their case and this Court’s admonition that, in exchange for an
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`expedited discovery process, Plaintiffs bear responsibility to conduct focused
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`discovery.
`
`
`4 This lawsuit represents Plaintiff MDVA’s third bite at the apple as to
`the Carolinas Plants. MDVA initially attempted to buy one of the plants out of
`the bankruptcy proceeding, but its bid was rejected. MDVA also attempted
`unsuccessfully to convince the Department of Justice to force DFA to divest the
`Carolinas Plants as a condition of DOJ’s approval of the Asset Sale.
`
`Food Lion did not even submit a bid for a plant in the Dean bankruptcy,
`even though it is part of a $62 billion multi-national grocery conglomerate that
`operates six brands of grocery stores in the U.S. alone.
`
`
`
`11
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`
`
`A. Plaintiffs’ Requests for All Documents Concerning or
`Related to MDVA or Independent Farmers for a Six-Year
`Period Are Overbroad and Disproportionate.
`
`
`
`Requests for Production Nos. 27, 42, and 43: RFP No. 27 seeks “[a]ll
`
`documents created since January 1, 2014, concerning or relating to MDVA, its
`
`farmer members, or any other non-DFA producer of raw milk in the Relevant
`
`Area.” 5 In other words, Plaintiffs are requesting that DFA produce every
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`document for a six-and-a-half-year period that “concerns or relates” to MDVA,
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`any of its members, or any non-DFA member farm in a five-state area,
`
`regardless of context or substance. RFP No. 42 seeks all documents created
`
`since January 1, 2013 “concerning or relating to MDVA farmer members
`
`located in Tennessee or Kentucky becoming DFA members.” RFP No. 43
`
`similarly seeks “[a]ll documents created since January 1, 2014, concerning or
`
`relating to communications between DFA and any MDVA member farmers”
`
`without any limitation as to geographic scope or substance. To give this request
`
`some context, MDVA purports to have over 950 members in 11 states. (ECF
`
`No. 1 at ¶2).
`
`
`5 For purposes of the Second RFPs, the “Relevant Area” consists of North
`Carolina, South Carolina, Georgia, Virginia, and the portion of Tennessee
`located in Federal Milk Marketing Order No. 5 (a small portion in Eastern
`Tennessee that includes Knoxville).
`
`
`
`12
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`
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`These requests are disproportionate and overbroad in that they seek all
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`of DFA’s documents regarding MDVA and its member farmers for a six-year
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`period (and even longer for MDVA members in Kentucky or Tennessee),
`
`regardless of context or subject matter. In Elsayed v. Family Fare LLC, No.
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`1:18CV1045, 2019 WL 8586708 (M.D.N.C. Oct. 31, 2019), this Court rejected a
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`similarly broad request that would “require Defendants to produce all e-mails
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`for a three-year period and all text or instant messages for a six-year period . .
`
`. without regard to the substance of those communications” as a “blatant
`
`fishing expedition essentially seeking all communications relating to Plaintiff
`
`rather than only those having any apparent or possible nexus to the issues in
`
`this case.” 2019 WL 8586708, at *3 (quoting Ge v. Dun & Bradstreet, Inc., 2017
`
`WL 10059004, at *4 (M.D. Fla. Jan. 4, 2017) (brackets and alterations
`
`omitted)). See also Kleppinger v. Texas Dep't of Transp., No. CV L-10-124, 2012
`
`WL 12893652, at *20 (S.D. Tex. Mar. 12, 2012) (“This request is overbroad in
`
`that it basically seeks all communications regarding Plaintiff.”) Plaintiffs’
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`requests here suffer from the same overbreadth problem.
`
`Plaintiffs’ position appears to be that they are entitled to this discovery
`
`because they have alleged that some MDVA member farms may switch to DFA
`
`as a result of the acquisition of the Carolinas Plants. (Compl. ¶116.) Plaintiffs’
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`requests are disproportionate to that narrow allegation, however, as Plaintiffs
`
`
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`13
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`seek all documents concerning or related to non-DFA farmers who are also non-
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`MDVA farmers. Plaintiffs have offered no explanation as to how documents
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`regarding non-MDVA members are relevant to their allegations.
`
`Nor have Plaintiffs explained how documents “concerning or related to
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`communications between DFA and any MDVA farmer members,” without any
`
`limit on geography or subject matter, are relevant to their allegations that
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`some MDVA farmers may switch to DFA as a result of the acquisition of the
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`Carolinas Plants. Moreover, the six-year time period of these requests—
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`especially when coupled with the lack of any geographic limitation as to the
`
`request
`
`for communications with MDVA’s member
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`farmers—is also
`
`unreasonable given Plaintiffs’ failure to point to any specific relevance that
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`documents and communications from 2014 may have in this case (in addition
`
`to their disregard of the otherwise agreed-upon time period). In short, much
`
`like the request at issue in Elsayed, Plaintiffs’ requests are little more than a
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`“fishing expedition” seeking all documents concerning or relating to MDVA,
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`“rather than only those having any apparent or possible nexus to the issues in
`
`this case.”
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`
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`14
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`
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`B. Plaintiffs’ Requests for Documents That Relate to Events
`Far Outside the Relevant Geographic Area Are Irrelevant
`and Disproportionate.
`
`Request for Production No. 40: This request seeks “[a]ll documents
`
`created since January 1, 2016, concerning or relating to the decisions and/or
`
`actions of Cumberland Dairy in New Jersey and/or DFA to reduce or eliminate
`
`the volume of raw milk that the Cumberland Dairy processing facility
`
`purchased from MDVA.” Cumberland Dairy is a milk processing plant that
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`produces shelf-stable products.6 In other words, Plaintiffs seek discovery about
`
`raw milk purchasing decisions made as long as four years ago for a processing
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`plant located in New Jersey that does not operate in the fluid milk market that
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`Plaintiffs have contended is the relevant product market for the analysis of
`
`this case. Plaintiffs’ apparent theory of relevance is that they contend that
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`what Cumberland and DFA allegedly did in 2016 in New Jersey is probative
`
`of what DFA allegedly might do in North and South Carolina in 2021. This
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`request—which would inevitably lead to a “trial-within-a-trial” about
`
`Cumberland Dairy—seeks irrelevant information and is disproportionate to
`
`the needs of the case because it has nothing to do with Plaintiffs’ alleged
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`product market of fluid milk, the alleged geographic market of North and
`
`
` See
`https://cumberlanddairy.com/wp_super_faq/what-is-ultra-
`6
`pasteurization/ (last retrieved on September 1, 2020).
`
`
`
`15
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`
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`South Carolina, or even anything to do with the expanded “Relevant Market”
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`set out in the Second RFPs.
`
`Request for Production No. 41: This request seeks “[a]ll documents
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`created since January 1, 2013, concerning or relating to actions and/or
`
`decisions by processing facilities owned by or affiliated with Dean and located
`
`in Kentucky and Tennessee to reduce or eliminate the volume of raw milk
`
`purchased from MDVA.” Again, Plaintiffs appear to contend that actions
`
`allegedly taken by Dean Foods in Kentucky and Tennessee seven years ago are
`
`probative of what DFA allegedly will do in North and South Carolina in 2021.
`
`As with the prior request, RFP No. 41 would lead to litigation of issues that
`
`have at best tangential relevance to the present case, and is disproportionate
`
`in light of Plaintiffs’ alleged geographic market of North and South Carolina.
`
`Plaintiffs’ request for documents going all the way back to January 1, 2013 is
`
`similarly disproportionate given the parties’ agreement that the relevant time
`
`period in this case is January 1, 2017 to July 30, 2020.
`
`C. Plaintiffs’ Requests for All Documents That Relate or
`Pertain to DFA’s Pleadings and Interrogatory Responses
`Lack the Required Particularity.
`
`RFP Nos. 49 and 50: These requests seek “[a]ll documents related to
`
`or used in the preparation of any allegation, denial, or affirmative defense
`
`raised in Your pleadings in the Pending Action,” and [a]ll documents
`
`
`
`16
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`
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`pertaining to, relied upon, identified, or referred to by You in responding to any
`
`Interrogatory propounded by Plaintiffs in the Pending Action.” This Court has
`
`repeatedly rejected such “broad-brush” requests. In Donnelly v. Arringdon
`
`Dev., Inc, No. 1:04CV889, 2005 WL 8167556, at *2 (M.D.N.C. Nov. 8, 2005),
`
`the party served a request for “all documents identified in or relied upon in
`
`response to Defendant’s interrogatories.” The Court explained that “[s]uch a
`
`broad-brush request is analogous to seeking all documents relating to the
`
`allegations in a complaint, and it has been shown that such a sweeping request
`
`is not permitted.” Similarly, in Preferred Carolinas Realty, Inc. v. Am. Home
`
`Realty Network, Inc., No. 1:13CV181, 2014 WL 1320133 (M.D.N.C. Mar. 28,
`
`2014), a party had requested “not only documents that support Plaintiff's
`
`interrogatory answers, but also those that refer or relate to facts identified.” Id.
`
`at *4 (emphasis in original). The Court had little trouble concluding that the
`
`request violated Rule 34’s particularity requirement. Id. The same result
`
`should apply here.
`
`D. Plaintiffs’ Requests for Documents Going Back Six Years
`Are Overbroad and Disproportionate.
`
`RFP Nos. 25 and 26: These requests seek “[a]ll documents created
`
`since January 1, 2014, concerning or relating to analyses, studies, strategies,
`
`plans, assessments, or reports relating to the supply, sale, or purchase of” or
`
`“concerning market conditions, market participants, market shares, or
`
`
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`17
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`competitors in the production of” “raw milk or processed milk in, into, or from
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`the Relevant Area.” As noted above, Plaintiffs’ request for “all documents . . .
`
`concerning or related to” the items listed in the RFPs is improper. See
`
`Donnelly, 2005 WL 8167556, at *1. DFA does not dispute that market
`
`assessments or analyses may be relevant to Plaintiffs’ allegations and
`
`discoverable, but Plaintiffs have failed to serve narrowly-tailored requests or
`
`explain why or how analyses of market conditions or market shares from 2014
`
`are probative of the markets for raw and processed milk as they exist today.
`
`During the meet-and-confer, Plaintiffs contended that this request was
`
`relevant to allegations that DFA forced Dean to stop sourcing raw milk for the
`
`Carolinas Plants from MDVA prior to 2017. Even if that were true or relevant
`
`(it is not), however, the requests go far beyond that narrow issue and instead
`
`seek documents going back six-years and covering a five-state area. Moreover,
`
`Plaintiffs’ logic is circular since they seem to contend that it is relevant to
`
`explore how MDVA stopped being a supplier to Dean many years ago to show
`
`that the DFA acquisition would foreclose them now. Again, in light of the
`
`narrow scope of Plaintiffs’ theory of harm, and the relief requested, the breadth
`
`of these requests is disproportionate.
`
`
`
`18
`
`Case 1:20-cv-00442-CCE-JLW Document 54 Filed 09/01/20 Page 18 of 23
`
`
`
`E. Plaintiffs’ Requests for Documents Related to Other Milk
`Cooperatives Are Disproportionate and Irrelevant.
`
`
`RFP Nos. 44 through 48: These requests seek “all documents”
`
`“concerning or relating” to the formation and operation of the Appalachian
`
`Dairy Farmers Cooperative, as well as all documents created since January 1,
`
`2014 concerning or relating to Piedmont Milk Sales or Cobblestone Milk
`
`Cooperative. The requests are not limited to documents that deal with the
`
`activities of those entities within North or South Carolina or even the Relevant
`
`Area. DFA requested that Plaintiffs explain the relevance of these requests to
`
`the issues in this litigation during the meet-and-confer, but Plaintiffs were
`
`unable to do so, particularly as to the time period of the information sought.
`
`DFA does not dispute that data regarding sales or marketing of raw milk
`
`in the relevant area by Appalachian, Piedmont, and Cobblestone will likely be
`
`relevant to market definition issues, or that Appalachian, Piedmont, and
`
`Cobblestone may even have relevant information in their possession. Any such
`
`information, however, is best obtained from those entities. See Rule 26(b)(1)
`
`(listing “the parties’ relative access to relevant information” as a factor in the
`
`proportionality analysis). Moreover, Plaintiffs’ requests are not narrowly-
`
`tailored to focus on market definition. DFA does not understand—and
`
`Plaintiffs have not explained—how the “formation and operation” of
`
`Appalachian, a cooperative that is legally distinct from DFA and MDVA, is
`
`
`
`19
`
`Case 1:20-cv-00442-CCE-JLW Document 54 Filed 09/01/20 Page 19 of 23
`
`
`
`relevant. Nor have Plaintiffs explained why they require “all documents” since
`
`January 1, 2014 in DFA’s possession that concern or relate to Piedmont and
`
`Cobblestone, without regard to the subject matter of the documents. Once
`
`again, Plaintiffs’ requests appear to be a “fishing expedition” without any
`
`nexus to their allegations in this case.
`
`F. DFA’s “Catch-All” Requests Are Disproportionate and Fail
`to Specify the Documents Requested.
`
`RFP Nos. 29 and 31: As revised by Plaintiffs, RFP No. 29 seeks, “[t]o
`
`the extent not produced in response to Plaintiffs’ First Requests, documents
`
`concerning or relating to the supply of processed milk in, into, or from the
`
`Relevant Area by DFA, Dean, or a competitor, to Food Lion or other major
`
`customers in the Relevant Area.” The request for documents “to the extent not
`
`produced” in response to prior requests is an inappropriate “catch all” request
`
`that fails to specify the requested documents with reasonable particularity. See
`
`U.S. ex rel. Fago v. M & T Mortgage Corp., 238 F.R.D. 3, 13 (D.D.C. 2006)
`
`(“Such a catch-all request cannot operate as a substitute for tailored document
`
`requests.”) Moreover, the request for documents “concerning or relating” to the
`
`supply of processed milk” suffers
`
`from the same overbreadth and
`
`proportionality issues discussed above.
`
`RFP No. 31 is a similarly broad request for “[a]ll documents concerning
`
`or relating to DFA’s, Dean’s, or any other company’s” pricing in connection with
`
`
`
`20
`
`Case 1:20-cv-00442-CCE-JLW Document 54 Filed 09/01/20 Page 20 of 23
`
`
`
`raw or processed milk sales in the Relevant Area (emphasis added). This
`
`request essentially asks for every document relating to raw or fluid milk
`
`pricing in DFA’s possession, and suffers from the “all documents concerning or
`
`relating” defect as discussed above. Moreover, DFA has already produced data
`
`regarding its actual sales of raw and processed milk in the Relevant Area. DFA
`
`does not dispute that pricing data is relevant to Plaintiffs’ allegations in this
`
`case, but Plaintiffs’ catch-all request for every document “concerning or
`
`relating” to milk pricing is overbroad and disproportionate.
`
`CONCLUSION
`For the reasons set forth above, DFA requests that the Court enter a
`
`protective order providing that DFA need not respond to Plaintiffs’ Requests
`
`for Production Nos. 25 through 27, 29, 31, and 40 through 50, and to grant such
`
`other relief as it deems necessary and appropriate.
`
`
`
`
`
`
`
`21
`
`Case 1:20-cv-00442-CCE-JLW Document 54 Filed 09/01/20 Page 21 of 23
`
`
`
`
`
`Date: September 1, 2020
`
`Respectfully submitted,
`
`
`BAKER & MILLER PLLC
`W. Todd Miller*
`Amber McDonald*
`2401 Pennsylvania Avenue N.W.
`Suite 300
`Washington, D.C. 20037
`Phone: 202-663-7820
`Fax: 202-663-7849
`TMiller@bakerandmiller.com
`AMcDonald@bakerandmiller.com
`
`LATHAM & WATKINS LLP
`Michael G. Egge*
`555 Eleventh Street, NW
`Washington, DC 20004-1304
`Phone: 202-637-2285
`Michael.Egge@lw.com
`Attorneys for
`Dairy Farmers of America, Inc.
`
`*By Special Appearance
`
`
`
`
`WOMBLE BOND DICKINSON (US)
`LLP
`
` /s/ Brent F. Powell
`James P. Cooney III
`N.C. State Bar No. 12140
`Sarah Motley Stone
`N.C. State Bar No. 34117
`One Wells Fargo Center,
`301 S College St
`Suite 3500
`Charlotte, North Carolina 28202
`Phone: 704-331-4900
`Fax: 704-331-4955
`Jim.Cooney@wbd-us.com
`Sarah.Stone@wbd-us.com
`
`
`Brent F. Powell
`N.C. State Bar No. 41938
`One West Fourth Street
`Winston-Salem, North Carolina 27101
`Phone: 336-721-3600
`Fax: 336-721-3660
`Brent.Powell@wbd-us.com
`
`Attorneys for Dairy Farmers of America, Inc.
`
`
`
`
`
`22
`
`Case 1:20-cv-00442-CCE-JLW Document 54 Filed 09/01/20 Page 22 of 23
`
`
`
`CERTIFICATE OF COMPLIANCE WITH WORD COUNT
`
`I hereby certify that the foregoing brief complies with the word limits in
`
`Local Rule 7.3.
`
`
`
`
`
`
`/s/ Brent F. Powell
`Brent F. Powell (N.C. Bar No. 41938)
`WOMBLE BOND DICKINSON (US) LLP
`One West Fourth Street
`Winston Salem
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