`
`IN THE UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF VIRGINIA
`Norfolk Division
`
`IN RE PEANUT FARMERS ANTITRUST
`LITIGATION
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`Case No. 2:19-cv-463-RAJ-LRL
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` DEFENDANT BIRDSONG CORPORATION’S MEMORANDUM IN OPPOSITION TO
`PLAINTIFFS’ MOTION TO COMPEL PRODUCTION OF STRUCTURED DATA
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`Defendant Birdsong Corporation (“Birdsong”), by counsel, pursuant to Local Civil Rule 7,
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`states as follows in opposition to the Motion to Compel (ECF No. 158) filed by Plaintiffs:
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`I.
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`Introduction
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`Plaintiffs’ Second Amended Complaint has a well-defined scope for their theoretical
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`conspiracy. They allege that Defendants Birdsong, Golden Peanut Company, LLC (“Golden”),
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`and Olam Peanut Shelling Company, Inc., f/k/a McCleskey Mills, Inc. (“Olam”) (collectively,
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`“Defendants”) conspired to fix prices for Runner peanuts purchased from farmers in the United
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`States market from 2014 to present. See Second Am. Compl. ¶ 92. Despite limiting the scope of
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`their claim to Runner peanuts, Plaintiffs now seek detailed purchasing data from Birdsong for
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`peanuts other than Runner peanuts. Birdsong’s data on other peanuts is not relevant to Plaintiffs’
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`claim of price fixing for Runner peanuts. Additionally, Plaintiffs seek data from years outside their
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`alleged conspiracy not relevant to Plaintiffs’ claim. The Court should deny Plaintiffs’ motion, as
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`Birdsong has already agreed to produce, and has produced, its relevant structured data for Runner
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`peanuts for years 2013, 2014, 2015, 2016, 2017, 2018, and 2019. Anything more is beyond the
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`scope of discovery.
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`Case 2:19-cv-00463-RAJ-LRL Document 168 Filed 06/12/20 Page 2 of 11 PageID# 2014
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`II.
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`Background
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`A.
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`Birdsong’s Structured Data
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`Although Plaintiffs paint with a broad brush in their Memorandum, Birdsong maintains
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`several distinct sets of structured data, and it has agreed to produce three sets of structured data in
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`response to discovery. First, Birdsong maintains a data set of all contracts it enters into with peanut
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`farmers to purchase Runner peanuts (the “Contracts Data”). Second, Birdsong maintains a data set
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`of information related to all of its purchases made from farmers for Runner peanuts, as those
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`purchases are recorded on form FSA-1007 (the Inspection Certificate and Calculation Worksheet
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`for peanuts used by USDA) (the “1007 Data”). Third, Birdsong maintains a data set of information
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`related to all of its sales of shelled Runner peanuts to Birdsong’s customers (the “Customer Data”).
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`B.
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`Structured Data Birdsong Has Already Agreed to Produce
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`Although Plaintiffs confusingly state that “Birdsong has agreed to produce 1 year of
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`structured data, i.e., data going back to January 1, 2013,” (ECF No. 158, at 10), Birdsong
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`previously agreed to produce, and has produced, seven (7) years of structured data. Birdsong has
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`produced Contracts Data, 1007 Data, and Customer Data for years 2013, 2014, 2015, 2016, 2017,
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`2018, and 2019.
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`In addition to agreeing to produce seven years of structured data, Birdsong has answered a
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`multitude of serial questions posed by Plaintiffs via email about the samples of Birdsong’s
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`structured data provided by Birdsong in advance of today’s production. See, e.g., (ECF No. 158-
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`4). Plaintiffs requested certain changes and additions to the sample spreadsheets of exported
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`Birdsong data that Birdsong has previously provided to Plaintiffs, and Birdsong has made those
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`requested changes and additions where possible and practicable. Notwithstanding these
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`2
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`Case 2:19-cv-00463-RAJ-LRL Document 168 Filed 06/12/20 Page 3 of 11 PageID# 2015
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`accommodations already made and additional information provided, Plaintiffs seek more.
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`However, what they seek is not relevant.
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`C.
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`USDA Data Previously Produced
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`Birdsong keeps the data that it submits to the United States Department of Agriculture
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`(“USDA”) and National Agriculture Statistic Services (“NASS”) on a weekly basis and the reports
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`it submits on a monthly basis (collectively the “USDA Data”). On March 28, 2020, Birdsong
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`produced to Plaintiffs the USDA Data that it has for years 2013, 2014, 2015, 2016, 2017, 2018,
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`and 2019.1
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`III. Argument
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`Rule 26 of the Federal Rules of Civil Procedure provides that “[p]arties may obtain
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`discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and
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`proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1). The structured data Plaintiffs seek
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`is not relevant or probative of relevant issues based on the data Birdsong has already produced.
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`A.
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`Birdsong’s Non-Runner Peanut Data Is Not Relevant.
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`In their Memorandum, Plaintiffs state that “non-Runner peanut data . . . is relevant to
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`Plaintiffs, in part, to establish a ‘benchmark’ to help determine and estimate overcharges for
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`Runner peanuts.” (ECF No. 158, at 2). They repeat this same sentence twice more, on pages 6 and
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`13. That is the extent of Plaintiffs’ argument as to why non-Runner peanut data is relevant.
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`Plaintiffs do not explain how Birdsong’s purchases of non-Runner peanuts will serve as a
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`benchmark for prices for Birdsong’s purchases of Runner peanuts. Indeed, their Second Amended
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`1 Birdsong maintains the weekly data submitted to USDA and NASS for 2013 through 2019 and
`has produced that data in the form of Excel spreadsheets by year in native format. For the monthly
`reports submitted to USDA and NASS, Birdsong only has those reports back to 2014 and has
`produced them in native format for 2014 through 2019. Birdsong’s monthly reports for 2013 and
`earlier years no longer are available based on Birdsong’s five (5) year document retention policy.
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`3
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`Case 2:19-cv-00463-RAJ-LRL Document 168 Filed 06/12/20 Page 4 of 11 PageID# 2016
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`Complaint acknowledges that it “focuses on Runner Peanuts, although Defendants’ conspiracy
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`may also involve the other Peanut types.” Second Am. Compl. ¶ 38. Plaintiffs are not entitled to
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`unfettered access to Birdsong’s data.2
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`“Courts have limited the subject matter scope of discovery to evidence concerning only
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`specific products and entities that a plaintiff identifies in its complaint.” Inline Packaging, LLC v.
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`Graphic Packaging Int’l, Inc., No. 15-cv-3183(ADM/LIB), 2016 U.S. Dist. LEXIS 192196, at *15-
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`16 (D. Minn. July 25, 2016) (citing In re Skelaxin (Metaxalone) Antitrust Litig., 292 F.R.D. 544,
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`551, 555 (E.D. Tenn. 2013) (denying motion to compel discovery to the extent the motion sought
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`evidence concerning products other than those specifically identified in the complaint and to the
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`extent that the motion sought evidence of other antitrust suits involving the defendants that were
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`not mentioned in the complaint); Eisai Inc. v. Sanofi-Aventis U.S., LLC, No. CIV.A. 08-4168
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`MLC, 2011 U.S. Dist. LEXIS 128447, 2011 WL 5416334, at *8 (D. N.J. Nov. 7,
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`2011) (same); MacDermid Printing Sols., L.L.C. v. E.I. du Pont de Nemours & Co., No. CIVA07-
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`4325(MLC), 2008 U.S. Dist. LEXIS 8285, 2008 WL 323764, at *1 (D. N.J. Feb. 5, 2008) (“[T]he
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`discovery rules are designed to assist a party to prove a claim that it reasonably believes to be
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`viable without discovery, not to find out if it has any basis for a claim.”) (citations omitted); United
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`States Willis v. SouthernCare, Inc., No. CV410-124, 2015 U.S. Dist. LEXIS 127746, 2015 WL
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`2 It is too late for Plaintiffs to argue that they should be allowed to amend the complaint for a third
`time, to add earlier years and/or non-Runner peanuts to the conspiracy allegations. They have
`known of these potential claims since they filed the initial complaint, and they have previously
`amended the complaint twice, the most recent occasion to add a new alleged co-conspirator, Olam.
`The parties have moved to extend the trial date and to adjust the factual and expert discovery
`deadlines accordingly. Any efforts to justify this discovery to add new claims to the complaint
`should be rejected, as it would require an entirely new discovery and trial schedule, over and above
`the one the parties are presently seeking to address the late addition of Olam as an alleged co-
`conspirator.
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`4
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`Case 2:19-cv-00463-RAJ-LRL Document 168 Filed 06/12/20 Page 5 of 11 PageID# 2017
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`5604367, at *9 (S.D. Ga. Sept. 23, 2015) (granting motion to quash subpoena seeking discovery
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`unrelated to claims or defenses already specifically alleged in the case)).
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`For example, in Inline Packaging, LLC v. Graphic Packaging Int’l, Inc. (an antitrust suit
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`concerning microwave susceptor food packaging), the Court held that “the subject matter scope of
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`relevance in the present case includes only the products, patents, entities, and instances of conduct
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`that Inline specifically identified in the Complaint.” Id. at *28 (emphasis added). Therefore, it
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`denied the motion to compel at issue to the extent it dealt with products other than those
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`specifically identified in the plaintiff’s complaint. See id.
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`Here, Plaintiffs’ Second Amended Complaint intentionally only alleges a conspiracy to fix
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`prices of Runner peanuts, not other peanuts. Other than passing references and definitions, the
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`Second Amended Complaint contains no actual allegations concerning Virginia, Spanish, or
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`Valencia peanuts. They are not relevant to Plaintiffs’ claim. Although Plaintiffs speculate about
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`other peanuts in the Second Amended Complaint and note that their “investigation continues,”
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`Second Am. Compl. ¶ 38, “the discovery rules are designed to assist a party to prove a claim that
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`it reasonably believes to be viable without discovery, not to find out if it has any basis for a claim.”
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`MacDermid Printing Sols., L.L.C., 2008 U.S. Dist. LEXIS 8285, 2008 WL 323764, at *1 (citations
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`omitted). Moreover, Plaintiffs leave wholly unexplained how non-Runner peanut prices will
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`establish a benchmark for Runner peanut prices. Plaintiffs only point out that the USDA collects
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`all peanut data (Runner, Virginia, Spanish, and Valencia) and that Plaintiffs cannot obtain from
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`the USDA and NASS “the information Birdsong provides.” (ECF No. 158, at 13-14).
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`Plaintiffs state that NASS published weekly and monthly reports but that the surveys could
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`be unreliable so “Birdsong is the only source” for this data. (ECF No. 158 at 3, 12). If the USDA
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`and NASS data on all peanut types is what Plaintiffs are seeking to review, Birdsong already has
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`5
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`produced that information to Plaintiffs in response to discovery on March 28, 2020. Specifically,
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`Birdsong already produced to Plaintiffs the USDA Data: the weekly data for 2013 through 2019
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`and the monthly data for 2014 through 2019 that Birdsong submits to USDA and NASS.
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`On a weekly basis, Birdsong transmits electronically weekly reports to NASS containing
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`the purchase price of peanuts per pound purchased (redeemed or direct purchased and option
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`amounts) of all types of peanuts for that week including quantity information, filed by state.
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`Birdsong already produced the Excel spreadsheets that contain the weekly information that it
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`reported to USDA and NASS for all weeks between 2013 and 2019. A true and accurate sample
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`of one of these reports is attached as Exhibit A. When produced to Plaintiffs, all of the columns
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`of Exhibit A were completed; Birdsong has removed the data in these columns solely for Exhibit
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`A based on the Highly Confidential nature of the information redacted.
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`On a monthly basis, Birdsong submits Peanut Stocks and Processing Reports, and the
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`report contains information broken out by peanut type so there is a column for Valencia, Virginia,
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`Runner, and Spanish. These reports address inventory, receipts, and disposition of peanuts for each
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`of the four peanut types. A true and accurate sample of one of these reports is attached as Exhibit
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`B so that the Court can see the type of information already provided by Birdsong to Plaintiffs.
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`For the reasons stated above, non-Runner peanut data is not relevant to a suit about Runner
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`peanuts. Even if such information were relevant, Birdsong already has produced to Plaintiffs the
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`exact information that Plaintiffs claim in their Motion to Compel that they want – specifically the
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`weekly and monthly submissions made by Birdsong to USDA and NASS for all types of peanuts.3
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`3 Birdsong does not transmit data to USDA or NASS about each individual contract with a farmer
`or about its sales of shelled peanuts to customers. If Plaintiffs need non-Runner information from
`Birdsong because they cannot get that information from USDA or NASS, that argument rings
`hollow when discussing the Contracts Data (information on all contracts signed with farmers) and
`Customer Data (information on all sales made of non-Runner peanuts to Birdsong’s customers).
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`6
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`Accordingly, the Court should deny Plaintiffs’ Motion to Compel regarding non-Runner peanut
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`data as Plaintiffs already have the information that they claim they need from Birdsong.
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`B.
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`Plaintiffs’ Requested Time Period Is Not Reasonable.
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`While Birdsong acknowledges that Plaintiffs are entitled to a reasonable temporal scope
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`for their discovery, that entitlement is not unlimited.
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`As outlined in more detail above, Birdsong previously agreed to produce, and is producing,
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`seven (7) years of structured data. Earlier today, Birdsong produced Contracts Data, 1007 Data,
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`and Customer Data for years 2013, 2014, 2015, 2016, 2017, 2018, and 2019. That means that
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`Plaintiffs already are receiving structured data for one year before the alleged conspiracy.
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`Through the Motion to Compel, Plaintiffs are asking for three additional years of structured
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`data for 2010, 2011, and 2012. Multiple times in their Memorandum, Plaintiffs reference the fact
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`that Golden is producing structured data that predates 2013, stating that Birdsong “stands alone
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`in its refusal as Golden Peanuts is producing data that goes back to 2011 (pre-2011 data no longer
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`exists).” (ECF No. 158 at 2). Despite the number of times that Plaintiffs reference Golden’s
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`production in their Memorandum, the data Golden is producing is not relevant to what Birdsong
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`should have to produce to Plaintiffs.4 Indeed, Plaintiffs make no claim that they need to compare
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`or contrast Birdsong’s yearly data with Golden’s yearly data. Just because Golden chose not to
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`object to producing older data does not make that older data relevant.
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`provided by Birdsong for non-Runner peanuts because Birdsong does not report that data to USDA
`or NASS. This is another reason that Plaintiffs’ Motion to Compel on structured data should be
`denied.
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`4 If that is the case, then under Plaintiffs’ own theory, Birdsong should not have to produce any
`structured data for 2010 as Golden does not have that data available and thus is not producing it.
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`7
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`Turning to structured data for 2010, 2011, and 2012, Plaintiffs’ Memorandum in support
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`of the Motion to Compel does not have a section devoted to the reasons they claim structured data
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`for years prior to 2013 is relevant. Instead, the only argument section addressing data prior to 2013
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`argues that the data should be produced because it is reasonably accessible or because Plaintiffs
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`have established good cause. (ECF No. 158 at 9-13). Looking at Plaintiffs’ good cause argument,
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`Plaintiffs allege that they need the structured data because the industry/market is “opaque” and “to
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`establish an overcharge analysis that [Plaintiffs] will use to determine damages.” (ECF No. 158 at
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`12-13). Nothing about these arguments made by Plaintiffs explains why Contracts Data, 1007
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`Data, and Customer Data for years prior to 2013 are relevant.
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`The Contracts Data shows every contract that Birdsong signed with a farmer in a given
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`year for Runner peanuts. The 1007 Data shows every individual purchase that Birdsong made from
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`a farmer of Runner peanuts in a given year. The Customer Data shows every sale that Birdsong
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`made to every customer of shelled Runner peanuts in a given year. In the Motion to Compel,
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`Plaintiff have failed to address any of the three specific types of structured data that they are
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`seeking from Birdsong so it still is unclear how Contract Data, 1007 Data, and Customer Data for
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`2010, 2011, and 2012 are relevant.
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`Birdsong disputes any claims by Plaintiffs that producing Contract Data, 1007 Data, and
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`Customer Data for 2010, 2011, and 2012 will help make the market or industry be less “opaque.”
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`If understanding the industry is Plaintiffs’ goal, they already have seven years of structured data
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`to use to do that. Birdsong also disputes any claims by Plaintiffs that producing additional
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`structured data will help “to establish an overcharge analysis that [Plaintiffs] will use to determine
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`damages.” The Contract Data only shows the contracts that Birdsong entered into with farmers
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`(some of which are option contracts); it does not show whether Birdsong actually bought any
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`8
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`Case 2:19-cv-00463-RAJ-LRL Document 168 Filed 06/12/20 Page 9 of 11 PageID# 2021
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`peanuts from any farmers in a given year. The 1007 Data shows what peanuts Birdsong actually
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`bought from farmers, but Plaintiffs already has produced the 1007 Data and the USDA Data for
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`seven (7) years. The Customer Data shows what quantity of peanuts Birdsong sold to customers
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`and at what prices; it does not show anything related to what farmers were receiving in terms of
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`payments from Birdsong.
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`In addition, although Plaintiffs argue that it is “customary” in antitrust cases “to produce
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`pre-class period data,” the primary cases they cite are inapposite. (ECF No. 158, at 9). In re
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`Pressure Sensitive Labelstock Antitrust Litig. addressed a Motion for Class Certification and
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`Appointment of Class Counsel, not discovery or other relevance issues. No. 3:03-MDL-1556,
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`2007 WL 4150666, at *1 (M.D. Pa. Nov. 19, 2007). See (ECF No. 158, at 9). Similarly, Wilder
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`Enterprises, Inc. v. Allied Artists Pictures Corp. vacated a directed verdict and addressed various
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`expert issues for remand, with no mention of discovery or relevance. 632 F.2d 1135, 1143 (4th
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`Cir. 1980).
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`For the reasons stated above, the data Plaintiffs seek from Birdsong dating back before
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`2013 is unnecessarily cumulative and not relevant. Birdsong is already producing seven years of
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`structured data, including a year before the time at which Plaintiffs allege the conspiracy
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`commenced. Plaintiffs should not be entitled to additional structured data from Birdsong for
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`Runner peanuts.
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`IV. Conclusion
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`Based on the foregoing reasons, the Court should deny Plaintiffs’ Motion to Compel, such
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`that Birdsong is not required to produce any additional structured data to Plaintiffs.
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`9
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`BIRDSONG CORPORATION
`
`/s/ Kristan B. Burch
`Stephen E. Noona (VSB No. 25367)
`Patrick H. O’Donnell (VSB No. 29637)
`Kristan B. Burch (VSB No. 42640)
`Clark J. Belote (VSB No. 87310)
`KAUFMAN & CANOLES, P.C.
`150 W. Main Street, Suite 2100
`Norfolk, VA 23510-1665
`Telephone: (757) 624-3000
`Facsimile: (888) 360-9092
`senoona@kaufcan.com
`phodonnell@kaufcan.com
`kbburch@kaufcan.com
`cjbelote@kaufcan.com
`Counsel for Birdsong Corporation
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`Thomas W. Craddock, Esq.
`MCGUIRE, CRADDOCK & STROTHER, P.C.
`2501 N. Harwood, Suite 1800
`Dallas, TX 75201
`Telephone: (214) 954-6834
`Fax: (214) 954-6868
`tcraddock@mcslaw.com
`(admitted pro hac vice)
`
`Counsel for Birdsong Corporation
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`10
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`Case 2:19-cv-00463-RAJ-LRL Document 168 Filed 06/12/20 Page 11 of 11 PageID# 2023
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`CERTIFICATE OF SERVICE
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`I hereby certify that on June 12, 2020, I electronically filed the foregoing with the Clerk of
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`the Court using the CM/ECF system which will automatically email notification of such filing to
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`all counsel of record who have made a formal appearance.
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`/s/ Kristan B. Burch
`Stephen E. Noona (VSB No. 25367)
`Patrick H. O’Donnell (VSB No. 29637)
`Kristan B. Burch (VSB No. 42640)
`Clark J. Belote (VSB No. 87310)
`KAUFMAN & CANOLES, P.C.
`150 W. Main Street, Suite 2100
`Norfolk, VA 23510-1665
`Telephone: (757) 624-3000
`Facsimile: (888) 360-9092
`senoona@kaufcan.com
`phodonnell@kaufcan.com
`kbburch@kaufcan.com
`cjbelote@kaufcan.com
`Counsel for Birdsong Corporation
`
`18499601v4
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`11
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