Case 2:19-cv-00463-RAJ-LRL Document 222 Filed 08/28/20 Page 1 of 3 PageID# 2793
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF VIRGINIA
`Norfolk Division
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`IN RE PEANUT FARMERS
`ANTITRUST LITIGATION
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`CIVIL ACTION NO. 2:19cy463
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`ORDER
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`Before the Court is Plaintiffs' Motion to Compel Defendant Birdsong Corporation to
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`Comply with its Discovery Obligations ("Motion to Compel") and memorandum in support. BCF
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`Nos. 185-86. Concurrently, Plaintiffs filed a Motion to expedite briefing, which the Court denied
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`on the grounds that Plaintiffs failed to participate in a good faith meet and confer before filing their
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`Motion to Compel. ECF No. 208. After the parties engaged in a good faith meet and confer.
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`Defendant Birdsong ("Birdsong") filed an opposition, ECF No. 213, and Plaintiffs filed a reply,
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`ECF No. 215. Accordingly, the Motion to Compel is fully briefed and ready for disposition. For
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`the following reasons. Plaintiffs' Motion to Compel is GRANTED in part, and DENIED in part.
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`Plaintiffs' Motion to Compel raises the following issues: (1) that Birdsong has not
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`produced all of its Document Custodian's Custodial documents; (2) that Birdsong has improperly
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`redacted documents from Mr. Franke's journal on relevancy grounds; (3) that Birdsong has
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`improperly redacted documents based on privilege; and (4) that Birdsong failed to fully produce
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`cell phone data. See ECF No. 186. After engaging in a meet and confer, the parties resolved the
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`first and third issues, and accordingly the Motion to Compel is DENIED as MOOT with respect
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`to those issues.
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`With respect to the second issue, Plaintiffs' argue that Birdsong has improperly redacted
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`documents from Mr. Franke's four journals on relevancy grounds. Attached to its opposition,
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`Birdsong included examples of the types of entries it redacted from Mr. Franke's journal—
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`including entries about Mr. Franke's personal affairs regarding his friends and family, and his
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`personal farming business. ECF No. 213, attachs. 8,9. The parties dispute whether the ESI Order
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`entered in this case prohibits relevancy redactions, and whether Birdsong is required to produce
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`each joumal entry regardless of whether it is responsive to discovery requests or otherwise relevant
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`in this case.
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`Under Federal Rule of Civil Procedure 26(b), "[pjarties may obtain discovery regarding
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`any nonprivileged matter that is relevant to any party's claim or defense and proportional to the
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`needs of the case[.]" Fed. R. Civ. P. 26(b). Other than the fact that the ESI Order may or may not
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`prohibit relevancy redactions. Plaintiffs' have not demonstrated any reason why Mr. Franke's
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`personal joumal entries would be relevant to this case. Plaintiffs have made no argument that Mr.
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`Franke's personal joumal entries would appear to "reasonably calculated to lead to the discovery
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`of admissible evidence." Id. Because Plaintiffs have not identified any reason why Mr. Franke's
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`personal joumal entries are relevant, they are not within the scope of discovery and it was
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`appropriate for Birdsong to redact his joumal accordingly. Therefore, the Motion to Compel is
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`DENIED with respect to the Plaintiffs' request that Birdsong be required to produce Mr. Franke's
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`unredacted journal entries.
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`With respect to the fourth issue. Plaintiffs' request that the Court compel Birdsong to
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`collect and review the back-up archives associated with Birdsong's document custodians' cell
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`phones. Plaintiffs argue that such production is necessary because, based on productions from
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`other Defendants, it appears that there are relevant text messages that Birdsong has not produced
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`from its document custodians. Birdsong argues that the ESI order does not require them to produce
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`text messages from archives/backups associated with the devices, and that its already-made
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`production is sufficient. ECF No. 213. The Court is not persuaded by Plaintiffs' argument that
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`because Defendant Golden Peanuts produced more text messages than Birdsong, Birdsong must
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`produce more data. However, as recognized by Birdsong, texting habits, cell phone storage
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`capacity, and text-message deletion habits all vary amongst individuals. ECF No. 213 at 13-14.
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`Under these circumstances. Plaintiffs have demonstrated that the production of cell phone backups
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`stored in the cloud may lead to relevant information, and Birdsong should be required to produce
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`this data. Therefore, the Motion to Compel is GRANTED with respect to Plaintiffs request that
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`Birdsong produce archived backups of its document custodians' cell phones, to the extent such
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`archived backups exist.
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`In sum. Plaintiffs' Motion to Compel, ECF No. 185, is DENIED as MOOT with respect
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`to the first and third issues, DENIED with respect to the second issue, and GRANTED with
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`respect to the fourth issue.
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`The Clerk is DIRECTED to forward a copy of this Order to all counsel of record.
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`It is so ORDERED.
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`Norfolk, Virginia
`August 28,2020
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`Lawrence R. Leonard
`United States Magistrate Judge
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