IN RE PORK ANTITRUST LITIGATION

Background

Class Plaintiffs moved to compel Hormel Foods Corporation to produce responsive text-message content from currently employed custodians, including cloud backups. They also sought to enforce subpoenas directed to Hormel custodians, require Hormel to image all custodians’ personal phones and cloud backups, and obtain a declaration that Hormel had been required to do so from the beginning of the litigation.

The coordinated litigation involves putative classes and direct-action plaintiffs who allege that major pork producers and integrators conspired to limit pork supply and fix prices. The alleged conduct included exchanging competitively sensitive information through Agri Stats and publicly signaling the need to reduce production.

Hormel initially agreed to forensic imaging of five executives’ personal phones. The parties later adopted protocols concerning electronically stored information and phone-record preservation. The number of Hormel custodians eventually reached thirty: seventeen current employees and thirteen former employees. The custodians objected to the subpoenas, and the parties could not agree on the scope, method, or cost of searching their phones and backups.

Hormel’s Control Over Personal Text Messages

Under Rule 34, a party must produce responsive documents in its possession, custody, or control. The court explained that courts have used both a legal-right standard and a practical-ability standard for determining control, but it did not need to choose between them because Plaintiffs failed under either standard to show that Hormel controlled text messages on employees’ personally owned phones.

Hormel’s bring-your-own-device policy allowed employees with a defined business need to use personal phones to access certain Hormel systems. Hormel claimed ownership of data sourced from its systems and synchronized with its servers, such as company email, calendars, and contacts. The policy did not claim ownership of personal text messages or expressly give Hormel the ability to access, inspect, copy, or image them.

The MobileIron application prevented copying or backing up Hormel-owned data, but it did not allow Hormel to access or image text messages. Hormel could remotely wipe a phone to remove company data, but that process could also delete personal data. The court held that this ability to erase personal messages during a factory reset did not give Hormel legal or practical control over them.

The court also rejected Plaintiffs’ argument that Hormel’s employment relationship with its custodians gave it practical control. The fact that five executives previously agreed to have their phones imaged for preservation did not show that Hormel could demand access to inspect or produce their messages, and it did not establish that the other custodians would agree. The court therefore denied the portion of the motion seeking to compel Hormel to collect, review, and produce responsive messages from employees’ personally owned phones.

Subpoenas to the Custodians

The court considered Requests Nos. 1 and 5. Request No. 1 sought text messages exchanged during the relevant period with employees or representatives of pork integrators, or with anyone with whom the custodian discussed pork-industry supply and demand. Request No. 5 sought information about archived cellphone data and access for a forensic vendor.

The court concluded that the custodians’ interviews did not adequately establish that responsive texts were nonexistent. Jessica Chenoweth was the exception because she stated that she never used her personal cellphone for work-related communications. If she submitted a sworn declaration repeating that statement, the court would not enforce Requests Nos. 1 and 5 against her.

For the remaining custodians, the court overruled objections based on vagueness, ambiguity, and availability of the information from cellphone providers. The providers did not have message content, and the custodians offered no concrete support for the claim that another source would provide that content.

The court found that imaging and searching the phones could impose costs, inconvenience, and privacy concerns, but the custodians had not provided enough evidence to establish the claimed burden or show that less intrusive extraction methods were unavailable. The court concluded that targeted searches and the existing protective order could manage the privacy concerns.

The court nevertheless found Requests Nos. 1 and 5 overly broad because they could reach all messages exchanged with 781 listed phone numbers regardless of content, all archived cellphone data, and a uniform period that did not account for each custodian’s particular job responsibilities. The requests therefore had to be narrowed to relevant and proportional information.

Modified Search and Preservation Requirements

The court granted enforcement of Requests Nos. 1 and 5 for all custodians except Chenoweth, subject to a modified scope and search protocol. Each subpoena was limited to the period or periods when the particular custodian held the position that led Plaintiffs to identify that person as a custodian.

The custodians’ current-phone data, older-phone data, and archived or backup data had to be searched first for messages sent to or received from any of Plaintiffs’ 781 listed phone numbers during the applicable period. The number of resulting messages had to be reported to Plaintiffs’ counsel. Custodian counsel could manually review the messages for relevance, or the attorneys could agree on a message-volume threshold that would trigger additional search terms and relevance review.

The custodians were ordered to preserve text-message data, including archived and cloud-stored data, from January 1, 2008, through August 17, 2018, until December 31, 2022, or another date agreed upon by the parties or ordered by the court. Chenoweth also had to preserve messages from that period, or arrange for imaging and preservation at the shared expense of Hormel and Plaintiffs.

The court directed Plaintiffs’ counsel, Hormel’s counsel, and the custodians’ counsel to meet and confer about which devices should be imaged or from which devices message data should instead be extracted. Reasonable costs for imaging or extraction, and for converting and storing data from phones, archives, or cloud storage, were to be split equally between Class Plaintiffs and Hormel.

Hormel’s Preservation Duty

The court denied Plaintiffs’ request for a declaration that Hormel had been required from the outset of the litigation to image personal phones and preserve cloud backups. Because Hormel did not control the text messages on the personally owned phones, and because Hormel had communicated litigation holds to reasonably anticipated custodians, Plaintiffs had not shown that Hormel’s preservation efforts were inadequate. The court stated that its forward-looking preservation requirements addressed Plaintiffs’ preservation concerns.

Disposition

Judge Hildy Bowbeer ordered that Class Plaintiffs’ motion to compel Hormel to produce responsive text-message content and to enforce subpoenas to Hormel custodians was GRANTED IN PART and DENIED IN PART as described in the order.