IN RE PORK ANTITRUST LITIGATION

Background

Certain direct-action plaintiffs—Compass Group USA, Inc.; Conagra Brands, Inc.; Howard B. Samuels solely as Trustee for the estate of Central Grocers, Inc.; Nestlé USA, Inc.; Nestlé Purina PetCare Company; Amory Investments LLC; and Sysco Corporation—asked the court to require Hormel Foods Corporation, Hormel Foods LLC, JBS USA, INC., Smithfield Foods, Inc., Tyson Foods, Inc., and Tyson Fresh Means, Inc. to produce structured sales data.

The requested data concerned four categories: hot dogs and various franks containing pork or non-pork meat; multi-ingredient products such as pepperoni, breakfast burritos, sausage tots, and sausage rolls; offal products removed during processing; and renderings and by-products such as blood meal and bone meal. The plaintiffs argued that the data was needed to assess the impact and harm they suffered from the alleged conspiracy. Clemens Food Group and Seaboard Foods were excluded because they had produced the requested data.

The parties’ scheduling materials set deadlines for substantial sales-data production and additional structured data. The plaintiffs requested the data in October 2021, but the defendants did not produce it because they viewed it as outside the agreed scope. The plaintiffs filed their motion to compel in September 2022, nearly a year after requesting the data and shortly before the close of fact discovery.

Magistrate Judge’s Order and Objections

The magistrate judge denied the motion to compel on November 16, 2022. The magistrate judge found that the data was marginally relevant but that the request was untimely and disproportionate. The magistrate judge also concluded that granting the motion might require changing the pretrial schedule and that the plaintiffs had not shown the good cause required to modify that schedule.

The plaintiffs objected under the local rule governing review of a magistrate judge’s order on a nondispositive pretrial matter. They argued that the timeliness finding was wrong, that some defendants had not provided enough evidence showing that production would be burdensome, that the plaintiffs did not have equal access to the data, and that the magistrate judge should have discussed an order from the related Broiler Chickens antitrust litigation.

Court’s Analysis

The district court applied the deferential standard in Federal Rule of Civil Procedure 72(a) and 28 U.S.C. § 636(b)(1)(A). It could reverse only if the magistrate judge’s order was clearly erroneous or contrary to law. A finding is clearly erroneous when the reviewing court is left with a firm conviction that a mistake was made.

On timeliness, the court concluded that the plaintiffs had notice through earlier correspondence that the requested data would be excluded from the defendants’ structured sales-data production. The plaintiffs nevertheless waited until September 2022 to seek an order compelling production. Although the motion was filed before the deadline for nondispositive motions, the court agreed that it could still be untimely. The plaintiffs also did not show the diligence and good cause needed to modify the scheduling order.

On relevance and proportionality, the court accepted that the requested data might be somewhat relevant because some plaintiffs purchased significant quantities of the products. But the court held that the magistrate judge reasonably found the request disproportionate. The magistrate judge had considered the burden and expense of production, the parties’ access to information, delay, party resources, and the amount in controversy. The district court also concluded that the magistrate judge had enough information, including two defense affidavits and common sense, to assess the burden even though JBS and Smithfield had not submitted separate affidavits.

The court further found no clear error in the magistrate judge’s view that the plaintiffs were likely to have purchase records comparable to the defendants’ sales records. The plaintiffs had not explained why their own records were insufficient. Finally, the magistrate judge did not act improperly by failing to discuss the Broiler Chickens order expressly; a magistrate judge need not address every argument separately when the record shows the issue was considered.

Disposition

The court held that the magistrate judge did not commit clear error or act contrary to law in denying the motion to compel. Judge John R. Tunheim therefore overruled the Moving DAPs’ objections to the magistrate judge’s November 16, 2022 order. The opinion addressed the discovery dispute and did not decide the merits of the alleged pork antitrust conspiracy.