Poultry industry data company Agri Stats Inc. lost its bid to trim down the scope of a request for electronic documents in a lawsuit accusing chicken producers of fixing poultry prices.
Tyson Foods Inc., Perdue Farms Inc., and other producers in the broiler chicken industry are defending consumer claims that they conspired to raise prices. Agri Stats, which is also a defendant in the class action, facilitated the price-fixing conspiracy by providing chicken producers with the information they needed to monitor each other, the consumers allege.
Agri Stats requested an order that would exempt it from searching for electronic records created prior to Oct. 3, 2012—the date a DOJ investigation closed. It claimed that the searches it ran for the DOJ investigation—for the period between 2008 and 2010—are sufficient for this case.
Agri Stats must comply with the ESI protocol that is applicable to all other defendants in this case, Jeffrey T. Gilbert, of the U.S. District Court for the Northern District of Illinois, said.
The parties in January agreed to the ESI protocol, which governs the production of electronically stored information. The protocol sets the time frame for discovery from January 1, 2007 until September 2, 2016.
The DOJ investigation related to “possible agreements to exchange competitively sensitive price and cost information in the broiler, turkey, egg, swine, beef and dairy industries,” according to the court’s ruling.
Agri Stats shouldn’t be excused from conducting searches that correlate to consumer plaintiffs’ claims just because it performed similar searches in connection with a DOJ investigation into different allegedly anti-competitive conduct, he said. That investigation focused on conduct that is different from the allegations “at the heart of” this case.
The proposed order would also leave gaps totaling of more than 3 1/2 years during the discovery period in this case: from January 2007 to September 2008, and from September 2010 to October 2012.
Continue to Meet and Confer
It would be too burdensome to conduct expensive searches that have already been run, Agri Stats said. It estimated that the cost to run the consumers’ proposed search would be between $1.2 to $1.7 million.
But the company never broke down how it calculated this estimate, Gilbert said. The estimate also doesn’t take into account that the consumer plaintiffs have since agreed to reduce the scope of their proposed search.
“It seems that Agri Stats itself also does not know for sure what it would have to do and how much it would cost because the parties have not finished that discussion,” he said.
There is good cause for conducting a search for the time frame set forth in the protocol, Gilbert said.
There will likely be overlap between the information Agri Stats gave to the DOJ and the information sought by consumer plaintiffs. That overlap doesn’t justify a protective order, he said.
Here, the plaintiffs are requesting Agri Stats use different search terms.
“Because these terms were not searched during the DOJ investigation, there is no burden associated with purported duplication at least to the extent that data is now queried with search terms proposed by the [plaintiffs],” Gilbert said. “Moreover, omitting these search terms runs the risk that information that is very relevant to [plaintiffs’] case but was not as relevant to the DOJ investigation will be missed.”
The court also advised the parties to continue conferring on issues related to how Agri Stats should perform its search.
“With this decision, the Court does not intend to prevent further discussion, but rather encourages the parties to resume or continue talking in an effort to resolve any remaining disputes,” he said.
The case is In re Broiler Chicken Antitrust Litig., N.D. Ill., 16 C 8637, 7/26/18.