Opinion

In re Broiler Chicken Antitrust Litigation

Court
District Court, N.D. Illinois
Filed
Jan 19, 2022
Cited by
0 cases
Authority
More cited than 21.0%

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

IN RE BROILER CHICKEN ANTITRUST

LITIGATION

This Document Relates To: All Actions Case No. 16 C 8637

MEMORANDUM OPINION AND ORDER

Direct Action Plaintiffs’ (““DAPs”) Motion to Set Schedule for Defendants’

Responses to Contention Interrogatories [ECF No. 4732] is denied. The Court denies

DAPs’ request to set a schedule for Defendants to respond to their contention

interrogatories or, alternatively, to give DAPs leave to serve their new interrogatories

now. The Court agrees with Defendants that DAPs’ proposed new interrogatories,

which are attached to DAPs’ Motion as Exhibit A [ECF No. 4732-1], are untimely

under the discovery schedule in place when DAPs purported to serve those

interrogatories pursuant to the stipulation entered into by DAPs and Defendants on

May 1, 2019 [ECF No. 2193], which was embodied in the Court’s May 2, 2019 Order

[ECF No. 2197].

DAPs served their interrogatories on May 19, 2021. At that time, fact discovery

was set to close on June 11, 2021. See Scheduling Order No. 14 [ECF No. 3788]

(entered on August 28, 2020) and Scheduling Order No. 15 [ECF No. 4641] (entered

on May 138, 2021). Pursuant to the parties’ stipulation [ECF No. 2193], DAPs and

Defendants agreed that DAPs would serve their interrogatories no later than 60 days

before the fact discovery close date, which at that time would have required DAPs to

serve their interrogatories on or before April 12, 2021. Therefore, DAPs’ proposed

interrogatories were not timely when they were served on Defendants on May 19,

2021.

DAPs argue, however, that when the Court extended the fact discovery close

date to July 30, 2021, in its Order issued on May 25, 2021 [ECF No. 4714], which

memorialized rulings made during a hearing on May 24, 2021, then—presto—the

previously untimely served interrogatories were rendered timely.1 The Court

disagrees. The parties stipulated in May 2019, two years earlier, that DAPs were to

serve their interrogatories “no later than sixty (60) days prior to the then-current fact

discovery deadline.” [ECF No. 2193], at ¶ 3. The Court interprets the phrase “then-

current fact discovery deadline” to mean the fact discovery deadline at the time the

interrogatories were served; otherwise, it is completely ambiguous and meaningless,

and nobody would ever know whether interrogatories were timely when they were

served. In the Court’s view, all parties knew what that agreement meant, and DAPs

were late in serving their interrogatories.

Contrary to their initial position that they were not tardy, with which the

Court disagrees, DAPs alternatively say they were late in serving their proposed

interrogatories because it took them a long time to coordinate among themselves

about the 10 common interrogatories they wanted to serve. DAPs’ Reply [ECF No.

1 The Court notes that Scheduling Order No. 16 [ECF No. 4748], which was entered on June

17, 2021, currently is the operative case management order and includes the fact discovery

close date of July 30, 2121.

4774], at 2-3. That is well and good, but generally, a deadline is a deadline. It is not

a suggestion to be taken lightly or complied with only as a matter of choice.2 As the

Seventh Circuit has noted pithily, “[w]e live in a world of deadlines. If we’re late for

the start of the game or the movie, or late for the departure of the plane or the train,

things go forward without us. The practice of law is no exception. A good judge sets

deadlines, and the judge has a right to assume that deadlines will be honored. The

flow of cases through a busy district court is aided, not hindered, by adherence to

deadlines.” Spears v. City of Indianapolis, 74 F.3d 153, 157 (7th Cir. 2006). DAPs are

held to have known the April 12, 2021, deadline to serve contention interrogatories

with a discovery close date of June 11, 2021, and DAPs were over one month late in

serving those interrogatories on May 19, 2021. DAPs’ argument that the Court’s

limited extension of the fact discovery close date on May 24, 2021, now makes their

interrogatories timely served does not hold water.3

2 In McCann v. Cullinan, 2015 WL 4254226 (N.D. Ill. July 14, 2015), Judge Johnston

recognized the importance of deadlines that are set by the court and concluded that “[c]ounsel

must calendar and meet dates. And if counsel is going to miss a deadline, then counsel should

file a motion seeking an extension before the deadline has passed.” Id. at *2 (citing cases). In

Hard Surface Sols., Inc. v. Sherwin-Williams Co., 271 F.R.D. 612 (N.D. Ill. 2010), Judge Cole

noted “[u]nder the Federal Rules of Civil Procedure, it is the court’s prerogative-indeed, its

duty-to manage its caseload and to set and enforce discovery and other significant

deadlines…. A party does not have the option of complying with those deadlines or ignoring

them and then demanding that the court and the opposing party restructure the discovery

schedule to accommodate the violation.” Id. at 617 (citing Reales v. Consolid. Rail Corp., 84

F.3d 993, 996 (7th Cir. 1996)).

3 Further, in a slightly different vein, the subject of deadlines to respond to contention

interrogatories served before February 28, 2021, came up at a status hearing held on May 7,

2021. Hearing Transcript [ECF No. 4625], at 74-76, 80. Although the Court acknowledges

that this is a different issue, no mention was made at that time of DAPs’ intent to serve

additional contention interrogatories after the April 12, 2021, deadline had passed.

As the Court made clear during the May 24, 2021, hearing, when it extended

the fact discovery close date to July 30, 2021, to allow the parties to complete

discovery that was then in progress and had been timely served or noticed, the

extension of the fact discovery close date was not intended to give anyone free rein

“to serve additional written discovery about anything.” May 24, 2021 Hearing

Transcript [ECF No. 4814], at 20; 21-22 (“I would extend fact discovery to July 30th

for the taking of depositions and for the completion of discovery timely served.”). Under

that standard, DAPs’ proposed interrogatories remain untimely.

Further, DAPs have not shown good cause for their request that they be

allowed to serve their proposed interrogatories now and be excused from the deadline

to which they agreed years ago and which the Court memorialized in its May 2, 2019

Order. See [ECF No. 2197]. As this Court previously has recognized, the lynchpin for

a finding of good cause to modify a scheduling order under Federal Rule of Civil

Procedure 16(b)(4) for an extension of a discovery deadline after the fact is the party’s

due diligence. See Maui Jim, Inc. v. SmartBuy Guru Enters., 2019 WL 4140782, at *4

(N.D. Ill. Aug. 30, 2019); McCann, 2015 WL 4254226, at *10-12. Here, DAPs have not

shown their diligence to serve the interrogatories timely. DAPs were aware of the

deadline for over two years and provided no explanation other than it took them a

long time to coordinate among themselves to finalize their proposed interrogatories.

If DAPs were having a difficult time reaching a consensus, they could have asked

Defendants and/or the Court for more time. They made no such request, and the

Court wonders whether the April 12, 2021, deadline to serve these interrogatories

was even on DAPs’ radar given that, in many other instances in this case, parties

have asked for more time when deadlines were approaching and more time was

needed.

The Court also finds that DAPs have not shown good cause why they should

be excused from missing the April 12, 2021, deadline by more than 30 days. DAPs’

excuse is that it took time to coordinate among themselves and settle on 10

interrogatories to serve on Defendants. The Court does not know when the

coordination process began; DAPs say they “conferred and coordinated for several

weeks to decide which specific contention interrogatory subjects would be satisfactory

across all DAPs.” DAPs Reply [ECF No. 4775], at 2 (emphasis added). That easily

could mean DAPs did not begin to think about serving additional interrogatories until

after the April 12 deadline had passed. Nor do DAPs give any reason for not asking

for more time to serve their interrogatories before the deadline expired. Although this

is a huge case with many moving pieces and a lot going on at all times, that is not a

good reason to ignore an agreed upon deadline. See supra note 2.

In addition, Defendants have shown they will be unduly burdened and

prejudiced if the Court allows DAPs to serve their proposed interrogatories now.

Although the Court is not specifically ruling on the propriety of the interrogatories at

this time, the Court sees no reason to doubt Defendants’ representation that it would

take them hundreds or even thousands of hours to answer DAPs’ interrogatories.

Defendants’ Opposition [ECF No. 4752], at 11. That is burdensome.

In addition, the Court notes that, although DAPs characterize their

interrogatories as “contention” interrogatories, only five of the 10 proposed

interrogatories seem to fit that bill. See DAPs’ Third Set of Interrogatories to All

Defendants [ECF No. 4732-1], at Plaintiff Specific Interrogatory No. 2 and General

Interrogatory Nos. 5, 6, 7, 8. The others are run of the mill interrogatories, some of

which ask Defendants to provide responsive information for each of the 160 or so

individual DAPs. Id. at Plaintiff Specific Interrogatory No. 1 and General

Interrogatory Nos. 2, 3, 4. Interrogatories of that type are even more untimely and

burdensome when the parties were moving full speed ahead to try to complete fact

discovery that was served timely.

The Court sees no reason why many of these interrogatories could not have

been served, and should have been served, much earlier in the discovery process and,

importantly, consistent with the parties’ stipulation and Court’s May 2, 2019 Order.

[ECF Nos. 2193, 2197]. Although DAPs are correct that contention interrogatories

generally are served close to the end of fact discovery (hence, again, the parties’ long-

ago stipulation), it is not proportionate to the needs of the case to allow DAPs now to

serve interrogatories at the very end of fact discovery in this case when they by all

rights could have and should have been served long ago.

The Court also agrees with Defendants that some of the interrogatories are

duplicative of interrogatories served previously, and some contain multiple subparts

so the total number of interrogatories objectively exceed the 15 allowed by the

stipulation. See DAPs’ Third Set of Interrogatories to All Defendants [ECF No. 4732-

1], at Plaintiff Specific Interrogatory No. 1 and General Interrogatory Nos. 2, 3. In

addition, it appears that Defendants already have produced documents to DAPs from

which they can obtain the information they are seeking with these new

interrogatories. On that last point, while the Court understands Defendants can

identify those documents in answers to the interrogatories consistent with Federal

Rule 33(d), if the responsive documents are not readily discernible, that may not be

proportional to the needs of the case at this late juncture.

Finally, the Court recognizes that the Seventh Circuit has not addressed

whether prejudice to a non-movant is a proper consideration under Rule 16(b)(4)’s

“good cause” standard. See McCann, 2015 WL 4254226, at *11. However, to the extent

that prejudice to Defendants should factor into the Court’s analysis of DAPs’ Motion

[ECF No. 4732], that is a further reason to deny DAPs’ request for leave to serve their

proposed interrogatories late. As the parties now are focused on expert disclosures

and depositions [ECF Nos. 4748, 4976, 5014, 5178, 5256, 5302] and other matters,

Defendants should not be forced at this time to spend hundreds or thousands of hours

responding to interrogatories that by all rights should have been served well-before

they were served under the circumstances described herein.

Accordingly, for all these reasons, DAPs’ Motion to Set Schedule for

Defendants’ Responses to Contention Interrogatories [ECF No. 4732] is denied, and

DAPs are not given leave to serve any new interrogatories at this time.

It is so ordered.

£

ffrey T.'GilBert

United States Magistrate Judge

Dated: January 19, 2022

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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