The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
IN RE BROILER CHICKEN Case No. 1:16-cv-08637
ANTITRUST LITIGATION
Magistrate Judge Jeffrey T. Gilbert
This Document Relates To: All Actions
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Direct Action Plaintiffs Bojangles’
Restaurants, Inc.’s and Bojangles OPCO, LLC’s Motion to Compel 30(b)(6) Deposition
of Cheney [ECF No. 4932]. For the reasons set forth below, the Motion is denied.
FACTUAL BACKGROUND
Bojangles Restaurants, Inc. and Bojangles OPCO, LLC (together, “Bojangles
DAPs”) and Cheney Bros., Inc. (“Cheney”) are direct action plaintiffs (“DAPs”) that
opted out of one of the class actions that are part of this In re Broiler Chicken Antitrust
Litigation, which has been pending in this District since September 2016. Cheney
along with other DAPs filed a complaint against Defendants Tyson Foods, Inc., et al.,
Case No. 1:18-cv-06693, on October 3, 2018, which case was reassigned to this docket
on October 16, 2018. [ECF No. 1286]. After Cheney’s lawsuit had been pending for
over two years, Bojangles DAPs filed their own opt out complaint against Defendants
Tyson Foods, Inc., et al., Case No. 1:20-cv-07734, which was reassigned to this docket
on December 28, 2020. [ECF Nos. 4120-1, 4126].
After Bojangles DAPs filed their complaint, they say they learned, presumably
in late 2020 or early 2021, that Cheney already had asserted a claim for damages
arising from purchases of Broiler chickens that allegedly included some of the same
purchases of Broiler chickens that underlie Bojangles DAPs’ claim. Specifically,
Bojangles DAPs assert that Cheney included within its damage claim purchases of
proprietary Broiler products that Bojangles DAPs’ distributor, Pate Dawson (which
had been acquired by Cheney in 2016), had made on behalf of the Bojangles DAPs
during the relevant period.
To better understand the basis for Cheney’s damage claim, Bojangles DAPs
served Cheney with a Rule 45 subpoena to produce documents on January 27, 2021,
followed by a second Rule 45 subpoena to produce documents on February 10, 2021.
Cheney served objections and responses to those subpoenas but also produced
responsive documents on February 26, 2021, and March 19, 2021. Bojangles DAPs
did not pursue any further discovery from Cheney for nearly four months. Then, on
July 14, 2021, more than one month after the applicable June 11, 2021, fact discovery
deadline in the In re Broiler Chickens Antitrust Litigations case,1 Bojangles DAPs
sent Cheney a Notice of Rule 30(b)(6) Deposition via e-mail to Cheney’s counsel
seeking the deposition of a Cheney corporate witness. See Notice of Deposition [ECF
No. 4993], at Exhibit C. Cheney objects to the requested deposition on several
grounds. The Court will address each argument in turn.
1 See Scheduling Order No. 15 [ECF No. 4641] (entered on May 13, 2021); and Scheduling
Order No. 16 [ECF No. 4748] (entered on June 17, 2021).
DISCUSSION
I.
Cheney first contends the Bojangles DAPs’ notice of deposition is procedurally
defective because Cheney is not a party to Bojangles DAPs’ lawsuit against the Tyson
Defendants, et al. Cheney says that Bojangles DAPs should have served a Rule 45
subpoena for the Rule 30(b)(6) deposition just like they did when they served Rule 45
subpoenas for the documents they previously requested from Cheney. Since Bojangles
DAPs did not serve Cheney with a subpoena, Cheney argues that the Bojangles DAPs’
motion to compel is procedurally improper and should be denied.
Despite having previously served two third-party subpoenas for documents on
Cheney, Bojangles DAPs argue that they did not need to serve a Rule 45 subpoena
for Cheney’s Rule 30(b)(6) deposition because Cheney is “not a ‘third party’ to this
case.” Bojangles DAPs’ Memorandum of Law [ECF No. 4933], at 4. Nevertheless, on
July 27, 2021, during a meet and confer regarding this issue, counsel for Bojangles
DAPs offered to serve a Rule 45 subpoena if that would resolve Cheney’s objection to
the deposition. Cheney said that even if Bojangles DAPs would have served a Rule 45
subpoena, it still would argue that the subpoena was untimely and Bojangles DAPs
had not shown good cause to take the deposition. Bojangles did not serve a subpoena,
but instead filed this motion to compel a Rule 30(b)(6) deposition of Cheney.
As a threshold matter, the Court agrees with Cheney that Bojangles DAPs
were required to serve a subpoena to take a Rule 30(b)(6) deposition of a Cheney
corporate representative absent Cheney’s agreement to appear voluntarily for such a
deposition. It is well-settled law that a party cannot compel the presence of a non-
party at a deposition without serving a subpoena. See Bueker v. Atchison, Topeka and
Santa Fe Ry. Co., 175 F.R.D. 291, 292 (N.D. Ill. 1997); Metzger ex rel. Anderson v.
Francis W. Parker School, 2001 WL 910443, at *3 (N.D. Ill. Aug. 10, 2001) (holding
that “when a party wants a non-party to testify at a deposition or to produce
documents, Rule 45 requires a subpoena and permits the non-party the opportunity
to object”); see also 9A Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 2452 (3d ed. 2021) (stating that “a subpoena is necessary to compel
someone who is not a party to appear for the taking of a deposition”).
Cheney and the Bojangles’ parties each filed separate lawsuits, and their
individual cases have been reassigned to this In re Broiler Chicken Antitrust
Litigation docket because they are related to other such cases that have been filed.
Bojangles DAPs and Cheney have no pending claims against each other, and they
asserted their own claims against various Defendants in separate complaints after
they opted out of the direct purchaser class action.2 Cheney’s position is simple—a
subpoena is required because Cheney is not a party to the Bojangles DAPs’ individual
case even though both Cheney and Bojangles DAPs are plaintiffs in the In re Broiler
Chicken Antitrust Litigation. The Court agrees. Bojangles DAPs’ prior service on
Cheney of two Rule 45 subpoenas for documents confirms their acknowledgement
2 Although the all the DAPs in this case, at the Court’s instance [ECF Nos. 3653, 3700], have
filed an omnibus complaint that accumulates in one place the factual allegations and legal
claims being made by more than 150 DAPs in their individual complaints, they have
maintained the independent legal existence of their individual cases. See Direct Action
Plaintiffs’ Amended Consolidated Complaint and Demand for Jury Trial [ECF No. 4244], at
2 (stating “DAPs understand the Court’s orders to preserve the independent legal existence
of each DAP case”).
that Cheney is a third-party to Bojangles DAPs’ individual case. The Court is not
persuaded by Bojangles DAPs’ argument to the contrary. Bojangles DAPs’ motion to
compel, therefore, could be denied on this ground alone, but the Court will address
the remaining arguments made by the parties.
II.
Cheney next argues that Bojangles DAPs’ notice of deposition and their motion
to compel are untimely under Scheduling Order No. 16. See Scheduling Order No. 15
[ECF No. 4641] (entered on May 13, 2021) and Scheduling Order No. 16 [ECF No.
4748] (entered on June 17, 2021). The Court agrees with Cheney that Bojangles
DAPs’ notice of deposition and their subsequent motion to compel are untimely.
Bojangles DAPs did not serve Cheney with a notice of a Rule 30(b)(6) deposition until
July 14, 2021, more than one month after the June 11, 2021 fact discovery deadline
in this case. The Court had extended fact discovery to July 30, 2021, solely to allow
parties to complete discovery that already had been served or was then at-issue as
the fact discovery close date was fast approaching. That “extension” was not an
invitation to serve new discovery that could have been served timely during the
period allowed for fact discovery.3
3 The parties have taken almost 400 depositions in this case. See Tyson Defendants’
Opposition to Aldi’s Motion to Compel Individualized Discovery [ECF No. 4865], at 2. As the
Court made clear during a 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 new discovery. See 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.”). Although the Court
noted that depositions could be taken during that time, the Court did not necessarily mean
that depositions that had not yet been noticed would be allowed.
Generally, a deadline is a deadline. It is not a suggestion to be taken lightly or
complied with only as a matter of choice.4 Bojangles DAPs do not offer any reasonable
explanation for their lack of diligence in pursuing the Cheney deposition during the
period when deposition discovery was to take place within the confines of the Court’s
Scheduling Orders. Bojangles DAPs served timely Rule 45 subpoenas on Cheney
earlier in the discovery period. Bojangles DAPs should have raised the issue of a
Cheney Rule 30(b)(6) deposition months before they did so, and their desire to take
that deposition now, and to compel it in the eleventh hour, comes too late.
III.
Finally, putting aside the procedural defects of an untimely notice of
deposition, the Court also finds Bojangles DAPs have not shown that the discovery
they are seeking is relevant or proportional to the needs of their case within the
meaning of Federal Rule of Civil Procedure 26((b)(1). Bojangles DAPs do not need the
information they are seeking to support their affirmative claim for relief alleged in
their complaint. If they need the information at all, it would be to respond to a
Defendant’s potential argument that Bojangles DAPs do not own the claim they are
4 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)).
asserting. As far as the Court can tell, however, no Defendant has made that
argument as of now. A potential dispute between Bojangles DAPs and Cheney as to
who is the rightful owner of certain claims for damages they have asserted in their
individual cases is not part of this case at this time.®
Therefore, in the Court’s view, the discovery Bojangles DAPs are seeking is not
relevant to a claim or defense in their case or, importantly, proportional to the needs
of that case at this time within the meaning of Federal Rule of Civil Procedure
26(b)(1). If the information Bojangles DAPs are seeking becomes relevant to a claim
or defense in the future, and discovery of that information is proportional to the needs
of the case at that time, the Court can address the issue in that context.
CONCLUSION
Accordingly, for all these reasons, Bojangles’ Restaurants, Inc. and Bojangles
OPCO, LLC’s Motion to Compel 30(b)(6) Deposition of Cheney [ECF No. 4932] is
denied.
It is so ordered.
C — Fe
Dated: February 16, 2022 Wy t
effrey T. Gilbert
United States Magistrate Judge
5 The word “Cheney,” for example, does not appear in Bojangles’ original complaint [ECF No.
4120-1] or in its amended complaint [ECF No. 4347]. A footnote in paragraph 61 of the Direct
Action Plaintiffs’ Amended Consolidated Complaint and Demand for Jury Trial does
reference the existence of a dispute between Bojangles and Cheney as to the proper party to
assert claims arising from Bojangles’ purchases of Broiler chickens through its distributor,
Pate Dawson, which Cheney acquired in 2016. The footnote then says, “Bojangles reserves
all of its rights on this issue.” [ECF Nos. 4243, 4244], at 67-68, § 61, n.5. In their Consolidated
Answer, Defendants do not respond to the Bojangles DAPs’ statement in footnote 5 of the
Consolidated Complaint about its dispute with Cheney, presumably because no response was
required. Defendants’ Consolidated Answer and Affirmative Defenses to Direct Action
Plaintiffs’ Amended And Consolidated Complaint [ECF No. 4417], at 77-78, 4 61.