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 Certain Direct Action Plaintiffs’ Motion to
Compel Mountaire Employee Bruce Mooney as a Document Custodian [ECF No.
4738] (the “Motion”). For the reasons set forth below, the Motion is denied.
BACKGROUND
On May 11, 2021, one month before the then-scheduled close date of fact
discovery, all Plaintiffs issued a notice to Defendants Mountaire Farms Inc.,
Mountaire Farms, LLC, and Mountaire Farms of Delaware, Inc. (together,
“Mountaire”) for the deposition of one of Mountaire’s employees, Bruce Mooney, who
is a Vice President of Retail Sales. During the relevant time period, Mooney was
responsible for retail sales, communicated directly with customers about pricing,
including plaintiffs in the direct purchaser class as well as the direct action plaintiffs
(“DAPs”), and allegedly collected and shared information about competitors’ pricing.
During a Rule 30(b)(6) deposition, Mountaire’s corporate designee testified that
Mooney is the employee best situated to speak about Mountaire’s customers, pricing
for those customers, and Georgia Dock pricing. Mountaire also has designated
Mooney as a Rule 30(b)(6) witness for individual topics requested by DAPs Ahold
Delhaize and ALDI.
The present Motion is brought by several of Mountaire’s customers, including
DAPs Ahold Delhaize USA, Inc., ALDI, Inc., Alex Lee, Inc., The Golub Corporation,
Topco Associates, Inc., Giant Eagle, Inc., Carl Buddig & Co., Services Group of
America, Inc., Conagra Brands, Inc., Pinnacle Foods, Inc., Kraft Heinz Foods
Company, Nestlé USA, Inc., Nestlé Purina PetCare Co., Quirch Foods, LLC,
Independent Purchasing Cooperative, Inc., The Kroger Co., Albertsons Companies,
Inc., Hy-Vee, Inc., and Save Mart Supermarkets.1 These moving DAPs now seek an
order from the Court compelling Mountaire to designate Mooney as a document
custodian and to produce his documents before his deposition goes forward.
Mountaire opposes the Motion on the following grounds: (1) the Motion is untimely;
(2) the parties negotiated years ago which individuals would be document custodians
and Mooney was not chosen; and (3) producing Mooney as a Rule 30(b)(6) witness
does not mandate he also be designated as a document custodian. The Court will
address the parties’ arguments in turn.
1 The moving DAPs who have elected to proceed to trial in this case on Track One include The
Golub Corporation, Giant Eagle, Inc., The Kroger Co., Albertsons Companies, Inc., Hy-Vee,
Inc., and Save Mart Supermarkets. See [ECF Nos. 5331, 5332]. The moving DAPs on Track
Two include Ahold Delhaize USA, Inc., ALDI, Inc., Alex Lee, Inc., Carl Buddig & Co., Topco
Associates, Inc., Services Group of America, Inc., Conagra Brands, Inc., Pinnacle Foods, Inc.,
Kraft Heinz Foods Company, Nestlé USA, Inc., Nestlé Purina PetCare Co., Quirch Foods,
LLC, and Independent Purchasing Cooperative, Inc. See [ECF No. 5334].
DISCUSSION
The Court agrees with Mountaire that the Motion is untimely. Plaintiffs,
including the DAPs who filed this Motion, have known about Mooney and his role at
Mountaire for several years. The process of designating document custodians in this
case, including Mountaire’s custodians, was the result of extensive and good-faith
negotiations between the parties that took place several years ago over a period of
many months. Notably, Mooney was a specific subject of those negotiations.2
Ultimately, however, the parties agreed that other individuals at Mountaire, and not
Mooney, were the appropriate sources of custodial documents in this case. Or at least
they agreed to compromise on the designation of document custodians and Mooney
was not so designated. The moving DAPs cannot re-visit those negotiations now, so
many years later and with so much discovery water under the proverbial bridge,
without a much better reason for doing so than they have presented here.
2 The record reflects that between April and July 2017 the parties negotiated which
individuals would be identified as document custodians for the relevant period, January 1,
2007 through September 2, 2016. Whether Mooney would be included as a document
custodian was a topic that was explicitly considered and negotiated by the parties. See [ECF
No. 4771-3], Ex. C. Those negotiations culminated in an agreement on July 22, 2017, in which
ten Mountaire employees were made document custodians, including three employees from
the sales department Phil Plylar (then-Executive Vice President of Sales and Operations and
current President), Mike Little (Vice President of Sales), and Erik Smith (Director of Sales-
Wholesale), among others. See [ECF No. 4771-4], Ex. D. Mooney was not one of them. This
belies Certain DAPs’ claim that “[v]ery few” of Mountaire’s document custodians worked in
sales. See [ECF No. 4739], at 2. It is not disputed that Mountaire timely completed
substantial production of its documents from these sources by July 2018. In August 2018,
Plaintiffs, including all putative classes and DAPs, requested that Mountaire add an
additional four document custodians. Again, the parties negotiated Plaintiffs’ request, and
Mountaire ultimately agreed to add an additional three custodians, including another two
employees in its sales department, Amanda Irwin (Director of Business Development) and
Larry Saywell (former Vice President of Sales and Marketing). See [ECF No. 4771-5], Ex. E.
Mountaire completed its production of documents from these additional custodians in the fall
of 2018.
The Court recognizes that certain DAPs, including Ahold, among others, may
not have actively participated in the negotiations geared toward identifying and
selecting document custodians in the first instance. In particular, it was not until
August 6, 2018, that Ahold, one of the movants here, 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, and filed its own direct action
complaint against Defendants Tyson Foods, Inc., et al., Case No. 1:18-cv-5351. Two
days later on August 8, 2018, Ahold filed a motion to reassign the case to this docket
[ECF No. 1102] which was granted on August 13, 2018. [ECF No. 1121]. After Ahold
had its own seat at the table, however, it specifically raised the document custodian
issue with Mountaire and requested Mountaire add Mooney as a custodian.
Mountaire declined to do so, citing the earlier negotiations and agreement on this
issue. See [ECF No. 4771-6], Ex. F. After that, neither Ahold nor any other DAP raised
the issue of designating Mooney as a document custodian again for the next two and
a half years.
In the Court’s view, this particular document custodian ship sailed a long time
ago. Some of the moving DAPs were parties to the case during the original
negotiations about document custodians in 2017. Others who opted out of the class
action and filed their own direct action complaints afterwards have been parties for
a long time and could have raised the issue of Mountaire’s custodians and their
request to designate Mooney much sooner than they did. And they could have raised
the issue with the Court if it was important for them to do so. Fact discovery for the
supply reduction and Georgia Dock part of this case that now will be tried on Track
One [ECF Nos. 5128, 5305] is closed. Under these circumstances, the moving DAPs’
instant request to compel Mountaire to designate Mooney as a custodian and produce
his documents before his deposition comes much too late in the Court’s view.
Further, putting aside the untimeliness of this Motion, there is no evidence at
this time that production of additional documents in Mooney’s files will materially
advance the moving DAPs’ ability to prosecute their cases. The record shows that
Mountaire already has produced hundreds of Mooney documents, including many
documents relevant to the alleged Georgia Dock and supply side conspiracies. The
moving DAPs have not shown they need the information they are seeking to take
Mooney’s deposition or that their ability to prosecute the case will be materially
prejudiced without the production of additional documents from Mooney. Therefore,
it is not clear that the discovery being sought in the Motion is proportional to the
needs of this case at this time within the meaning of Federal Rule of Civil Procedure
26(b)(1). See also O’Toole v. Sears Roebuck and Co., 2014 WL 1388660, at *3 (April
10, 2014) ( “The discovery rules are not an excursion ticket to an unlimited, never-
ending exploration of every conceivable matter that captures an attorney's interest.
Parties are entitled to a reasonable opportunity to investigate the facts-and no
more.”) (internal quotation and citation omitted).
The moving DAPs reply that Mountaire has not shown that adding Mooney as
an additional custodian would be unduly burdensome or that his documents would
be duplicative, so therefore, their Motion should be granted. But that puts the cart
before the horse to some extent. The moving DAPs do not offer any compelling
argument that Mooney is likely to have non-duplicative documents that relate to the
active claims of supply restriction and Georgia Dock conspiracies that are not
contained within their own files or not already part of Mountaire’s substantial
production of documents. On this record, the Court will not revisit the parties’ long-
ago negotiations on the custodian issue, and, as discussed above, even if the Court
would have been inclined to do so at one point in time, the moving DAPs waited too
long to bring this issue to the Court.
Lastly, the moving DAPs argue that Mooney should be added as a document
custodian and required to produce documents before his deposition because
Mountaire recently identified him as its corporate designee charged with responding
to certain topics in the Rule 30(b)(6) deposition notices served by DAPs Ahold and
ALDI. The moving DAPs, however, do not cite any authority to support the
proposition that a Rule 30(b)(6) witness must reflexively or automatically be made a
document custodian. Nor is the Court aware of any such requirement or authority.
By definition, a witness designated under Rule 30(b)(6) testifies on behalf of the
corporation and that testimony binds the corporation. It is not a vehicle that
automatically subjects that witness to targeted individual discovery requests
concerning the witness’s individual knowledge of facts nor does it automatically
require production of that witness’s own documents.
CONCLUSION
Accordingly, for all these reasons, Certain Direct Action Plaintiffs’ Motion to
Compel Mountaire Employee Bruce Mooney as a Document Custodian [ECF No.
4738] is denied.
It is so ordered.
-g.
2 4 ‘
yeffrey T: Gilbert
United States Magistrate Judge
Dated: March 3, 2022