IN RE TURKEY ANTITRUST LITIGATION

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

IN RE TURKEY ANTITRUST LITIGATION

JOHN GROSS AND COMPANY, INC., Case No. 19 C 8318

et al.,

District Judge: Virginia M. Kendall

Plaintiffs, Magistrate Judge: Gabriel A. Fuentes

v.

AGRI STATS, INC., et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

Before the Court are two motions to quash third-party subpoenas for investigative materials

generated at the direction of Plaintiffs’ counsel, and a cross-motion by Defendants to compel

compliance with those subpoenas. These three motions are now docketed before this Court. (D.E.

275.)1 Together, the motions raise the question of whether the work-product doctrine, or other

limits on civil discovery, applies to protect investigative work that one of Plaintiffs’ counsel, the

Hagens Berman firm, conducted through the third-party retained investigators shortly before the

1 This matter is before the magistrate judge on referral for discovery supervision. (D.E. 267, 268.) The two

Rule 45 subpoenas in question contain identical document requests and are directed at Maine-based On

Point Investigations, LLC (“On Point”) and Seattle-based Lael Henterly (“Henterly”), who is On Point’s

lead investigator. See Defendants’ Opposition to the Motions to Quash Investigator Subpoenas and Cross-

Motion to Compel Pre-Client Investigative Materials (“Opp.”; D.E. 275), Exh. 1 (D.E. 275-1). Plaintiffs’

counsel at Hagens Berman Sobol Shapiro LLP (“Hagens Berman”) and Lockridge Grindal Nauen PLLP

(“Lockridge Grindal”) are representing On Point and Henterly, and are co-movants with On Point and

Henterly on the motions to quash the subpoenas, which were served on May 21, 2021. Hagens Berman,

Lockridge Grindal, On Point and Henterly (the “Movants”) filed the motion to quash in the District of

Maine and the Western District of Washington in June 2021, and by agreement, the matters were ordered

transferred to the Northern District of Illinois for decision. (No. 21 C 3551, D.E. 1, Exh. 1, and D.E. 9; No.

21 C 3763, D.E. 1, 4, 8). Defendants cross-moved to compel compliance with the subpoenas. Opp. at 2.

The motions, which include all motions to quash the subpoenas on On Point and Henterly, and Defendants’

cross-motion to compel, also are before the magistrate judge by operation of the consolidation of the

miscellaneous actions (Nos. 21 C 3551 and 21 C 3763) with No. 19 C 8318.

filing of this action and apparently before a named plaintiff engaged Hagens Berman to file the

lawsuit. Resolving the motions requires the Court to look at the Federal Rules of Civil Procedure

as a whole, Rule 26(b)(3) governing work-product protection in particular, the origin and evolution

of work-product protection in the federal courts, and the nature of the materials sought by the

subpoenas. To understand better the information the Movants are seeking to protect as attorney

work product, the Court obtained from the Movants a sample of the materials responsive to the

subpoenas for in camera review. (D.E. 441.)

BACKGROUND

This consolidated action is a civil antitrust lawsuit by two sets of plaintiffs seeking to

represent classes of purchasers of turkeys and turkey products in the United States. Plaintiffs John

Gross and Co., Inc. (“John Gross”), and Maplevale Farms, Inc. (“Maplevale”) (collectively

“Plaintiffs”) alleged in the Second Amended Complaint that they purchased turkey directly from

one or more of the multiple defendant turkey producers (or “integrators,” as they are called).

Second Amended Complaint (D.E. 387) ⁋⁋ 54-55.2 Plaintiffs seek to represent a class of Direct

Purchaser Plaintiffs (“DPPs”) who allege that the turkey integrator defendants, who are breeders,

processors, and sellers of turkeys and turkey products, artificially inflated turkey prices through

anti-competitive exchanges of information in reports created by another Defendant, Agri Stats,

Inc. (“Agri Stats”). The turkey integrator Defendants are Butterball LLC (“Butterball”), Cargill

Meat Solutions Corporation and Cargill, Inc. (“Cargill”), Cooper Farms, Inc. (“Cooper Farms”),

Farbest Foods, Inc., Foster Farms, LLC, Foster Poultry Farms, Hormel Foods Corporation, House

of Raeford Farms, Inc., Perdue Farms, Inc., Perdue Foods LLC, The Hillshire Brands Company,

2 This matter (No. 19 C 8318) also is consolidated with separate DPP actions against the same defendants

by plaintiffs Winn Dixie Stores, Inc. and Bi-Lo Holding, LLC (No. 21 C 4131), and by Amory Investments,

LLC (No. 21 C 6600).

Tyson Foods, Inc., Tyson Fresh Meats, Inc., Tyson Prepared Foods, Inc., Jennie-O Turkey Store,

Inc., Prestage Farms, Inc., Prestage Foods, Inc., Prestage Farms of South Carolina, LLC

(collectively, with Agri Stats, “Defendants”).3 Plaintiff Sandee’s Bakery is one of nine entities

(the Indirect Purchaser Plaintiffs, or “IPPs”) alleging that their antitrust injuries stemmed from

their indirect purchases of turkey or turkey products from the same turkey integrator Defendants,

whom the IPPs have named along with Agri Stats as having artificially inflated turkey product

pricing through the same alleged information exchanges. Third Amended Complaint (D.E. 417).

The motions to quash the On Point and Henterly subpoenas, and Defendants’ cross-motion

to compel compliance with them, arise from the DPP action brought by Plaintiffs including John

Gross, insofar as Defendants are seeking production of investigative files created after Hagens

Berman retained On Point (which engaged Henterly) in November 2019, shortly before the filing

of the DPP action in which John Gross was one of the initial class representatives. Defendants

assert that if the On Point/Henterly investigation occurred before John Gross formally became a

client of Hagens Berman, no work-product protection exists under Rule 26(b)(3) for the related

investigative documents, because in the words of Defendants, Hagens Berman was then

“clientless,” the materials concern a mere “pre-client” investigation, and the context in which On

Point and Henterly did the investigative work was simply Hagens Berman’s “business

development” activity. Opp. at 1.

Defendants maintain that under these circumstances, the investigative materials could not

have been prepared “by or for” a “party” or its representative, as Defendants maintain is required

to trigger work-product protection under Rule 26(b)(3), which they read as requiring that the

3 The district court granted the DPPs’ motion for final approval of settlement with Tyson on February 3,

2022. (D.E. 406.) The three Prestage defendants were added to the DPP and IPP cases in the DPPs’ Second

Amended Complaint and the IPPs’ Third Amended Complaint, filed on January 11, 2022. (D.E. 380, 378.)

“party” for whom the materials are being prepared must be a party to the litigation. Id. at 5-14. If

there was no attorney-client relationship between Hagens Berman and any of the named Plaintiffs

at the time of the On Point/Henterly investigative work, Defendants assert, the work cannot have

been performed by or for a party to the litigation and thus falls outside a literal reading of Rule

26(b)(3)’s protections for work product. Id. That is, Defendants are arguing that the Court should

read Rule 26(b)(3) literally to determine that the work-product doctrine does not shield the On

Point/Henterly investigative materials from discovery and are implying, at least, that Rule 26(b)(3)

is the discovery rules’ sole source of protection against Defendants’ requested investigative

discovery. Movants counter that calling the On Point/Henterly materials the mere product of

Hagens Berman’s “business development activity” is a reductionist canard, that the subpoenas on

On Point and Henterly are attempts “to undermine the adversarial system by intruding into the

protected sphere of opposing counsel’s work,” and that in any event, Hagens Berman caused the

On Point/Henterly investigative file to be created “for” the eventual Plaintiffs. Reply in Support

of Mot. to Quash (“Pl. Reply”; D.E. 282) at 4-7, 9.

By virtue of the consolidation of the multiple DPP and IPP matters (D.E. 310, 405), the

Court considers all defendants in all of the consolidated matters to have joined in the opposition

to the motions to quash and in the maintenance of the cross-motion to compel. See Stipulation

Regarding Reassignment, Coordination and Consolidation of Direct Action Plaintiff Complaint

(D.E. 393) ⁋ 7.

FACTS

The Hagens Berman and Lockridge Grindal firms represent class Plaintiffs in two other

antitrust actions involving food products: In re Broiler Chicken (“Broilers”) Antitrust Litig., No.

16 C 8637 (N.D. Ill.), and In re Pork Antitrust Litig., No. 18-cv-1776 (D. Minn.). As early as

December 14, 2016, in Broilers, Hagens Berman was appointed as co-lead counsel for a class of

indirect end-user consumer purchasers of broiler chickens. Broilers, No. 16 C 8637 (D.E. 248).

John Gross, which is among the direct purchaser class representatives that Hagens Berman

represents in this case, was represented by different counsel in Broilers. Id. Movants further have

stated that John Gross and the two other entities that eventually became named direct purchaser

plaintiffs in the instant case have been clients of Lockridge Grindal since at least 2016 (as to John

Gross and Maplevale) and since 2018 (for Olean Wholesale Grocery Cooperative, Inc. (“Olean”),

which since was dismissed from this matter). Pl. Reply, Exh. 1 (“Scarlett Decl.”; D.E. 282-1) ⁋ 4.

In mid-2018, Hagens Berman “began an active case investigation” on behalf of unnamed

participants in the turkey market. Id. ⁋ 3. Hagens Berman announced this investigation publicly

on its website in July 2018, and on July 9, it set up a portal on its website and began receiving

communications from unnamed potential plaintiffs about their possible participation in the turkey

lawsuit. Id. From that time until the late 2019 filing of the initial turkey antitrust direct purchaser

complaint in this matter, “dozens” of potential class representatives contacted Hagens Berman,

which “discussed the investigation, purchases, and other relevant facts with potential class

representatives regarding the turkey industry,” and the firm’s investigation “continued until the

filing of the complaint in 2019.” Id. On November 13, 2019, Hagens Berman retained On Point

“to conduct a factual investigation into the turkey industry for use in potential litigation.” Id. ⁋ 6.

The investigation conducted by On Point for Hagens Berman “was primarily performed” by

Henterly, a licensed private investigator. No. 21 C 3551, Declaration of Rio S. Pierce (D.E. 1-1)

⁋ 7.

The Court has reviewed the On Point retention agreement in camera. The agreement refers

to the confidential and privileged nature of any communication that On Point might need to have

with “the Client” (not identified in the agreement, but plainly referencing the intended client of

Hagens Berman, which was identified as “you”) during On Point’s investigative services “to

assist” Hagens Berman in “litigation concerning Turkey Antitrust.” The agreement also refers to

how any confidential and privileged communications between On Point and “the Client” or

between On Point and Hagens Berman were being made “solely for the purpose of assisting you

[Hagens Berman] in rendering legal advice to your Client, in connection with the litigation.”

(Emphasis added.)

As for the investigation itself, Movants have disclosed that it included interviews of

“confidential witnesses” and communications with “counsel” (presumably at least Hagens

Berman) regarding the investigation. Motion to Quash Filed in the Western District of Washington

“Henterly Motion to Quash”; No. 21 C 3551 (D.E. 1)) at 2. As for the remainder of the Court’s in

camera review of the On Point/Henterly investigative materials sought by Defendants, the Court

will be circumspect in describing the in camera materials as containing investigator work product

developed largely between the November 2019 retention of On Point and the December 2019 filing

of the initial complaint. This investigator work product related entirely to the Hagens Berman

probe into whether antitrust violations could be asserted against participants in the turkey industry,

was prepared entirely in preparation for litigation against such turkey industry participants, and is

replete with (1) the ideas of attorneys and investigators about how to probe for antitrust violations,

and (2) the information that actually was gathered between November 13, 2019 and Plaintiffs’

initial filing date (in this action) of December 19, 2019.4 With Movants already having disclosed

4 The Court focused its in camera review on the materials created before the December 19, 2019 filing date.

A small portion of the material was created afterward, at a time when Defendants’ argument that the

materials were not created “by or for” a party to the litigation does not apply. Those post-filing materials

are, in the Court’s view, unquestionably protected attorney work product, beyond the scope of Defendants’

motion to compel (and opposition to the motions to quash the On Point and Henterly subpoenas), and not

that the On Point/Henterly investigation included interviews of confidential witnesses and

communications with counsel about the investigation, the Court is not disclosing anything

confidential about the investigative materials by adding that they included witness interview

outlines, notes of interviews, and interview memoranda – the very type of material that, in the

Court’s judgment, an attorney directing a privileged, work-product investigation in preparation for

litigation clearly would consider core mental-impression work product.

At some point in December 2019 (Movants have not said exactly when), John Gross and

Olean signed formal retention agreements in the instant turkey antitrust litigation, but Movants

state that these three named Plaintiffs “have had an ongoing attorney-client relationship with

Lockridge Grindal since well before that time.” Scarlett Decl. ¶ 4. With Movants not telling us

exactly when John Gross and Olean formally retained Hagens Berman, the Court will assume, for

purposes of this opinion, that On Point/Henterly generated at least some of its investigative

materials before John Gross and Olean formally retained Hagens Berman. Lockridge Grindal and

Hagens Berman were among the law firms that filed the initial complaint in this matter on behalf

of named Plaintiffs John Gross and Olean on December 19, 2019. (D.E. 1.)

Accordingly, the public record before the Court does not indicate how much of the

investigation by On Point and Henterly occurred before John Gross, Maplevale or Olean signed

any formal retention agreement with Hagens Berman, but the record does include Movants’

averments that by the time the complaint in this matter was filed on December 19, the complaint

contained a substantial amount of information gathered by the On Point/Henterly investigation.

Movants state that “[t]he subsequently filed complaint contained factual allegations based on the

work performed by On Point and Henterly.” Henterly Motion to Quash at 2. In addition, the

at issue in these motions. The Court is construing Defendants’ cross-motion as not seeking compelled

production of such post-filing material.

Court’s in camera review of the On Point/Henterly investigative material confirmed that the bulk

of the investigative work did occur between the November 13 On Point retention and the December

19 filing of the complaint. As for when precisely John Gross formally “retained” Hagens Berman,

Movants have conceded implicitly that at least some of the investigation happened before such

formal retention by John Gross and Olean because Movants argue that the precise retention date

does not matter, as the On Point/Henterly investigation was prepared “for” the eventual named

Plaintiffs and was necessary to “permit[] counsel to file a complaint for these Plaintiffs that

satisfies Rule 11.” Pl. Reply at 7.

The motions to quash do not state exactly which complaint allegations were based on the

On Point/Henterly work, but the Court easily can infer that the allegations were those in which the

DPPs’ original Complaint (and its subsequent iterations) related the information that Movants

obtained from On Point/Henterly concerning three “confidential witnesses” identified as CW1,

CW2, and CW3. CW1 is stated to be a former sales executive at Defendant Butterball, and the

complaints allege that according to CW1, Butterball relied on pricing data generated by Agri Stats

to “evaluate … where we stood against other turkey companies.” DPP Complaint ⁋ 13; DPP

Second Amended Complaint ⁋⁋ 133-34; IPP Third Amended Complaint ⁋ 13. CW2 is stated to be

a former accountant at Defendant Cooper Farms, and the complaints allege that according to CW2,

Cooper Farms received monthly reports from Agri Stats, which grouped data by turkey product,

and which advised Cooper Farms to help it “improve its returns per pound”; CW2 could determine

the identity of other turkey producers from within the Agri Stats data. DPP Complaint ⁋⁋ 14-15,

18; DPP Second Amended Complaint ⁋⁋ 146-47; IPP Third Amended Complaint ⁋⁋ 14-15, 18.

CW3 is stated to be a former employee of Defendant Cargill, and the complaints allege that

according to CW3, Cargill finance executives directly received Agri Stats monthly data reports.

DPP Complaint ⁋ 19; DPP Second Amended Complaint ⁋ 206; IPP Third Amended Complaint ⁋

19.

Although the three confidential witnesses are not named in the complaints, Movants have

confirmed that they “identified” them for Defendants in Plaintiffs’ Rule 26(a)(1) disclosures and

confirmed that the “confidential witnesses” in the complaint were included in those disclosures.

Henterly Motion to Quash, Pierce Declaration (No. 21 C 3551 D.E. 1-1) ⁋ 8. A review of those

discovery disclosures by the Court showed that although Plaintiffs disclosed multiple possible

witnesses from each of the three companies for which the CWs formerly worked, only three of

those named persons (one for each of the three companies) had titles that matched those that

Plaintiffs used in the complaint to describe CW1, CW2 and CW3. Perhaps not surprisingly, the

On Point and Henterly subpoenas included document requests that appear to be directed at all three

confidential witnesses. The On Point and Henterly subpoenas seek the same information:

1. All retention agreements, contracts, or agreements between You and Counsel of

Record concerning turkey, including documents sufficient to show the date of retention.

2. All documents relating to turkey.

3. All documents relating to [the person who apparently is CW1].

4. All documents relating to [the person who apparently is CW2].

5. All documents relating to the individual referred to as “Confidential Witness 3” or

“CW 3” in the Complaints in this Action.

6. Documents sufficient to show the identity of all current or former employees of

Defendants you communicated with concerning turkey, and the dates of communication.

7. All documents relating to Butterball, LLC, Cooper Farms, Inc., or Farbest Foods,

Inc., concerning turkey.

8. All documents relating to Cargill, Inc., Cargill Meat Solutions Corporation, Foster

Farms, LLC, Foster Poultry Farms, The Hillshire Brands Company, Hormel Foods

Corporation, Hormel Foods, LLC, House of Raeford Farms, Inc., Perdue Foods, LLC,

Tyson Foods, Inc., Tyson Fresh Meats, Inc., and Tyson Prepared Foods, Inc. concerning

turkey.

9. All communications with Plaintiffs’ Counsel of Record relating to turkey.

10. All notes, memoranda, records, files, transcripts, audio recordings relating to, or

reflecting, any discussion about turkey between you and one or more of the following: (i)

Counsel of Record; (ii) Scott Singleton; (iii) Steve Hammon; (iv) the individual referred to

as “Confidential Witness 3” or “CW 3” in the Complaints in this Action; (v) any current

or former employee of any Defendant; and (vi) Plaintiffs’ Counsel of Record.

Id., Exh. A (No. 21 C 3551, D.E. 1-2); Motion to Quash Filed in Maine (“On Point Motion to

Quash”; No. 21 C 3763 (D.E. 1)), Exh. A (D.E. 1-1).

The Court infers from the record that On Point and/or Henterly found and interviewed all

three of the CWs, and nothing in the record suggests that any of the CWs is not equally available

to Defendants for interview or deposition. Defendants, in moving to compel and in opposing the

motions to quash, have not argued that any of these witnesses, or any potential witness identified

in Plaintiffs’ Rule 26(a)(1) disclosures, is not equally available to Defendants for the same purpose.

ANALYSIS

Using the Court’s subpoena power to obtain information about an adversary’s “business

development” activities, as Defendants say they seek to do, might strike some courts as odd. After

all, per the 2015 amendments to the Federal Rules of Civil Procedure, civil discovery must be

relevant to a claim or defense in the case, and it must be proportional to the needs of the case. Fed.

R. Civ. P. 26(b)(1). Defendants’ description of the On Point/Henterly investigative materials as

reflecting Hagens Berman’s “business development” activities plainly is a thinly disguised attempt

to suggest that the materials fall outside the realm of protected attorney mental impressions

because they are mere “business development.” Defendants nonetheless suggest that minimally,

the materials are relevant and proportional discovery. Defendants rely heavily on a decision from

this judicial district, Castro v. Sanofi Pasteur Inc., No. 13 C 2086, 2013 WL 1707094 (N.D. Ill.

Apr. 19, 2013), in which the plain relevancy of pre-filing interviews conducted by a law firm was

whether the firm conspired with the defendant’s competitor to cook up an antitrust case against

the defendant, in which case the law firm investigator’s interviews of the competitor’s personnel

might well be highly relevant. With the benefit of in camera review of the On Point/Henterly

materials, we will discuss below whether such a theory of relevancy applies to the materials in this

case. Defendants also rely on Castro for the proposition that Rule 26(b)(3)’s “codification” of the

work-product doctrine means the rule must be construed narrowly so that only materials prepared

“by or for” a party – and not just any party, but a party to the litigation – qualify for work-product

protection. Defendants’ Reply in Support of Their Cross-Motion to Compel Pre-Client

Investigative Materials (“Def. Reply”; D.E. 284) at 8. The Castro court reasoned that in cabining

the work-product doctrine to materials prepared “by or for” a party, Rule 26(b)(3) “means what it

says.” Id. This Court has no doubt that the Rule does mean what it says, although the Rule does

not say that the “party” status triggering applicability of the doctrine must stem from a party “to

the litigation.” The words “to the litigation” do not appear after “party,” or anywhere else, in the

Rule. The three motions now pending before the Court call upon us to consider whether the work-

product doctrine, as originally developed in the common law in Hickman v. Taylor, 329 U.S. 495,

507 (1947), can extend to investigative materials that class counsel prepared with class litigation

in mind, although on behalf of named Plaintiffs who may not have formally retained class counsel

until the investigation was under way, substantially completed, or even completed. If Defendants

are correct that formal retention by an actual client is the trigger for work-product protection, even

in class litigation such as this, then at least Rule 26(b)(3) would not shield the On Point/Henterly

materials from civil discovery in this case – although other rules might – and Movants’ theory

remains that the On Point/Henterly materials were prepared “for” the Plaintiffs even if they had

not yet signed up as Hagens Berman clients. In deciding the pending motions, the magistrate judge

operates within the broad discretion afforded him to manage discovery in civil matters. Jones v.

City of Elkhart, Ind., 737 F.3d 1107, 1115 (7th Cir. 2013).

I. The On Point/Henterly Materials Are Relevant to the Claims and Defenses in the

Action, But Not in a Way That Diminishes Movants’ Claims of Work-Product

Protection.

Understanding the relevancy of the On Point/Henterly materials is key to understanding

whether the materials might warrant work-product protection. The materials are relevant to claims

or defenses in the action, but not in the same sense as in Castro. In Castro, an antitrust defendant

sought to show that the plaintiffs’ claim, namely that the defendant had foreclosed a competitor

from a particular market, was manufactured by the competitor, in concert with the plaintiffs’ law

firm and its hired investigator, which conducted interviews of the competitor. 2013 WL 1707094,

at *1. At the time of the interviews, no attorney-client relationship between the law firm and the

eventual named plaintiff or plaintiffs had been formed. Id. The Castro court denied a motion to

quash the subpoena, ruling that work-product protection could not extend to the investigator

interviews because under Rule 26(b)(3), the doctrine can apply only where the investigation was

done “by or for” a party to the litigation, and the court reasoned that such could not be the case

where no plaintiff yet had retained the law firm, and where the attempt to discover the investigative

materials was not an attempt to “piggy-back” off of opposing counsel’s work, but rather an attempt

to explore a substantive defense to the antitrust claims. Id. at *3. The Castro court went so far as

to note that through its in camera review, the court confirmed that while the withheld documents

contained “mental impressions and opinions of counsel and consultant,” they were not pure

opinion materials “but rather reflect … the nature of the relationship and endeavor” undertaken by

the plaintiff’s law firm, its investigator, and the defendant’s competitor. Id. As such, the Castro

court agreed with the defendant (which was seeking disclosure of the investigative materials in

that case) that “the documents have significance independent of their legal analysis because they

may shed light on the nature and course of the relationship between the purported conspirators.”

Id. The Castro court’s frank assessment of those materials was the predicate for its conclusion

that the materials were not attorney work product, again, because the court accepted, after in

camera review, the defendant’s argument that it sought the investigative materials not to “piggy-

back” off the work of opposing counsel and not to intrude upon the “core interest served by Rule

26(b)(3).” Id.

This Court, after reviewing the On Point/Henterly materials in camera, reaches a very

different factual conclusion, namely, that obtaining them would result in Defendants and their

counsel “piggy-backing” off the interview work that Plaintiffs’ counsel, through On Point and

Henterly, performed to interview and learn facts from certain former employees of various

Defendants. The Court finds, as a result of its in camera review, that unlike in Castro, the On

Point/Henterly materials do not have a legal significance independent of defense counsel knowing

what questions Plaintiffs’ counsel wanted asked of former employees, and what answers those

employees gave. Consequently, the On Point/Henterly materials are like any investigative material

that defense counsel would surely love to obtain and review, to obtain a window into how

Plaintiffs’ counsel put together the case, to know the facts Plaintiffs were looking for, and to know

the information that Plaintiffs’ counsel thought was and was not valuable. The type of information

that Defendants could gain, if the On Point and Henterly subpoenas were enforced, would give

defense counsel a direct, behind-the-scenes view of Plaintiffs’ counsel’s mental impressions

formed in anticipation not just of any litigation, but of litigation against the Defendants in this

action.

We therefore have established that the On Point/Henterly materials are indeed “relevant”

for purposes of Rule 26(b)(1), but not because they reflect Plaintiffs’ counsel’s “business

development” activities (if they even do). The Court doubts that defense counsel ever cared much

about Hagens Berman’s “business development,” any more than Hagens Berman cared about how

many turkey industry executives defense counsel took to lunch and whether they ordered the

Baked Alaska. The relevance of the investigative materials to claims and defenses in the case

stems from the revelations in the materials about exactly what Defendants’ opposing counsel were

thinking as they gathered facts to cite in support of their claims, and as they pleaded some of those

facts into the complaint Hagens Berman filed, on behalf of John Gross and Olean, against

Defendants (except for the Prestage defendants, who were added later) on December 19, 2019.

Having discussed the relevancy prong of Rule 26(b)(1) in the work-product context, we

will examine, later in this opinion, Rule 26(b)(1) “proportionality” of this discovery. But for now,

we must consider whether, if the factual guts of the On Point/Henterly materials sound in attorney

work product, the attorney work-product doctrine itself actually shields them from discovery,

particularly after the 1970 amendments to the Federal Rules of Civil Procedure produced the

current iteration of Rule 26(b)(3). Hagens Berman and Lockridge Grindal, as the attorneys seeking

to protect the mental impressions of themselves and their agent investigators, may assert the work-

product doctrine to block Defendants’ attempt to subpoena On Point and Henterly for work-

product materials. See Hobley v. Burge, 433 F.3d 946, 949 (7th Cir. 2006) (“the work-product

privilege may be invoked by either the client or the attorney”).

II. Rule 26(b)(3) Should Be Interpreted and Applied With the Realities of Litigation and

the Doctrine As Set Forth in Hickman v. Taylor in Mind.

Despite the outcome in Castro, and despite the authority behind the position that Rule

26(b)(3) shields only material prepared by or for “a party to the litigation,” the Court believes

enough is left of Hickman to protect against one party discovering opposing counsel’s mental

impressions formed in anticipation of the very litigation in which the discovery is sought.

A. The History of the 1970 Amendments to Rule 26(b)(3) Does Not Support the

Notion that the Drafters Acted To Bar Hickman’s Work-Product Protection

from Being Available in Every Circumstance in Which Counsel Has Yet To

Be Retained Formally.

In examining the history of the work-product doctrine, we must begin with Hickman, in

which the Supreme Court held that work-product materials are shielded from discovery when

efforts to obtain them are:

simply an attempt, without purported necessity or justification, to secure written

statements, private memoranda and personal recollections prepared or formed by

an adverse party’s counsel in the course of his legal duties. As such, it falls outside

the arena of discovery and contravenes the public policy underlying the orderly

prosecution and defense of legal claims. Not even the most liberal of discovery

theories can justify unwarranted inquiries into the files and the mental impressions

of an attorney.

329 U.S. at 510. The words “prepared or formed by an adverse party’s counsel” are not quite

parallel with Rule 26(b)(3)’s language of “prepared … by or for another party or its representative”

in anticipation of litigation. The Advisory Committee notes to the 1970 amendments say nothing

about any perceived need to limit the doctrine to work performed by or for actual parties to the

litigation, in the sense that if an attorney was not formally retained by a client, no work-product

protection could apply to materials containing the attorney’s mental impressions formed in

anticipation of litigation in the days or weeks immediately preceding formal retention. Instead,

the notes refer to the amended rule arising from a “reappraisal” of the need for a formal rule on

work-product protection amid considerations including “confusion and disagreement as to the

scope of the Hickman work-product doctrine, particularly whether it extends beyond work actually

performed by lawyers ….” Advisory Committee Notes to 1970 Amendments, Fed. R. Civ. P.

26(b)(3). Nothing in those notes suggests that the drafters of the amendments thought that

Hickman’s language of “prepared or formed by an adverse party’s counsel” was overly broad, or

that “by or for another or party or its representative” was a necessary correction.

B. The “Literal Language” of Rule 26(b)(3) Must Be Read Not in Isolation, But

Against the Backdrop of Hickman and the Doctrine That Birthed the Rule.

In Grolier, the Supreme Court considered the history of Hickman, its progeny, and Rule

26(b)(3) in a case in which the Court broadly construed an exemption under the Freedom of

Information Act to allow a government agency to withhold documents the agency claimed were

attorney work product, even though those documents were prepared in connection with separate

agency litigation that had been terminated. 462 U.S. at 22, 28. In reaching this result, the Supreme

Court expressly stated that it was not relying “exclusively” on Rule 26(b)(3) and was instead

construing the FOIA exemption under a different test, namely, “whether the documents would be

routinely or normally disclosed upon a showing of relevance.” Id. at 26 (internal quotations

omitted). As for Rule 26(b)(3), the Supreme Court traced the history of the work-product doctrine

back to Hickman and noted that before 1970, “few District Courts [and only one federal court of

appeal] had addressed the question whether the work-product immunity extended beyond the

litigation for which the documents at issue were prepared,” and such courts “reached varying

results.” Id. at 24. Importantly, the Supreme Court noted that by 1970, “no consensus one way

or the other had developed with respect to the temporal scope of the work-product privilege,” and

that the amended Rule 26(b)(3) itself “does not in so many words address the temporal scope of

the work-product immunity and a review of the Advisory Committee’s comments reveals no

express concern for that issue.” Id. at 25 (emphasis added). But the Supreme Court went on to

discuss how Rule 26(b)(3) might intersect with the FOIA work-product exemption at issue in

Grolier in the following dicta, which is sometimes cited as support for Defendants’ position that

Rule 26(b)(3) must be applied formalistically and literally to bar work-product protection in the

absence of a formalized attorney-client relationship:

But the literal language of the Rule protects materials prepared for any litigation or

trial as long as they were prepared by or for a party to the subsequent litigation. See

8 J. Wright & A. Miller, Federal Practice and Procedure § 2024, at 201

(1970) (hereinafter Wright & Miller). Whatever problems such a construction

of Rule 26(b)(3) may engender in the civil discovery area, see id., at 201–202, it

provides a satisfactory resolution to the question whether work-product documents

are exempt under the FOIA. By its own terms, Exemption 5 requires reference to

whether discovery would normally be required during litigation with the

agency. Under a literal reading of Rule 26(b)(3), the work-product of agency

attorneys would not be subject to discovery in subsequent litigation unless there

was a showing of need and thus would fall within the scope of Exemption 5.

Id. at 25-26 (emphasis in original).

The Grolier decision’s citation to Wright & Miller is not helpful in our effort to discover

the source of Rule 26(b)(3)’s interpretation of “party” as “party to the litigation,” and, as a matter

of fact, the discussion in Wright & Miller about what the Grolier decision called the “problems

such a construction of Rule 26(b)(3) might engender in the civil discovery area” is instructive. For

Wright & Miller offered that “Rule 26(b)(3), literally read, seems to give insufficient protection to

material prepared in connection with some other litigation” and noted that other rules such as Rule

26(c) (allowing protective orders under appropriate circumstances) may fill the gap by allowing

courts to “vindicate the purposes of the work-product rule ….” Wright, Miller & Marcus, Federal

Practice & Procedure § 2024, at 356, cited in In re Polypropylene Carpet Antitrust Litig., 181

F.R.D. 680, 691-92 (N.D. Ga. 1998) (invoking Rule 26(c) to extend work-product protection to

federal Department of Justice documents where DOJ was not a party to the instant litigation, and

the materials were prepared in connection with a separate matter in which they would have been

considered protectible work product).

This Court agrees with Wright & Miller and the Polypropylene court that an overly literal

reading of Rule 26(b)(3) can indeed lead to civil discovery problems if the courts construe the Rule

narrowly to force attorneys to fork over work-product materials that they prepared not just in some

other litigation, but in anticipation of this litigation itself. Moreover, this Court does not accept

the broad proposition that the 1970 amendment to Rule 26(b)(3) codified the work-product

doctrine to such an extreme extent that the new rule effectively overruled anything in Hickman

that could be construed to the contrary. The Court’s view thus may be in tension with Castro’s

articulation of the restrictive consequences, for application of the work-product doctrine, of the

1970 “codification” of Rule 26(b)(3). See Castro, 2013 WL 1707094, at *2 (noting that according

to the Supreme Court dicta in Grolier, Rule 26(b)(3) now “governs the extent to which trial

preparation materials are discoverable in federal courts.”) (internal quotations omitted). Aside

from the On Point/Henterly materials being core work product without the independent legal

significance of the materials at issue in Castro, this Court is declining to find that in this case, Rule

26(b)(3) or the Grolier dicta commands that Hagens Berman’s core attorney work product be

disclosed to Defendants whom Hagens Berman sued on behalf of the named Plaintiffs in this case,

simply because Hagens Berman retained the investigators or caused the materials to be generated

before the named Plaintiffs signed a retention letter with Hagens Berman. To so find would be to

undercut significantly the policies underpinning Hickman, which is still good law in the Seventh

Circuit. See Sandra T.E. v. South Berwyn Sch. Dist. 100, 600 F.3d 612, 621-22 (7th Cir. 2010)

(citing Hickman for the following: “Codified at Rule 26(b)(3) …. the work-product doctrine is

designed to serve dual purposes: to protect an attorney’s thought processes and mental impressions

against disclosure; and (2) to limit the circumstances in which attorneys may piggyback on the

fact-finding investigation of their more diligent counterparts.”) Even where the Seventh Circuit

has held that the doctrine does not protect documents that were prepared not in anticipation of

litigation, but rather as a business precaution amid the mere contingency that litigation may result,

our appeals court has referred to the “threshold determination” as being “whether the materials

sought to be protected from disclosure were in fact prepared in anticipation of litigation.” Binks

Mfg. Co. v. Nat’l Presto Indus., Inc., 709 F.2d 1109, 1118 (7th Cir. 1983). The Seventh Circuit

also has counseled against an overly narrow application of discovery rules in derogation of the

spirit and purpose of the Rules as a whole, including Rule 1’s directive that courts promote “just”

determinations of the actions before them – citing Hickman and Wright & Miller:

We must remember that Rule 1 states, with unmistakable clarity, that the Federal

Rules of Civil Procedure “shall be construed to secure the just, speedy, and

inexpensive determination of every action.” This language explicitly indicates that

the federal rules are to be liberally construed. Cf. Hickman v. Taylor, 329 U.S. 495,

507, 67 S. Ct. 385, 392, 91 L. Ed. 451 (1947). There is no place in the federal civil

procedural system for the proposition that rules having the force of statute, though

in derogation of the common law, are to be strictly construed. C. Wright & A.

Miller, Federal Practice and Procedure: Civil 2d § 1029 (1987). “[The] spirit, intent,

and purpose [of Rule 16] is ... broadly remedial, allowing courts to actively manage

the preparation of cases for trial.” In re Baker, 744 F.2d 1438, 1440 (10th

Cir.1984) (en banc), cert. denied, 471 U.S. 1014, 105 S. Ct. 2016, 85 L.Ed.2d 299

(1985)…. The wording of the rule and the accompanying commentary make plain

that the entire thrust of the amendment to Rule 16 was to urge judges to make wider

use of their powers and to manage actively their dockets from an early stage. We

therefore conclude that our interpretation of Rule 16 to allow district courts to order

represented parties to appear at pretrial settlement conferences merely represents

another application of a district judge’s inherent authority to preserve the

efficiency, and more importantly the integrity, of the judicial process.

G. Heileman Brewing Co., Inc. v. Joseph Oat Corp., 871 F.2d 648, 652 (7th Cir. 1989). Another

way to look at Rule 26(b)(3), discussed further below, is that its “codification” of the work-product

doctrine was not complete. See In re Student Fin. Corp., No. 06-MC-69, 2006 WL 3484387, at

*10 (E.D. Pa. Nov. 29, 2006) (“The rule is only a partial codification of the work product privilege

… and therefore leaves room for the privilege to be asserted outside its terms in appropriate

cases.”), citing Sporck v. Peil, 759 F.3d 312, 316 (3d Cir. 1985). The Advisory Committee notes

state that Rule 26(b)(3) was intended to add uniformity to federal courts’ treatment of the work-

product doctrine. But “nothing in the text of the rule or its history, or in the relevant advisory

committee notes, suggests that it was intended to foreclose the application of the attorney work

product privilege outside its terms in appropriate cases.” Id. (emphasis added).

B. Hickman and “the Realities of Litigation” Support Extending Rule 26(b)(3)

Beyond Its Literal Language in Appropriate Cases Such As This One.

That takes us back to Hickman and the essence of its holding, which recognized the

existence of work-product protection in the first place. The Supreme Court in Hickman was

concerned that attorneys should “work with a certain degree of privacy, free from unnecessary

intrusion by opposing parties and their counsel.” 329 U.S. at 510. Fundamentally, lawyers prepare

their clients’ cases by gathering facts, sorting what the lawyers think are relevant facts from

irrelevant ones, and preparing legal theories and strategies “without undue and needless

interference.” Id. at 511.

That is the historical and the necessary way in which lawyers act within the

framework of our system of jurisprudence to promote justice and to protect their

clients’ interests. This work is reflected, of course, in interviews, statements,

memoranda, correspondence, briefs, mental impressions, personal beliefs, and

countless other tangible and intangible ways—aptly though roughly termed by the

Circuit Court of Appeals in this case (153 F.2d 212, 223) as the ‘Work product of

the lawyer.’ Were such materials open to opposing counsel on mere demand, much

of what is now put down in writing would remain unwritten. An attorney’s

thoughts, heretofore inviolate, would not be his own. Inefficiency, unfairness and

sharp practices would inevitably develop in the giving of legal advice and in the

preparation of cases for trial. The effect on the legal profession would be

demoralizing. And the interests of the clients and the cause of justice would be

poorly served.

Id. Five years after the 1970 amendments created Rule 26(b)(3), the Supreme Court confirmed

that the work-product doctrine “is an intensely practical one, grounded in the realities of litigation

in our adversary system.” United States v. Nobles, 422 U.S. 225, 238 (1975). Nobles made clear

that the doctrine extended to protect materials created by investigators working for attorneys if the

materials were created in anticipation of litigation. Id. at 238-39. Nobles did not present the

question of whether “pre-client” (a term Defendants use to describe the On Point/Henterly

investigation) materials might be protected by the work-product doctrine, but the practicality of

the doctrine suggests that it ought to extend not only to the persons who prepared the materials but

also to the goal or end for which they were prepared, in appropriate cases.

Just as the work of investigators and paralegals is a reality of litigation, so is the fact that

counsel in a complex class action might become aware of the claims, or might need to investigate

the claims, before the identities of the claimants are actually known by counsel. Since at least

1981, class counsel has not been categorically barred from communications with potential class

members, and limits on communications with class members require a specific showing of abusive

conduct. Gulf Oil Co. v. Bernard, 452 U.S. 89, 100-01 (1981). (Plaintiffs’ counsel here is not

accused of abusively communicating with potential class members.) In the instant case, counsel

had represented classes of purchasers of other commoditized protein-based food products such as

chicken and pork, and Hagens Berman noted a “unifying” thread along which the work product

from the pork and chicken cases “overlapp[ed]” with the memoranda sought by Defendants in the

On Point/Henterly subpoenas: “the presence of Agri Stats, the dissemination of Agri Stats reports,

and the use of Agri Stats by these industries to constrain supply and pricing.” Pl. Reply at 2. The

reality here is that the most effective way to learn about industry practices was not to interview the

purchasers, but the participants in the turkey industry.

The Court’s in camera review of the On Point/Henterly materials, it must be said, gave no

hint of any abusive conduct. The On Point/Henterly investigation was simply that – an

investigation by which counsel found facts it later used to support a complaint on behalf of named

class representatives who retained Hagens Berman either during or immediately after that pre-

filing investigation. In fact, the in camera materials offer no transparency into how Hagens

Berman did identify or select the named Plaintiffs for representation in this case. Instead, the

materials reflect pure factual investigation and opinion (by either counsel or its agent investigators)

based on that investigation. They reflect the pure reality that in a complex class action like this

one, in which two other actions were being maintained against comparable industries, counsel

concluded that they should investigate whether facts might support a similar action against turkey

integrators. In this particular space, sought to be invaded by Defendants’ On Point and Henterly

subpoenas, resided the mental impressions of Defendants’ opposing counsel in this very matter.

The cases Defendants cite to support their formalistic reading of Rule 26(b)(3) to limit the

work-product doctrine to material prepared by or for the party to the litigation are completely

unlike the instant case, where Defendants seek materials that opposing counsel prepared, or had

prepared, relating directly to the case actually filed by opposing counsel; i.e., materials that were

prepared in anticipation of this very litigation. By contrast, In re Calif. Public Utilities Comm’n,

892 F.2d 778, 781 (9th Cir. 1989), a prime arrow in Defendants’ quiver on their cross-motion to

compel, held that a public agency’s internal memorandum was discoverable because the agency

was not a party to the litigation. Similarly, other courts that have found that Rule 26(b)(3) limits

work-product protection only to materials prepared by or for a party to the litigation did not

confront the circumstance here, in which a party sought the work-product materials of opposing

counsel in the same litigation. See Hill v. City of Chicago, No. 13 C 4847, 2015 WL 12844948,

at *1-2 (N.D. Ill. May 28, 2015) (finding the case files of criminal prosecutors in an earlier criminal

prosecution of plaintiff were discoverable in plaintiff’s ensuing civil rights litigation); Hernandez

v. Longini, No. 96 C 6203, 1997 WL 754041, at *2 (N.D. Ill. Nov. 13, 1997) (“Though the general

rule against a non-party asserting the privilege is certainly susceptible to the discomforting

situation of a less diligent attorney raiding the file of a previously diligent attorney, this danger is

not present where the prior case was criminal and the subsequent civil.”) (internal quotations and

citations omitted).

That highly “discomforting” (as Judge Kocoras put it) element was missing from those

cases, but it is not missing from this one: As the in camera review of the On Point/Henterly

materials showed, the reality of Defendants’ subpoenas is that they amount to a raid, by

Defendants, of Hagens Berman’s litigation files relating directly to this action. This reality puts

into relief the powerful rationales, set forth in Hickman, for work-product protection where an

attorney in a litigation matter wants to see the investigative files of opposing counsel in that very

same litigation. Considering these realities, against the backdrop of Hickman, this Court cannot

help but view the circumstances of the On Point/Henterly subpoenas as an “appropriate” case for

coverage of the work-product doctrine, even if Rule 26(b)(3) codified Hickman in a way that

facially limits work-product protection to parties to the litigation. See In re Student Fin., 2006 WL

3484387, at *11 (holding that Hickman authorizes extending work-product protection “outside the

terms” of Rule 26(b)(3) where subpoena was on a non-party but sought work-product materials

prepared by that non-party in anticipation of being sued by the party that issued the subpoena, and

where non-party was a creditor in an adversary bankruptcy action where the party subpoenaing it

was the defendant).

In re Student Finance is one example of a court extending Hickman’s work-product

protections beyond Rule 26(b)(3)’s confines of “party to the litigation” (words, that, again, do not

appear in the Rule). Therefore, in recognizing that appropriate circumstances could exist for

extending the doctrine, based on Hickman, to circumstances outside the supposed terms of the

Rule, this Court is not “the first” to do so, as Defendants suggest. See Def. Reply at 2. Movants

provided other examples, insofar as Rule 26(b)(3)’s codification of the doctrine has been

recognized as only “partial,” leaving Hickman’s protections unscathed as applied to so-called

“intangible” work protect such as “interviews.” Pl. Reply at 10-11 & n.5 (citing Walker v. White,

No. 16 CV 7024, 2019 WL 1953124, at *4 (N.D. Ill. May 2, 2019) (noting that “established case

law” confirms that “the work product doctrine extends to ‘intangibles.’”); Caremark, Inc. v.

Affiliated Comput. Servs., Inc., 195 F.R.D. 610, 614 (N.D. Ill. 2000) (describing Rule 26(b)(3) as

applying “only to tangibles and codif[ying] that portion of the Hickman opinion that relates to

documents. Hickman v. Taylor and other common law developments also govern intangibles, such

as interviews.”); and Adams v. Mem’l Hermann, 973 F.3d 343, 349-50 (5th Cir. 2020) (“Hickman

was later partially codified as Rule 26(b)(3) in the Federal Rules of Civil Procedure…. Despite the

language of Rule 26, the work-product doctrine protects both ‘tangible and intangible’ work

product.”).

In response, Defendants insist that by subpoenaing the On Point/Henterly documents, they

seek only the “tangible” investigative file documents, so that a partial codification of Hickman

does not save Plaintiffs’ argument. Def. Reply at 9. Again, Defendants are arguing that per Castro

and the Grolier dicta, if the material sought in discovery is a “tangible” document, it falls outside

the work-product protection of Rule 26(b)(3) if the attorneys cause the materials to be generated

before they formally retained the client. Id. But we find this to be a distinction without a

difference. “Intangible” work product encompasses attorney mental impressions. DSM Desotech

Inc. v. 3D Sys. Corp., No. 08 C 1531, 2011 WL 117048, at *2 (Jan. 12, 2011), citing United States

v. Deloitte LLP, 610 F.3d 129, 136 (D.C. Cir. 2010). See also Hickman, 329 U.S. at 510-11 (“This

work is reflected, of course, in interviews, statements, memoranda … and countless other tangible

and intangible ways-aptly though roughly termed ... as the ‘Work product of the lawyer.’”).

Although the On Point/Henterly subpoenas seek production of tangible documents rather than an

order that attorneys talk about or write out their mental impressions, discovery and disclosure of

the attorney mental impressions about the witness interviews will inevitably result from compelled

production of interview memoranda, outlines and notes under the subpoenas.

In addition, even where courts have held that certain materials were outside the work-

product doctrine, they have suggested that the materials might well be within the doctrine if their

discovery might upset the “competitive balance” in the litigation. See Hill, 2015 WL 12844948, at

*3 (noting, in allowing discovery, that the prosecuting office invoking the work-product doctrine

“has not argued that ordering it to produce its attorney impressions regarding the underlying

criminal case would implicate the competitive balance between the litigants in this case”); LG

Electronics, Inc. v. Motorola, Inc., No. 10 CV 3179, 2010 WL 4513722, at *4 (N.D. Ill. Nov. 2,

2010) (granting discovery over work-product claims from a patent holder where the litigation

involved only a subsequent holder of the patent, where court did not see the original patent holder’s

relationship with the subsequent patent holder as giving rise to a disruption of the “competitive

balance” between the plaintiff and the subsequent patent holder, so that the court would not, in

these circumstances, “ascrib[e] to it party-like status in reviewing its assertion of the work-product

doctrine”). Hagens Berman’s factual development of the turkey complaint at a time it had in mind

the facts of the Broiler Chickens and Pork cases (and the alleged involvement of information

exchanges of Agri Stats data), but almost immediately before the named Plaintiffs retained Hagens

Berman amid the reality of the choices and decisions class counsel and named plaintiffs make in

large class actions, adds a layer of complexity to determining whether Rule 26(b)(3) protects the

pre-filing (and pre-retention) investigative materials. Complex circumstances like these force

courts to tackle the challenge of complexity and not rest on a formalistic application of language

in a statute or rule.5

Tackling the challenge of complexity in this case teaches that if work-product protection

does not apply to the On Point/Henterly investigation materials, the ability of putative class counsel

in complex class actions to investigate, build and file class cases would be seriously hampered, for

all of the reasons the Supreme Court mentioned as concerns in its 1947 opinion in Hickman. Class

counsel would be unable to retain investigators without risking disclosure of the investigation

materials. Investigative materials could not contain frank assessments of the fact finding.

Counsel’s ability to meet its Rule 11 obligations would suffer. Disincentivizing even rudimentary

Rule 11 pre-filing investigations might leave class claims and class counsel even more vulnerable

to Rule 11 motions asserting that the pre-filing investigation was too thin. The costs and risks of

bringing class actions would increase substantially. The persons who would pay the greatest price

would likely be individual class members whose claims are of such small value that they are not

incentivized to bring individual actions, see generally Fed. R. Civ. P. 23, as well as the greater

society, which would be less able to avail itself of Rule 23 to ensure that redress exists for greater

wrongs that inflict just a little bit of damages on a large number of individuals. These outcomes

5 As Judge Posner has written:

At the root of the refusal of many judges to confront, even to recognize, the challenge of

complexity is a professional mind-set that often includes – along with impartiality,

conscientiousness, and other traditional attributes of a good judge – lack of curiosity, a

feeling of intimidation by science and technology, and a lack of interest in obtaining an

empirical rather than merely intuitive grounding for one’s beliefs.

Richard A. Posner, Reflections on Judging 92 (Harvard 2013).

are in the heartland of precisely what Hickman warned against.6 A result faithful to Hickman

requires the Movants’ work-product claim to be upheld under any common-sense application of

Rule 26(b)(3) in the appropriate circumstances presented in this case.

III. Rule 26(b)(3)’s Plain Language Ultimately Supports Granting the Motions To Quash

Without Having To Extend the Rule Beyond Its Terms.

Even if a literal reading of Rule 26(b)(3) bars work-product protection of investigative

materials created before formal client retention, the work-product doctrine shields the On

Point/Henterly materials from discovery in this case because the plain language of Rule 26(b)(3)

offers sufficient protection in any event, under the circumstances here. The plain language of Rule

26(b)(3) contains one important qualifier (“ordinarily”), and another important word (“for”), and

we must apply both faithfully.

First, the sentence describing the newly “codified” work-product doctrine in 1970 begins

with the qualifying word “[o]rdinarily.” “Ordinarily” is an adverb describing an event having or

taking its place according to customary occurrence or procedure, per the “usual” or “normal.”

Webster’s Collegiate Dictionary 698 (5th ed. 1944). “Ordinary” also has been used to describe an

event or action that is “commonplace, not distinguished.” The Winston Dictionary, College

Edition 683-84 (1939). More contemporary dictionary definitions of this word are not materially

different. See Miriam Webster’s Collegiate Dictionary 817 (10th ed. 2001) (“of a kind to be

expected in the normal order of events”). In a circumstance in which a party to an action has not

6 To say that all counsel need do is obtain a signed client engagement letter is too facile. The record before

the Court does not disclose the specific circumstances surrounding the retention of Hagens Berman, by

John Gross and Olean, to litigate the turkey antitrust claims. To delve further into that issue would strike

deeply at privileged communications and at the attorneys’ thought processes in determining what named

plaintiffs might make the most suitable class representatives to pursue particular claims. Hickman and its

progeny are supple enough to recognize work-product protection of intangible mental impressions amid the

complex, fast-moving milieu in which other protein-related antitrust matters were up and running when

Hagens Berman and Grindal Lockridge put together the initial turkey complaint in December 2019.

yet retained a lawyer, and the lawyer retains an investigator to examine the claim, even if we were

to assume (or to determine upon an in camera review) that the lawyer’s opposing counsel’s

subpoenas for the investigative files are not a competitively unbalanced raid on the adversary’s

file, we would not read the Rule as categorically foreclosing the applicability of the work-product

doctrine in light of the drafters’ use of the word “ordinarily.” The Rule does not lend itself to

crystal clarity about whether the drafters’ inclusion of “ordinarily” simply means that work-

product information is not discoverable unless the party seeking it meets the burden of establishing

substantial need for the material. That is one possible interpretation. But another interpretation is

that “ordinarily” modifies the entire sentence, and that under circumstances that are not

commonplace or routine, the work-product doctrine is not as rigidly limited as Defendants contend.

That latter interpretation is more faithful to the text of Rule 26(b)(3), and it is consistent with the

command that courts construe the Rules broadly and remedially within our substantial discretion

in managing civil discovery. See G. Heileman, 871 F.2d at 652; Jones, 737 F.3d at 1115. Applying

this interpretation, the Court finds that here, amid the odor of one counsel’s attempt to raid the

other’s file in the very same litigation, in the absence of any hint of champerty or other misdeeds,

and where the client retention occurs within a very short time of the pre-retention investigation,

the circumstances of this particular pre-retention investigation were not “ordinary.” The plain

language of Rule 26(b)(3) accommodates Hagens Berman’s invocation of the work-product

doctrine to bar discovery of the On Point/Henterly materials under these extraordinary

circumstances.

Second, we agree with the Movants’ argument (see Pl. Reply at 6-7) that even if John Gross

or Olean had not formally retained Hagens Berman at the time of the On Point/Henterly

investigation, that fact does not preclude this Court from finding that the materials still were

prepared “for” the named Plaintiffs, in the language of Rule 26(b)(3). Indisputably, On Point and

Henterly performed their investigative services in furtherance of the Hagens Berman investigation

into the turkey industry for purposes of Hagens Berman’s bringing this litigation on behalf of some

client to be identified later, as is clear from the On Point/Henterly engagement letter. The

investigative interviews, or information from them, found their way into the complaint that Hagens

Berman filed on behalf of the named Plaintiffs, even if Hagens Berman may not have known the

precise identity of the named Plaintiffs (or had not been formally retained by them) at the time of

the pre-filing investigation. As such, the Court finds that the On Point/Henterly investigation was

performed “for” the named Plaintiffs John Gross and Olean, because without the pre-filing or pre-

retention investigation, John Gross and Olean would have had far fewer (and possibly insufficient)

facts to assert in support of their claims. The On Point/Henterly investigation developed facts

which Hagens Berman considered and used to draft a complaint for the named Plaintiffs, and

Hagens Berman filed that complaint for the named Plaintiffs almost immediately after the

investigation concluded. “For” means “indicating the end with reference to which anything acts,

serves or is done, as money for studying.” Webster’s Collegiate at 390 (emphasis in original). If

a person, then, who aspires to be a lawyer, works in a restaurant for five years before she applies

and is admitted to law school, and then spends her hard-earned savings to pay her tuition once she

is admitted, the money she earned before she applied to or attended law school was for law school,

according to a plain reading of the King’s English. The gathering of facts to be used to support a

lawsuit by a yet-to-be-identified or yet-to-be-signed-up class plaintiff was done in service of the

end of Hagens Berman filing that lawsuit on the named Plaintiffs’ behalf, and thus the investigation

was “for” the named Plaintiffs (the parties to the litigation), even if those parties had not signed

their engagement letters with Hagens Berman during the month or so during which the pre-filing

investigation was done. To the extent Defendants might argue that the investigative work cannot

have been “for” the named Plaintiffs because of the temporal sequencing of the investigation

occurring before formal retention, the Court disagrees. The drafters of Rule 26(b)(3) never settled

on the restrictive temporal construction Defendants are advancing here. After all, according to the

Supreme Court, “Rule 26(b)(3) does not in so many words address the temporal scope of the work-

product immunity and a review of the Advisory Committee’s comments reveals no express

concern for that issue.” Grolier, 462 U.S. at 25.

Consequently, even if Rule 26(b)(3) strictly applies to limit work-product assertions to

materials prepared “by or for” a party to the litigation, and even if the Rule’s use of the word

“ordinarily” does not anticipate flexibility as this Court believes it does, On Point and Henterly

still prepared their investigative materials “for” John Gross and Olean, and the On Point/Henterly

subpoenas must be quashed.

IV. Rules 26(c), 45(d) and 26(b)(1) Also Support Granting the Motions to Quash Under

the Circumstances Presented in This Case.

Two of Defendants’ leading authorities for limiting work-product protection to materials

prepared in anticipation of litigation “by or for” parties to the litigation are the Ninth Circuit and

Wright & Miller, both of which have said, in effect, that “by or for a party” means that party must

already be in the litigation. But both of those authorities recognized that 26(b)(3) is not the only

tool under the Rules to protect a party from discovery that it can persuade a court is oppressive.

Rules 26(c), 45(d) and 26(b)(1) also are available and independently support quashing the On

Point/Hentely subpoenas.

A. Rule 26(c) Authorizes Quashing the On Point/Henterly Subpoenas.

The Ninth Circuit opinion in In re Calif. Public Utilities Comm’n supports Defendants’

view that Rule 26(b)(3) extends work-product protection only to materials prepared (in

anticipation of litigation) by parties to the litigation, but it recognized that Rule 26(c) protective

orders are available as a sort of safety valve for situations in which Rule 26(b)(3) inadequately

protects attorney work product. 892 F.2d at 781 & n.2. Even while denying work-product

protection under Rule 26(b)(3), the Ninth Circuit observed that the subpoenaed non-party public

agency remained free to move for a protective order under Rule 26(c) on grounds of oppression.

Id. The authorities on which the Ninth Circuit relied for that proposition included Wright & Miller,

which had a similar view of the interplay between Rule 26(b)(1) and Rule 26(c) when attorney

work-product materials are sought in discovery. See id. (citing Wright & Miller); 8 Charles Alan

Wright & Arthur R. Miller, Federal Practice and Procedure § 2024 (3d ed.), Westlaw (database

updated Apr. 2021) (describing Rule 26(b)(3)’s work-product protection as arguably giving

“insufficient protection” to work-product materials but suggesting that Rule 26(c) offers an

alternative route to “vindicat[ing] the purposes of the work-product rule ….”) The text of Rule

26(c) allows a party to move the Court, on a showing of good cause, for an order protecting that

party from “annoyance, embarrassment, oppression, or undue burden or expense ….” Fed. R. Civ.

P. 26(c). Movants here have invoked Rule 26(c) as an additional source of protection for the On

Point/Henterly materials. Pl. Reply at 10.

The Court finds that the oppression and undue burden caused by the On Point/Henterly

subpoenas, in the form of hindering the ability of Hagens Berman to prepare its case and gather

facts without intrusion and interference by Defendants seeking to pry into opposing counsel’s

mental impressions formed in preparation for litigation, constitute good cause for a protective

order under Rule 26(c) and an alternative ground for quashing the subpoenas. See In re

Polypropylene, 181 F.R.D. at 692 (issuing a protective order under Rule 26(c) to protect third party

documents that “would constitute attorney work product as defined by Rule 26(b)(3) if [the third

party] was a party to this litigation”); Basinger v. Glacier Carriers, Inc., 107 F.R.D. 771, 772-73

(M.D. Pa. 1985) (quashing subpoena under Rule 26(c) as unduly burdensome and unjust where

the subpoenaed entity, as a non-party, could not invoke Rule 26(b)(3) but would have had to

produce work-product materials to a party that might subsequently sue it in the litigation); In re

Student Fin., 2006 WL 3484387, at *11 (citing Basinger and In re Polypropylene for the

proposition that Rule 26(c)’s language “is sufficiently sweeping to authorize a protective order

preventing the undue burden of disclosing third-party work product in appropriate cases”).

B. Rule 45(d) Authorizes Quashing the On Point/Henterly Subpoenas.

The third-party Movants (On Point and Henterly) also have invoked Rule 45(d) as support

for the motions to quash. Pl. Reply at 12-13. Rule 45(d) permits a third party to move to quash a

subpoena that “requires disclosure of privileged or other protected matter” or “subjects a person

to an undue burden.” Fed. R. Civ. P. 45(d)(3)(A)(iii) and (iv).

Rule 45 expressly provides that the court from which a subpoena has issued shall

quash or modify the subpoena if it “requires disclosure of privileged or other

protected matter and no exception or waiver applies.” [Then] Rule 45(c)(3)(A)(iii).

Rule 45 does not define what privileges and protections are to be enforced under

its terms, but the language is broad enough to include protection against discovery

of third-party work product in appropriate cases. Nothing in Rule 45’s history or

text indicates that it was intended to incorporate Rule 26(b)(3)’s restriction of work

product to parties. The Advisory Committee Notes to the 1991 revisions to the rule

indicate that the authority to issue protective orders under Rule 45 was intended to

track the general protective order provisions of Rule 26(c), but do not mention the

work product provisions of Rule 26(b).

In re Student Fin., 2006 WL 3484387, at *11; Carnes v. Crete Carrier Corp., 244 F.R.D. 694, 699

(N.D. Ga. 2007) (“Although the text of Rule 26(b)(3) appears to limit work product to parties, Rule

26(c), Rule 45, and Hickman suggest that the scope of protection should extend to a non-party …

under the facts of this case.”).

This Court concurs with In re Student Finance and Carnes, and finds that the On

Point/Henterly subpoenas’ would-be raid on the files of opposing counsel, in a manner that would

compel disclosure of attorney mental impressions formed in preparation for litigation against the

very parties seeking to raid the files, presents an appropriate circumstance for issuance of a

protective order under Rule 45(d)(3)(A)(iii) and (iv). Rule 45(d) thus offers another alternative

basis for granting the motions to quash.

C. Rule 26(b)(1) Authorizes Quashing the On Point/Henterly Subpoenas.

Finally, Rule 26(b)(1), as amended in 2015, introduced the concept of proportionality into

the scope of discovery. Discovery that is disproportional to the needs of the case is now within

the district court’s discretion to deny. For the very same reasons as set forth above, namely the

burden that compelled disclosure of the mental impressions of Hagens Berman and its agents

would impose on their ability to investigate and prosecute the complex class claims asserted here,

the Court finds that the discovery sought by the On Point/Henterly subpoenas is disproportional to

the needs of this case and must be denied. Nothing in the record suggests that Defendants do not

have equal access to the third-party witnesses whom On Point and Henterly interviewed, including

Confidential Witnesses 1, 2 and 3, whose identities are plain from the complaint allegations and

Plaintiffs’ Rule 26(b)(1) disclosures. The availability of the evidence from these witnesses

themselves makes discovery of their interview materials from within the work-product files of

Hagens Berman, On Point, and Henterly all the more disproportional to the needs of the case.

The Court’s analysis of proportionality has included an assessment of burdens on the

policies that underly particular rules or societal practices. See Johnson v. Soo Line R.R. Co., No.

17 C 7828, 2019 WL 4037963, at *2-3 (N.D. Ill. Aug. 27, 2019) (applying Rule 26(b)(1)

proportionality concept to assess burdens that compelled production of federal income tax returns

in civil discovery could place on system of voluntary tax compliance); Washtenaw County

Employees’ Ret. Sys. v. Walgreen Co., No. 15 C 3187, 2019 WL 6108220, at *5-6 (N.D. Ill. Nov.

15, 2019) (applying Rule 26(b)(1) proportionality concept to assess burden that compelled

production of settlement-related materials could place on the social policies underlying Federal

Rule of Evidence 408).

The Court, acting within its discretion, Jones, 737 F.3d at 115, sees the On Point/Henterly

subpoenas’ burden on the work-product protection articulated in Hickman, and on the ability of

Defendants’ opposing counsel to form mental impressions and gather facts in anticipation of the

same litigation in which the subpoenas are issued, as a burden great enough to make the discovery

disproportional under Rule 26(b)(1), which thus offers a third alternative basis for granting the

motions to quash.

CONCLUSION

For the foregoing reasons, the Court grants Movants’ two motions to quash the On

Point/Henterly subpoenas and denies Defendants’ cross-motion to compel compliance with those

subpoenas.

ENTER:

GABRIEL A. an

United States Magistrate Judge

DATED: March 16, 2022

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