The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
IN RE BROILER CHICKEN Case No. 16 C 8637
ANTITRUST LITIGATION
Magistrate Judge Jeffrey T. Gilbert
This Document Relates To: All Actions
MEMORANDUM ORDER
This matter is before the Court on Non-Party Roger Austin’s Motion to Quash
Subpoena [ECF No. 5789] (“Motion”). For the reasons set forth below, the Motion is
denied.!
Pursuant to Rule 45 of the Federal Rules of Civil Procedure, non-party Roger
Austin seeks to quash the deposition subpoena served upon him by Plaintiffs on
August 5, 2022 as unduly burdensome. Federal Rule 26 provides that a party may
“obtain discovery regarding any nonprivileged matter that is relevant to the claim or
defense of any party and proportional to the needs of the case....” FED. R. CIV. P.
26(b)(1). Although third parties are subject to discovery under the Federal Rules of
Civil Procedure, a party’s ability to obtain discovery from a third party is not
unlimited. See Little v. JB Pritzker for Governor, 2020 WL 1939358 (N.D. IIL. Apr. 22,
2020). Courts “must quash” a subpoena that “subjects a person to undue burden.”
1 The Court notes that Mr. Austin included “Oral Argument Requested” in the caption of his
Motion. Mr. Austin, however, does not discuss his request for oral argument in the briefs he
submitted is support of the Motion. See [ECF Nos. 5790, 5822]. There is no reason given why
oral argument is particularly necessary on the Motion. The parties’ briefs frame the issues
well, and their arguments in support of and in opposition to the Motion are clear and
straightforward. The Court is not persuaded oral argument is necessary, and Mr. Austin’s
request for oral argument therefore is denied.
FED. R. Civ. P. 45(d)(3)(A)(iv). In determining whether a subpoena for a deposition
imposes an undue burden on a non-party, a court weighs several factors, including:
(1) the deponent’s status as a non-party; (2) the relevance of the discovery sought by
the party or parties that served the subpoena; (3) those parties’ need for the discovery;
and (4) the burden imposed on the deponent. See Ansur Am. Ins. Co. v. Borland, 2022
WL 1605338, at *2 (S.D. Ill. May 20, 2022). In the Court’s view, each of these factors
weighs in favor of denying Mr. Austin’s Motion in this case.
As to the first factor, Mr. Austin is not a named party in this case, but he is not
a stranger to this litigation or to the parties and claims being asserted. While this
Court must take into consideration the fact that Mr. Austin is not a party to this
litigation, that is not the most important or even a decisive factor here. Until his
retirement in 2018, Mr. Austin was employed as a salesman for 18 years at Pilgrim's
Pride Corporation (“Pilgrim’s Pride”), one of the defendants in this case, with primary
responsibility for selling chicken to Kentucky Fried Chicken and intermittently other
quick-service restaurants. Prior to his retirement, Mr. Austin was an agreed-upon
document custodian for Pilgrim’s Pride’s document production to Plaintiffs in this
case. Mr. Austin also was a named defendant in three federal criminal trials that
centered on allegations that he participated in a bid-rigging conspiracy in the broiler
chicken industry from 2012-2019. After two trials which ended with deadlocked
juries, Mr. Austin and his co-defendants were acquitted in the third trial. See United
States v. Penn et al., 20-cr-00152 (D. Colo. 2022).
Class Plaintiffs have made no secret of their desire to depose Mr. Austin in this
case during discussions with Pilgrim’s Pride. Though Mr. Austin and his counsel were
not privy to those discussions, or specifically to the settlement discussions and
agreements between Class Plaintiffs and Pilgrim’s Pride about Class Plaintiffs’
express desire to depose Mr. Austin in this case, it should come as no surprise to him
that Plaintiffs would be interested in taking his deposition to discover his knowledge
about topics relevant to this litigation.
As to the second and third factors, the fact that Mr. Austin was an agreed-upon
custodian in this case belies his position that he has little to no relevant information
or had little involvement in issues covered by Track One discovery. The Court is not
persuaded by Mr. Austin’s bald statements about his lack of relevant knowledge, and
Plaintiffs do not have to take Mr. Austin’s word that he does not have any relevant
information. See Berdell v. Velocity Investments LLC., et al., 2022 U.S. Dist. LEXIS
85653, at *3 (N.D. Ill. May 11, 2022) (holding that a plaintiff does not have to take a
respondent’s word that he/she does not have relevant information and the mere fact
that that other parties or third parties also may have relevant information does not
preclude a party from taking the deposition of a relevant non-party).
Mr. Austin’s inclusion as a document custodian is itself a recognition by both
Pilgrim’s Pride and Plaintiffs that Mr. Austin may have or is likely to have
information relevant to the claims or defenses in this matter. See Kleen Prod. LLC v.
Packaging Corp. of Am., 2012 WL 4498465, at *15 (N.D. Il. Sept. 28, 2012). Also, it
is not disputed that Pilgrim’s Pride produced over 20,000 documents from Mr.
Austin’s custodial file. Based on documents produced in this case and cited in part in
their brief in opposition to Mr. Austin’s Motion, among other reasons, Plaintiffs want
to depose Mr. Austin. See Plaintiffs’ Memorandum of Law in Opposition to Motion
[ECF Nos. 5807, 5809], at 5-7. So long as the information being sought is relevant
and proportional to the needs of the case, as it appears to be here, that discovery
should proceed. Nothing that Mr. Austin has argued in his Motion and supporting
briefs has convinced the Court that the discovery Plaintiffs seek is not relevant or not
proportional to the needs of this case.
The Court also is not persuaded by Mr. Austin’s argument that Plaintiffs
waited too long to seek his deposition. Again, as noted above, it should come as no
surprise to Mr. Austin or his counsel that Plaintiffs want to depose him. All Mr.
Austin’s alleged co-conspirators in the criminal case—William Lovette, Bill Kantola,
Jayson Penn, Mikell Fries, Scott Brady—either already have been deposed or have
agreed to be deposed in this litigation. See Plaintiffs’ Memorandum of Law in
Opposition to Motion [ECF Nos. 5807, 5809], at 8. Mr. Austin appears to seek
treatment that is different than that afforded almost every other individual involved
in the criminal case, but he has not offered any convincing reason why the Court
should accede to that position.
As to the fourth factor, the Court is not persuaded by Mr. Austin’s argument
that sitting for a deposition in this case would impose a substantial and undue burden
on him. The facts that Mr. Austin is 65 years old and retired from Pilgrim’s Pride do
not substantiate his claim of undue burden. Mr. Austin has not indicated he is in poor
health or that he otherwise is not able to sit for a deposition. The Court understands
that Mr. Austin spent a significant amount of time defending himself in the criminal
trials. That, however, is not a reason to excuse him from being deposed in this civil
litigation. Those criminal trials were separate and distinct from these civil cases.
In the Court’s view, Mr. Austin has not demonstrated any real prejudice or
undue burden that would result from him sitting for a deposition in this case.
Plaintiffs have not asked Mr. Austin to produce any documents for his deposition,
and they have agreed that he can be deposed remotely so he does not have to leave
his home or family to comply with the subpoena. Accordingly, for all these reasons,
Non-Party Roger Austin’s Motion to Quash Subpoena [ECF No. 57 89] is denied.
It is so ordered.
é
e ilbert
nited States Magistrate Judge
Dated: November 30, 2022