# IN RE PORK ANTITRUST LITIGATION

> District Court, D. Minnesota · January 3, 2023

URL: https://www.frixlaw.com/law-library/cases/10230251

## Case

- **Court:** District Court, D. Minnesota
- **Decided:** January 3, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10230251

## How later opinions describe it (automated extraction)

- finding that the district court did not err in ruling a discovery request disproportionate, even though the party did not provide affidavits or other specific evidence that the request was burdensome, because the court had sufficient information to decide based on common sense

## Opinion text

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

IN RE PORK ANTITRUST LITIGATION
Civil No. 18-1776 (JRT/JFD)

This Document Relates To:
ALL ACTIONS
MEMORANDUM OPINION AND ORDER
OVERRULING CERTAIN DIRECT ACTION
PLAINTIFFS’ OBJECTIONS TO
MAGISTRATE JUDGE’S ORDER DATED
NOVEMBER 16, 2022

Certain Direct Action Plaintiffs1 (“Moving DAPs”) in this case filed a motion to
compel production of Defendants’ sales data for four categories of pork products not
included in other discovery requests. The Magistrate Judge denied the motion to compel,
finding that the requested sales data’s relevance was outweighed by the DAPs’
untimeliness in bringing the motion and proportionality concerns. The Court now
considers Moving DAPs’ objection to the Magistrate Judge Order. Because the Court finds
that the Magistrate Judge’s decision was not clearly erroneous or contrary to law, it will
overrule the objection.

1 These DAPs are comprised of Compass Group USA, Inc., Conagra Brands, Inc., Howard
B. Samuels solely as Trustee for the estate of Central Grocers, Inc., Nestlé USA, Inc., Nestlé Purina
PetCare Company, Amory Investments LLC, and Sysco Corporation. (Mot. Compel at 1 n.1, Sept.
20, 2022, Docket No. 1493.)
BACKGROUND

I. MOTION TO COMPEL
In October 2021, Moving DAPs served a request for Hormel Foods Corporation;
Hormel Foods LLC; JBS USA, INC.; Smithfield Foods, Inc.; Tyson Foods, Inc.; and Tyson

Fresh Means, Inc. (collectively, the “Defendants”)2 to produce structured sales data for
four categories of pork products (the “requested data”).3 (Mot. Compel at 1, Sept. 20,
2022, Docket No. 1493.) Moving DAPs argue that this information is necessary to assess
the impact and harm that DAPs suffered because of the alleged conspiracy. (Mem. Supp.

Mot. Compel at 2, Sept. 20, 2022, Docket No. 1495.)
The deadline for the parties to produce substantial sales data was September 1,
2021, and the parties agreed that Defendants would produce “any additional structured

data” requested by the DAPs by December 1, 2021. (Order on Stipulation Regarding
Pretrial Scheduling Order, Nov. 12, 2020, Docket No. 532; Joint Statement at 3, Dec. 10,
2021, Docket No. 1046.) But Defendants asserted that the requested data was outside

2 Defendants Clemens Food Group and Seaboard Foods have produced the sought-after
sales data and thus are excluded from this list of Defendants. (Mem. Supp. Mot. Compel at 1–2,
Sept. 20, 2022, Docket No. 1495.)
3 Specifically, Moving DAPs sought Defendants’ sales data related to (1) hot dogs and
various types of franks that include pork and non-pork meat; (2) multi-ingredient products such
as pepperoni, breakfast burritos, sausage tots, or sausage rolls; (3) offal products, which are
products removed from the carcass during processing such as fat, heats, and other organs; and
(4) renderings and by-products such as blood meal and bone meal. (Mem. Supp. Mot. Compel at
2, Sept. 20, 2022, Docket No. 1495.)
the agreed-upon scope of Defendants’ sales data, which the parties had extensively
negotiated for several months, and thus did not provide it by the December 1, 2021

deadline.4 (Mem. Opp. Mot. Compel at 2, Sept. 29, 2022, Docket No. 1521.)
In September 2022—almost a full year after they requested the data and just a
couple of weeks before the close of fact discovery—the Moving DAPs filed a motion to
compel. (Mot. Compel.) Defendants opposed the motion as untimely, only marginally

relevant, disproportionate, unduly burdensome, and prejudicial. (Mem. Opp. Mot.
Compel at 2–3.) The parties presented their arguments to the Magistrate Judge on
October 5, 2022. (See generally Tr. Mot. Hr’g, Oct. 9, 2022, Docket No. 1529.)

II. MAGISTRATE JUDGE’S ORDER
After considering the parties’ positions, the Magistrate Judge issued an Order on
November 16, 2022, denying the Moving DAPs’ motion to compel. (Order, Nov. 16, 2022,

Docket No. 1608.) The Magistrate Judge denied the motion because, although the
requested data was marginally relevant, it was untimely and disproportionate. (Id. at 9,
12–13.) The Magistrate Judge found that the motion to compel was untimely because
the Moving DAPs were on notice that structured data production deadlines applied to

them and were advised via August 2021 emails that the requested data they sought would

4 It should be noted that the Moving DAPs were not party to this earlier agreement, but
this is not dispositive because Moving DAPs had notice that they would be subject to previous
agreements and orders in this action.
be excluded from Defendants’ productions. (Id. at 10.) The Magistrate Judge concluded
that the scheduling order would need to be modified if the motion to compel were

granted, and the Moving DAPs failed to show good cause to modify the scheduling order
as required by Federal Rule of Civil Procedure 16(b)(4). (Id. at 10–11.)

III. PROCEDURAL HISTORY
The Moving DAPs filed this timely objection to the Magistrate Judge’s Order
pursuant to Local Rule 72.2. (Objs. Magistrate Judge Order, Nov. 30, 2022, Docket No.
1650.) They contend that the Order contains findings that are clearly erroneous and
contrary to law. (Id. at 1.) Specifically, the Moving DAPs argue that the Magistrate Judge

wrongly concluded that their motion was untimely. (Id. at 2.) They further assert that
some Defendants did not satisfy their burden to show that the discovery request was
unreasonably and disproportionately burdensome and Moving DAPs do not already have

access to the data. (Id. at 5, 8.) Moving DAPs also believe the Magistrate Judge erred in
failing to discuss a similar order from the In re Broiler Chickens Antitrust Litigation case.
(Id. at 7.) Defendants oppose the Moving DAPs’ objections. (Defs.’ Response Objs., Dec.
14, 2022, Docket No. 1679.)

DISCUSSION
I. STANDARD OF REVIEW
“The standard of review applicable to an appeal of a Magistrate Judge’s order on
nondispositive pretrial matters is extremely deferential.” Skukh v. Seagate Tech., LLC, 295
F.R.D. 228, 235 (D. Minn. 2013); Roble v. Celestica Corp., 627 F. Supp. 2d 1008, 1014 (D.
Minn. 2007). Reversal is only appropriate if the order is “clearly erroneous or contrary to

law.” 28 U.S.C. § 636(b)(1)(A); see also Fed. R. Civ. P. 72(a); D. Minn. LR 72.2(a)(3). For an
order to be clearly erroneous, the district court must be “left with the definite and firm
conviction that a mistake has been committed.” Lisdahl v. Mayo Found., 633 F.3d 712,
717 (8th Cir. 2011) (internal citations omitted). “[T]he district court has inherent power to

review the final decision of its magistrates.” Bruno v. Hamilton, 521 F.2d 114, 116 (8th Cir.
1975).
II. ANALYSIS
A. Timeliness

The Magistrate Judge’s finding that the motion was untimely was not clearly
erroneous or contrary to law. The deadline for parties to substantially complete
document and structured data productions was September 1, 2021,5 with final document
production wrapping up in December 2021. Defendant Smithfield emailed the DAPs

discovery materials in March 2021, and the correspondence clearly indicates the
requested data would be excluded from the structured sales data production. (Resp. Opp.
Mot. Compel, Ex. 14, at 4, Sept. 29, 2022, Docket No. 1522-14.) Defendant Smithfield

5 Though the Moving DAPs argue that this deadline only applied to the Defendants, the
pretrial scheduling order suggests it applies to all parties. (Order on Stipulation Regarding Pretrial
Scheduling Order, Nov. 12, 2020, Docket No. 532.)
sent similar correspondence in April 2021. (Resp. Opp. Mot. Compel, Ex. 15, at 4, Sept.
29, 2022, Docket No. 1522-15.)

Accordingly, the DAPs had notice that Defendants would not produce the
requested sales data well before the September 1, 2021 deadline for substantial structure
data production, let alone the December 1, 2021 deadline for additional structured data
production. Nevertheless, the Moving DAPs waited until September 2022—just a couple

of weeks before the close of fact discovery—to file their motion to compel. Though the
motion to compel was filed before the deadline for filing nondispositive motions, the
Magistrate Judge’s finding that this was nevertheless untimely was not clearly erroneous.

Further, the Magistrate Judge’s finding that the motion was untimely was also not
contrary to law. Federal Rule of Civil Procedure 16(b)(4) requires good cause and the
judge’s consent to modify a schedule. Fed. R. Civ. P. 16(b)(4). “The primary measure of
good cause is the movant’s diligence in attempting to meet the order’s requirements.”

Sherman v. Winco Fireworks, Inc., 532 F.3d 709, 716 (8th Cir. 2008) (internal citations
omitted). Although the good cause analysis emphasizes diligence, “there is not a clear
test for when a party is not diligent enough to establish good cause[,]” and the district
court retains broad discretion. Shank v. Carleton Coll., 329 F.R.D. 610, 614 (D. Minn.

2019).
Here, the Magistrate Judge determined that the pretrial scheduling order may
need to be modified to accommodate the motion to compel because the deadlines for
discussions about and production of structured data would need to be extended. The
Moving DAPs failed to show good cause to amend the scheduling order to allow for

additional document production, and the record does not indicate that they were diligent
in bringing the motion to compel.6 Therefore, the Magistrate Judge did not err in finding
that the motion was untimely and denying it as such.7

B. Relevance and Proportionality
Likewise, the Magistrate Judge’s findings on relevance and proportionality are not
clearly erroneous or contrary to law. The Magistrate Judge believes that the sought data
may be “somewhat relevant” because some of the Moving DAPs purchased significant
quantities of such pork products. (Order at 11–12.) However, the Magistrate Judge

concluded that such relevance was outweighed by proportionality concerns. (Id. at 12-
13.)

6 Although the Moving DAPs argue that the pretrial scheduling order would not have
needed to be amended if the Defendants had agreed to the data production when the Moving
DAPs originally asked for it, the record indicates that they asked for the data in October 2021 and
Moving DAPs could have filed their motion to compel before the end of document production in
December 2021. (See Moving DAPs’ Ex. A at 16–18, Sept. 20, 2022, Docket No. 1496-1.)
However, they did not file the motion to compel until well after the December 2021 deadline for
document production. The pretrial scheduling order would likely to be amended to reopen
discussions on the requested data production.
7 The Moving DAPs also assert that the Magistrate Judge erred in relying on Ellingsworth
v. Vermeer Mfg. Co., 949 F.3d 1097, 1100 (8th Cir. 2020), for the contention that “[t]he primary
measure of good cause is the movant’s diligence in attempting to meet deadlines.” However,
even if Ellingsworth is not analogous to the present motion to compel, the Magistrate Judge’s
reliance on it is not dispositive here because the resulting Order is not contrary to law.
Federal Rule of Civil Procedure 26(b)(1) provides that parties may obtain evidence
if it is “proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1). “The parties and

the court have a collective responsibility to consider the proportionality of all discovery
and consider it in resolving discovery disputes.” Id., advisory committee’s notes to 2015
amendment. “A party claiming requests are unduly burdensome cannot make conclusory
allegations, but must provide some evidence regarding the time or expense

required.” Vallejo v. Amgen, Inc., 903 F.3d 733, 743 (8th Cir. 2018) (citation omitted). Rule
26 requires “a particular and specific demonstration of fact, as distinguished from
stereotyped and conclusory statements.” Gen. Dynamics Corp. v. Selb Mfg. Co., 481 F.2d

1204, 1212 (8th Cir. 1973) (citation omitted). The court may consider affidavits, other
forms of evidence, and common sense in conducting its analysis. Vallejo, 903 F.3d at 743-
44.
Here, the Moving DAPs admit that Defendants submitted two affidavits that

demonstrate the requested discovery is unduly burdensome, but they contend that the
Magistrate Judge nevertheless erred because Defendants JBS and Smithfield provided no
affidavits or other evidence specific to them. But the Magistrate Judge did not err in this
regard. Common sense suggests that if the discovery request is unduly burdensome to

some Defendants, it would likely also be burdensome to Defendants JBS and Smithfield.
See id. at 744 (finding that the district court did not err in ruling a discovery request
disproportionate, even though the party did not provide affidavits or other specific
evidence that the request was burdensome, because the court had sufficient information
to decide based on common sense). Given the large amount of discovery already

conducted in this case, and the two affidavits Defendants submitted in this matter, the
Magistrate Judge had sufficient information to make a decision.
Further, the Moving DAPs have failed to show that the Magistrate Judge
committed clear error in his consideration of the parties’ relative access to the requested

data. The Magistrate Judge explained that “Moving DAPs are just as likely to have the
purchase records for the excluded products as Defendants are to have the sales records,”
which favors Defendants. (Order at 12.) The Moving DAPs contend that this was clear

error because, as they explained at the motion to compel hearing, they do not have as
robust of records as Defendants. However, this does not amount to clear error because
Moving DAPs have not explained why their data is insufficient.
In sum, the Magistrate Judge considered access to relevant information, burden

and expense of producing the relevant data, delay, party resources, and the amount in
controversy in determining that the discovery request was not proportional. The
Magistrate Judge’s resulting Order that the requested data is unduly burdensome is not
clearly erroneous or contrary to law.

C. Broiler Chickens’ Order
Lastly, the Magistrate Judge did not commit clear error in failing to address an
order from In re Broiler Chicken Antitrust Litigation, a case currently pending in the
Northern District of Illinois. The Magistrate Judge need not specifically address each and
every argument raised by a party. See generally United States v. Barron, 557 F.3d 866,
868 (8' Cir. 2009). The parties discussed Broilers in the motion to compel hearing, and
the Magistrate Judge took those arguments under advisement. (Tr. Mot. Hr’g 35:2-21,
37:24-25.) The Magistrate Judge did not commit clear error or act contrary to law in
failing to explicitly address the Broilers case in the Order.

CONCLUSION
Because the Magistrate Judge did not commit clear error or act contrary to law in
the denial of the Moving DAPs’ motion to compel, the Court will overrule their objection.

ORDER
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
HEREBY ORDERED that Moving DAPs’ Objections to the Magistrate Judge’s Order Dated
November 16, 2022 Denying Motion to Compel [Docket No. 1650] is OVERRULED.

DATED: January 3, 2023 dO hh. (eed
at Minneapolis, Minnesota. JOHN R. TUNHEIM
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10230251. Public record. Not legal advice.