FEDERAL TRADE COMMISSION et al v. SYSCO CORPORATION et al
MEMORANDUM OPINION AND ORDER re: 98 100 101 Motions for a Protective Order. Exhibit A, which accompanies this Memorandum Opinion and Order, shall be filed separately under seal. The FTC is directed to serve this Memorandum Opinion and Order, excluding Exhibit A, to the moving declarants. Signed by Judge Amit P. Mehta on 03/31/2015. (lcapm3)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Federal Trade Commission, et al.,
Sysco Corporation, et al.,
Civil No. 1:15-cv-00256 (APM)
MEMORANDUM OPINION AND ORDER
One of the key features of our civil justice system is that parties to a lawsuit are required
to exchange information relevant to their dispute before a trial. The reason for this practice is
relatively simple—resolving conflicts in a court of law is not a game of “blind man’s bluff,” but
“a fair contest with the basic issues and facts disclosed to the fullest practicable extent.”
United States v. Proctor & Gamble Co., 356 U.S. 677, 682-683 (1958). An open exchange of
information prevents trial by ambush. Each side must have the opportunity to fully present its case
and to test the other side’s evidence through cross-examination of witnesses and presentation of
contrary evidence. Such transparency also aids the judge or jury tasked with deciding a case. If the
parties are better informed, so too will be the judge or jury who bears the responsibility of deciding
which side will prevail.
The importance of transparency is heightened in cases in which the government seeks
to block or sanction private behavior. For any private actor, whether an individual or a large
corporation, to be named a defendant in a lawsuit brought by the government is no small matter.
The stakes in such lawsuits are often of great consequence. Money—sometimes vast amounts of
it—is on the line. So, too, are personal and institutional reputations. And then there is the
fundamental question at the heart of each such lawsuit: whether a private actor’s behavior violated
the law or, as in this case, whether its proposed behavior will exceed what the law allows. Because
the stakes are so high and the consequences so profound when the government is the plaintiff, the
rules that require a transparent exchange of information take on particular importance in promoting
and ensuring a fair process.
One of the key pieces of information that parties exchange in every case is the identity of
witnesses. In fact, the Federal Rules of Civil Procedure—the rules that apply to all civil lawsuits
filed in federal courts—require the parties to exchange “the name and, if known, the address and
telephone number of each individual likely to have discoverable information.” Fed. R. Civ. P.
26(a)(1)(A)(i). It was not always this way. “[T]he traditional view had been that a party could not
be required to disclose the names of its witnesses in order that there should be no opportunity to
tamper with them.” 8 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure
§ 2013 (3d ed. 2010). Today, however, the rule requiring the disclosure of witnesses is “based on
the principle that persons having knowledge of relevant facts are not necessarily the witnesses of
any particular party.” Id. (footnote omitted). Such disclosure serves two primary purposes.
First, it enables a party directly to interview or depose the witness or collect evidence from the
witness to test his or her statements. And, second, it allows a party to develop its own evidence
through available sources, such as its own employees, to rebut the witness’s statements. This tugof-war of obtaining witness testimony to support one side’s position, and the corresponding effort
by the opposing side to rebut that same witness, is foundational to our adversarial system.
The Motions for a Protective Order
It is against this backdrop that the court has considered the 24 motions for a protective
order that it received from various competitors and customers of Defendants Sysco Corp., USF
Holding Corp., and US Foods, Inc., who provided declarations to the Plaintiff Federal Trade
Commission (“FTC”) during its investigation. Before March 18, 2015, when the court issued its
Memorandum Opinion and Order (“March 18th Opinion”), the declarants’ identities were
available only to outside counsel and a limited number of in-house lawyers at each Defendant
company. ECF No. 92 at 1. In the March 18th Opinion, the court permitted Defendants to disclose
the declarants’ identities to their employees for the limited purpose of preparing their defense. Id.
at 2. The March 18th Opinion prohibited Defendants from disclosing to their employees a
declarant’s trade secrets, competitive intelligence or similar information designated as
“Confidential Material” under the Protective Order. Id.
Before Defendants could disclose declarants’ identities, the court permitted the declarants
to seek protective orders under Rule 26(c) to maintain the secrecy of their identities. Id. at 6. The
court initially allowed any declarant wishing to file a motion for protective order to do so within
24 hours of Defendants providing notice to the FTC of their intent to disclose a declarant’s identity.
Id. The court modified the 24-hour time period during a telephone conference on March 19, 2015,
after learning that Defendants had indicated their intent to disclose the identities of every declarant.
The court gave the FTC additional time to notify all of the declarants about the Defendants’
intention to disclose, and ordered the FTC to provide to Defendants by noon on March 20, 2015,
the names of any declarants who objected to disclosure. Minute Order, Mar. 19, 2015. The court
further ordered that any objecting declarant who wished to seek a protective order would have
until noon on March 24, 2015, to do so. Id. Recognizing that objecting declarants might have
difficulty retaining local counsel in such a short period of time, the court permitted the FTC to file
on the declarants’ behalf. Id.
On March 24, 2015, the court received requests for a protective order from 24 declarants.
ECF Nos. 98-101. The requests came in various forms—emails, letters, and formal pleadings.
Whatever their form, the court treats them all as “motions” under Rule 26(c). The motions were
properly filed under seal, because the declarants’ identities are not presently on the public record.
Consequently, the court will refer to declarants in this Memorandum as “Declarant A,” “Declarant
B,” etc., except for the declarant for Third-Party Intervener Shamrock Foods Company, who shall
be referred to as “Shamrock Foods Executive.” Filed under seal as Exhibit A to this Memorandum
is a list of the moving declarants, their respective letter designations, and the electronic docketing
numbers of their respective motions.
The declarants generally asked the court to deny Defendants’ employees access to their
identities. A few asked the court to modify the Protective Order to add certain procedural
safeguards to Defendants’ disclosure and use of a declarant’s name. See, e.g., ECF Nos. 100-11,
100-13, 101. Defendants opposed the motions, reiterating their need for disclosure of declarants’
identities and arguing that none of the declarants had met its burden to justify a protective order.
Defs.’ Opp’n, ECF No. 102.
The Applicable Standard
The court starts by reiterating what it said in its March 18th Opinion. The Federal Rules
of Civil Procedure were devised to provide for “liberal” pretrial discovery. Seattle Times Co. v.
Rhinehart, 467 U.S. 20, 34 (1984). The liberality of the Rules applies to discovery sought from
third parties, which as the Supreme Court observed in Seattle Times Co. “often allow[s] extensive
intrusion into the affairs of both litigants and third parties.” Id. at 30. However, a party’s right to
discovery from a third party is not without limits. Because “[l]iberal discovery is provided for the
sole purpose of assisting in the preparation and trial, or the settlement, of litigated disputes . . . it
is necessary for the trial court to have the authority to issue protective orders conferred by Rule
26(c).” Id. at 34.
Rule 26(c) allows a court for “good cause” to “issue an order to protect a party or person
from annoyance, embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P.
26(c)(1). Although Rule 26(c) does not speak explicitly to a person’s privacy rights or interests,
“such matters are implicit in the broad purpose and language of the Rule.” Seattle Times Co., 467
U.S. at 35, n. 21. A person seeking a protective order “must make a specific demonstration of
facts in support of the request as opposed to conclusory or speculative statements about the need
for a protective order and the harm which will be suffered without one.” Huthnance v. District of
Columbia, 255 F.R.D. 285, 296 (D.D.C. 2008) (emphasis added) (citation omitted) (internal
quotation marks omitted). “Accordingly, courts apply a balancing test, weighing the movant’s
proffer of harm against the adversary’s significant interest in preparing for trial.” Id. (citation
omitted) (internal quotation marks omitted). This test reflects the Rules’ preference for a liberal
exchange of information to settle disputes, except where a party is using the tools of discovery in
an abusive manner. See Seattle Times Co., 467 U.S. at 34-35.
The Customer Declarants
Eighteen of the 24 motions were filed by customers of either Sysco or US Foods
(collectively “Customer Declarants”). ECF Nos. 100-01-03, 100-05, 100-07-10, 100-12, 100-14,
100-15-22. Although each Customer Declarant expressed concerns unique to his or her own
circumstances, the prevailing theme among them was the fear that Defendants would retaliate
against them for providing information to the FTC. The Customer Declarants expressed worry
that, if their identities became known to Defendants’ employees, they would be subjected to
increased pricing,1 reduced service2 or a complete boycott of service.3
The court does not doubt that the declarants’ worries are genuinely held. But none of them
has provided a “specific demonstration of facts” that leads the court to conclude that the mere
possibility of retaliation outweighs the “significant interest” articulated by Defendants for
disclosure of their identities. Huthnance, 255 F.R.D. at 296. Some declarants made general
pronouncements about Defendants’ market power, but did not state specific facts showing that
Defendants are likely to engage in sharp-elbowed tactics.4 Others stated in conclusory fashion that
they would be targeted for retaliation.5 And others asked the court not to disclose their names
See, e.g., Declarants A & B (“Declarants are concerned . . . that Defendants can retaliate against them by
discriminating against them in price and services.”); Declarant N (“If my identity is disclosed, I am very concerned
that US Foods will retaliate with higher pricing.”); Declarant P (expressing concern over “revenge price-hiking” or
“orders show[ing] up late, or incomplete, or not at all”); Declarant R (“[Declarant R] believe[s] that [it] will pay
significantly more in food costs if Sysco and/or US FOODS Sales Representatives knew of [its executive’s] identity
and participation in the FTC’s investigation.”);
See, e.g., Declarant H (“There is a very strong possibility that a merged Sysco/USF company will retaliate against
my organization by increased pricing, reduction in service, or both.”); Declarant J (“The fear of retaliation could lead
to poor service, no interest in my compan[y’s] individual needs, and out of stock items, and of course unfavorable
pricing.”); Declarant V (“My fear stems from the potential retaliation by the distributor in terms of pricing and product
delivery and availability.”).
See, e.g., Declarant C (“It is clear and unquestionable that when any US Foods or Sysco employees learn of my
testimony, my associates and I will immediately be blacklisted.”); Declarant L (“I could be financially burdened
because someone who has nothing to do with this merger can decide to boycott my business.”).
See, e.g., Declarants A & B (“Defendants are their only practical sources for broadline foodservice distribution” and
“have considerable market power”); Declarant N (“US Foods and Sysco wield significant power over my business.”);
Declarant P (stating there is “already [a] small pool of foodservice purveyors” in his market and he “must assume that
[Defendants] would use every method at their disposal to ‘change the minds’ of anti-merger declarants”); Declarant
T (“With the only two broad line distributors available for Declarant’s business operations proposing to merge,
Declarant’s business is at particular risk of retaliation and other potential economic harm.”).
See, e.g., Declarant C (“It is clear and unquestionable that when any US Foods or Sysco employees learn of my
testimony, my associates and I will immediately be blacklisted.”); Declarant E (“I feel that there is a much greater
likelihood of us experiencing adverse repercussions by our current broad line distributor . . . if this information was
received by them.”); Declarant G (“I feel like the potential for prejudice against me, my business and even my business
partners is significantly magnified.”); Declarant H (stating that there “is a very strong possibility that a merged
Sysco/USF company will retaliate against my organization”); Declarant I (stating that disclosure “could lead to
disruption in business relations”); Declarant J (“My fears are that I can be easily dismissed as just one more little guy
that will not matter to a larger merged company.”); Declarant O (“I believe that our price structure with these
companies could be in jeopardy if my identity was known.”); Declarant R (stating that retaliation is not “speculative,
but real, and would be felt immediately and with potentially disastrous consequences” without offering specific facts
to suggest that such retaliation would occur); Declarant S (“Disclosure of this information to Sysco and USF may
simply because they wished to remain confidential.6 Only one customer provided any concrete
facts to support his claim that he would be targeted for retaliation, citing a conversation with a
Sysco employee who told him that, if the entities merged, “the only name that would be honored
would be Sysco’s.”7 This statement is far too ambiguous to be interpreted as a threat of retaliation
or some other improper use of market power.
The court disagrees with those Customer Declarants who argued that Defendants have not
articulated a need to disclose their identities to Defendants’ employees.8 Many of the Customer
Declarants have expressed the view that a merged Sysco-US Foods entity would concentrate too
much market power in the hands of one company. Those views are premised on the declarants’
first-hand experiences with Defendants and their employees. Defendants have the right to rebut
those assertions. One way they can do so is to ask their own employees, who know these
declarants, their businesses, and their markets, about the accuracy or reliability of the Customer
Declarants’ statements. Depending on what they learn, Defendants may choose to offer their
employees’ testimony or declarations to refute the Customer Declarants or some other form of
evidence. Defendants thus have articulated a “significant interest” in testing the Customer
Declarants’ statements that outweighs the Customer Declarants’ stated concerns.
The Competitor Declarants
The court’s conclusion with respect to the five competitor declarants (collectively
“Competitor Declarants”)—excluding the Shamrock Foods Executive, whose request is addressed
cause Sysco and/or USF to provide less competitive bids or even elect to not participate.”); Declarant U (“US Foods
may decide to alter the rebate program we currently take part in”).
See, e.g., Declarant Q (“I do not want my information nor information about my business made public.”).
See, e.g., Declarant E (I “do not feel that the information garnered from individual businesses such as mine is very
useful in determining a fair decision on the proper merger plans”); Declarant G (stating that “there does not appear to
be any real reason for” disclosure of declarant’s identity); Declarant H (“My anonymity does not hinder the Sysco/USF
below—is the same. Some of the Competitor Declarants’ motions focused primarily on the impact
of disclosing their confidential business information, which is not at issue here.9
hypothesized about the harm that would occur if their identities were disclosed, but did not offer a
specific demonstration of facts to support their concerns.10 Again, the court does not doubt the
sincerity of the Competitor Declarants’ beliefs. But the court will not issue a protective order
without a factual showing.
In denying the Customer and Competitor Declarants’ motions, the court pauses to reemphasize its previous ruling that the disclosure of a declarant’s name to a Defendants’ employee
does not open the door to divulging to Defendants’ employees what has been declared
“Confidential Material” under the Protective Order. Confidential trade secrets, competitive
intelligence or other such proprietary information contained in the declarations is accessible only
to Defendants’ outside counsel and two designated in-house lawyers for each Defendant.
The Shamrock Foods Executive
The Shamrock Foods Executive seeks a protective order for a different reason—
“[d]isclosure of the name and/or identity of the Shamrock Declarant will inevitably jeopardize the
Shamrock Declarant’s future employment prospects and opportunities for advancement in both the
broadline foodservice distribution and foodservice supplier industries.” ECF No. 98 at 3. The
problem with issuing a protective order on that basis is that the Shamrock Foods Executive is “not
currently seeking employment elsewhere” but only “anticipate[s] that in the future [he or she] may
Declarant F (“Such disclosure would also create a substantial risk of inadvertent disclosure and use by Defendants
and others of [declarant’s] confidential, non-public, and competitively sensitive operational business information.”);
Declarant K (“There is no need for employees to have access to the Declarations themselves . . .”).
See, e.g., Declarant D (stating there were “numerous ways” in which Defendants might retaliate or cause harm, but
not identifying any supporting facts); Declarant M (stating in conclusory fashion that “the various employees of
Defendants will misuse this role and target [declarants] in the marketplace”); Declarant W (stating Defendants could
“‘send a message’ or otherwise penalize [declarant] for cooperating with the FTC” without supporting facts).
choose or need to do so.” ECF No. 99-2 ¶ 7. The court declines to enter a protective order where
the stated concern about the disclosure’s impact is so remote and uncertain.
Assurances of Confidentiality
Some of the Customer and Competitor declarants argued that the FTC provided them with
assurances that their identities would remain confidential and, for that reason, their names should
not be revealed to Defendants’ employees.11 The court is unaware of what precisely the FTC
represented to the various declarants about confidentiality. Whatever was said, the FTC could not
have assured anonymity once it decided to file this suit to block Defendants’ proposed merger.
When the FTC concluded its investigation and filed this lawsuit, the decision whether to disclose
declarants’ identities shifted from the FTC to the court. The factors the court must weigh, as
discussed, are different from those present during an agency’s investigation. The court has been
guided by those factors here, and not by assurances that the agency might have given to declarants
during its investigation.
Modification of the Protective Order
Competitor Declarants K, M, and W have asked the Court to modify the Protective Order
to place additional requirements on disclosing their identities to Defendants’ employees.12 The
court has considered those requests.
The court, however, declines to limit the number of
See, e.g., Declarants A & B (stating they “gave information to the FTC with the understanding that the identities of
the sources of the information would remain confidential”); Declarant H (stating that he had a “strong expectation of
confidentiality, not a guarantee, which I made my declaration to the FTC”); Declarant R (stating that non-disclosure
was a “condition precedent to signing the declaration in support of the FTC’s investigation”).
See Declarant K (requesting that a limit be placed on the number of Defendants’ employees to whom disclosure can
be made and that those employees be identified to the court); Declarant M (requesting that Defendants disclose the
names of their employees who receive access to declarant’s identity and that the employees be subject to “the contempt
burdens of the Protective Order”); Declarant W (requesting that Defendants disclose the names of their employees
who receive access to declarant’s identity and that the employees sign a confidentiality agreement that specifies
penalties for breach).
employees to whom disclosure can be made; nor will the court compel Defendants to disclose its
employees’ names to the declarant or to the court.
The court also will not require Defendants’ employees to sign a confidentiality agreement.
Under the Protective Order, as modified by the March 18th Opinion, defense counsel is required
to instruct any employee to whom disclosure of a declarant’s identity is made that “(1) the
disclosure is for the limited purpose of preparing the defense and (2) the submitter’s identity and
the fact that the submitter provided evidence in the investigation shall not be further disclosed or
used for any purpose other than aiding counsel.” March 18th Opinion at 6. The court added this
requirement to the Protective Order to emphasize the limited nature of the disclosure and to protect
declarants’ interests. The request that Defendants’ employees sign a confidentiality agreement
would serve the same purposes and therefore is unnecessary.
Conclusion and Order
For the reasons stated herein, the declarants’ motions for a protective order are denied.
The declarants’ identities shall remain non-public, unless and until the court orders their disclosure.
Dated: March 31, 2015
Amit P. Mehta
United States District Judge
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