In Re Matter of Deposition Subpoena Served on Evan Rainwater
Filing
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MEMORANDUM DECISION AND ORDER - IT IS HEREBY ORDERED that Non-Party Witness Evan Rainwaters Motion to Quash Deposition Subpoena (Docket No. 1 ) is DENIED. In the event the deposition proceeds, its terms, including duration, shall be governed by wh atever discovery limits otherwise apply in the underlying lawsuit, and applicable federal rules. Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)
UNITED STATES DISTRICT COURT
DISTRICT OF IDAHO
In re Matter of Deposition Subpoena Served on
Evan Rainwater
Case No.: 1:18-MC-10051-EJL
MEMORANDUM DECISION AND
ORDER RE: MOTION TO QUASH
DEPOSITION SUBPOENA
(Docket No. 1)
Pending before the Court is Evan Rainwater’s Motion to Quash Deposition Subpoena
(Docket No. 1). This Motion has been referred to the undersigned for decision by the Honorable
Edward J. Lodge. Having carefully considered the record, participated in oral argument, and
otherwise being fully advised, the Court enters the following Memorandum Decision and Order:
BACKGROUND
Winn-Dixie sued the Defendants (dairy cooperatives and a federation of dairy
cooperatives) in the United States District Court for the Middle District of Florida for their
alleged violation of the Sherman Act. Winn-Dixie claims that Defendants inflated the price of
raw milk by operating a program – the Herd Retirement Program (the “HRP”) – that subsidized
the sale of dairy herds into the beef market between 2003 and 2010, a step which reduced the
number of milk cows and therefore also reduced the amount of raw milk. Winn-Dixie alleges
damages from having to pay higher negotiated premiums for raw milk than it would have paid
absent the HRP. In response, Defendants assert that the HRP was widely publicized within the
dairy industry and the general public throughout its existence. Winn-Dixie disputes this, denying
that its employees were ever aware of the HRP.
To help substantiate their defenses, Defendants issued a subpoena (to give testimony and
produce documents) to Evan Rainwater. Mr. Rainwater currently resides in Idaho, where he
MEMORANDUM DECISION AND ORDER - 1
works in upper management for Albertsons, Inc.1 However, he was Winn-Dixie’s Vice President
of Manufacturing from 2002 through 2005 and, according to Defendants, was responsible for
Winn-Dixie’s raw milk purchases that form the basis of a significant portion of the $21 million
damages (potentially trebled) that Winn-Dixie seeks from Defendants.
Mr. Rainwater says he knows nothing of relevance about the facts underlying the lawsuit,
and has provided a sworn declaration stating that he did not have discussions with any raw milk
supplier regarding raw milk prices; did not negotiate prices of raw milk, nor any agreements for
the supply of raw milk; and had never heard of the HRP before receiving the subpoena. Mr.
Rainwater therefore believes that he should not have to appear for a deposition in such
circumstances and has moved to quash Defendants’ subpoena accordingly. He argues that (1) he
has no information relevant to the underlying lawsuit and sitting for the deposition would cause
an undue burden on him, and (2) Defendants failed to comply with the Middle District of
Florida’s Handbook on Civil Discovery Practice (the “Handbook”) when seeking to depose Mr.
Rainwater.
Defendants counter that they are entitled to probe Mr. Rainwater’s knowledge (or
claimed lack of knowledge) in light of the HRP’s alleged well-documented history,2 particularly
given an alleged implausibly small production of documents by Winn-Dixie from the period Mr.
Rainwater was employed there. Defendants also argue that the Handbook is neither binding in
Mr. Rainwater is currently the Senior Vice President and General Manager of
Manufacturing for Albertsons, Inc. (“Albertsons”), located in Boise, Idaho.
1
Defendants have raised numerous affirmative defenses, including that Winn-Dixie’s
claims are barred by applicable statutes of limitation because Winn-Dixie knew or should have
known about the HRP. Defendants also assert that, to the extent that Winn-Dixie has alleged
facts based on fraudulent concealment, it could not establish the elements of that claim.
Defendants believe that Mr. Rainwater has direct knowledge, or knowledge that is likely to lead
to the discovery of admissible evidence, about facts that would assist Defendants in establishing
these affirmative defenses.
2
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Florida, nor even applicable to subpoenas issued in Idaho, but that its requirements were
nonetheless satisfied after Defendants supplied specific reasons for Mr. Rainwater’s deposition
in writing.
ANALYSIS
Federal Rule of Civil Procedure 45 governs discovery of non-parties by subpoena,
providing, among other things, that a party may command a non-party to testify at a deposition
and produce designated documents. See Fed. R. Civ. P. 45(a)(1)(A)(iii). The scope of discovery
through a Rule 45 subpoena is the same as the scope of discovery permitted under Rule 26(b).3
See Beaver Cty. Employers Ret. Fund v. Tile Shop Holdings, Inc., 2016 WL 3162218, at *2
(N.D. 2016) (citing Fed. R. Civ. P. 45 Advisory Comm.’s Note (1970)). With this in mind, Rule
45 states that a Court must quash or modify a subpoena that “subjects a person to undue burden.”
Fed. R. Civ. P. 45(d)(3)(A)(iv).
“The Ninth Circuit has long held that non-parties subject to discovery requests deserve
extra protection from the courts.” Lemberg Law LLC v. Hussin, 2016 WL 3231300, at *5 (N.D.
Cal. 2016); see also United States v. C.B.S., Inc., 666 F.2d 364, 371-72 (9th Cir. 1982) (“Non-
3
Rule 26(b) provides that:
Unless otherwise limited by court order, the scope of discovery is as follows:
Parties may obtain discovery regarding any nonprivileged matter that is relevant to
any party’s claim or defenses and proportional to the needs of the case, considering
the importance of the issues at stake in the action, the amount in controversy, the
parties’ relative access to relevant information, the parties’ resources, the
importance of the discovery in resolving the issues, and whether the burden or
expense of the proposed discovery outweighs its likely benefit. Information within
this scope of discovery need not be admissible in evidence to be discoverable. . . .
On motion or on its own, the court must limit the frequency or extent of discovery
otherwise allowed by these rules or by local rule if it determines that . . . the
proposed discovery is outside the scope permitted by Rule 26(b)(1).
Fed. R. Civ. P. 26(b)(1), (b)(2)(C)(iii).
MEMORANDUM DECISION AND ORDER - 3
party witnesses are powerless to control the scope of litigation and discovery, and should not be
forced to subsidize an unreasonable share of the costs of a litigation to which they are not a
party.”). Courts in the Ninth Circuit – including this Court – have consequently held that, on a
motion to quash a subpoena, the moving party has the burden of persuasion, but that the party
issuing the subpoena must demonstrate that the discovery sought is relevant and material to the
allegations and claims at issue in the proceedings. See Rocky Mountain Med. Mgmt., LLC v.
LHP Hosp. Group, Inc., 2013 WL 6446704, at *3 (D. Idaho 2013) (citations omitted). “In all
controverted cases, it is up to the court to strike a balance among the degree of relevance of the
requested material, the severity of the burden on the subpoenaed person or entity, and the utility
of the protective mechanisms provided by the Federal Rules.” Id. (citing 9A Fed. Prac. & Proc.
Civ. § 2459 (3d ed. 2013)). Against this standard, for the reasons discussed below, Mr.
Rainwater’s arguments in favor of quashing Defendants’ subpoena are not persuasive and, thus,
his Motion to Quash Deposition Subpoena is denied.
First, the information sought from Mr. Rainwater is unquestionably relevant in the
context of the parties’ claims and defenses in the underlying lawsuit. From 2002 to 2005, Mr.
Rainwater oversaw Winn-Dixie’s raw milk procurement and, because the underlying lawsuit
involves Winn-Dixie’s purchase of raw milk at higher prices during this time (allegedly because
of the HRP administered by Defendants), it cannot be said that Mr. Rainwater’s deposition
amounts to an idle exercise. In short, the information Defendants seek via Mr. Rainwater’s
deposition is relevant. That Mr. Rainwater may not remember the particulars of Winn-Dixie’s
raw milk purchases generally or the existence of the HRP specifically,4 does not change the fact
It is worth mentioning that, within his declaration, Mr. Rainwater states that “[his]
knowledge relating to [the] subject matter of the [underlying lawsuit] is very limited.” Rainwater
Decl., ¶ 3 (Docket No. 1-4) (emphasis added). Mr. Rainwater understandably does not disclaim
all knowledge (how could he, really?) relating to the underlying lawsuit and, as a result,
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that the information sought from him remains relevant and material to the parties’ respective
positions.5
Second, there is no dispute that submitting to a deposition, party or non-party, is
burdensome on several levels – especially here, with Mr. Rainwater now an executive at
Albertsons. But a burden alone is not enough to quash a subpoena; instead, Rule 45 requires that
the burden be “undue” before a court must quash or modify a subpoena. See supra; see also U.S.
v. $160,066.98 from Bank of Am., 202 F.R.D. 624, 628 (9th Cir. 2001) (“‘Undue’ burden requires
parties to show more than expense or difficulty.”). Here, the Court is satisfied that there is no
intent on Defendants’ part to harass or purposely inconvenience Mr. Rainwater by deposing him.
To be sure, they are willing to conduct Mr. Rainwater’s deposition in Idaho and, keeping in mind
his work schedule, conduct the deposition at a time that is convenient to him. See 2/19/18 Ltr.
from Defs.’ Counsel to Rainwater, attached as Ex. 1 to Mem. in Supp. of Mot. to Quash (Docket
No. 1-2) (“On behalf of the Defendants in the [underlying lawsuit], we look forward to working
cooperatively with you and your counsel on matters of convenience, including finding a mutually
agreeable date for your deposition if you are not available on the date we included in your
subpoena.”). Thus, though a burden in the sense that any deposition represents an inconvenience
to a busy professional, its severity in this instance does not rise to the level of being undue.
Simply put, there is no indication that, by preparing for and attending his deposition, Mr.
Rainwater cannot still tend to his current responsibilities at Albertsons – particularly if the
Defendants are permitted to explore the boundaries of that knowledge – even if limited.
Moreover, on this record, it may be the case that, even if true, Mr. Rainwater’s complete lack of
knowledge remains pertinent to Defendants’ defenses to Winn-Dixie’s claims, and Defendants
are entitled to obtain such evidence, particularly when the witness otherwise is not subject to
being summoned to the Florida federal court for trial.
Otherwise, an individual could avoid being deposed simply by stating that he has no
knowledge about the subject-matter of the at-issue litigation. The Court will not go there.
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deposition is more form than substance (and, hence, limited in scope and duration), owing to Mr.
Rainwater’s claimed lack of knowledge about the underlying lawsuit.
Third, while it is true that Mr. Rainwater is a non-party witness to the underlying lawsuit,
he was an integral employee with a former employer, Winn-Dixie, which is now pursuing multimillion-dollar claims against Defendants that relate, at least in organizational structure, to Mr.
Rainwater’s duties while at Winn-Dixie. So, it would seem that Mr. Rainwater’s technical status
as a non-party witness is therefore a “horse of a different color” when compared to those cases
involving non-party witnesses whose conduct does not directly contribute to the issues at play.
See, e.g., Rocky Mountain, 2013 WL 6446704 (D. Idaho 2013) (non-party surgical center that
defendants believed plaintiffs accused them of unlawfully delaying vis à vis plaintiffs’
interference with prospective economic advantage claim). As such, any “special weight”
accorded to non-parties in those more-removed circumstances does not neatly or fully apply
here.6
Fourth, Defendants’ efforts before subpoenaing Mr. Rainwater are notable. That is, up
until that point, Winn-Dixie had produced only 120 documents which, according to Defendants,
“contain[ed] largely irrelevant information” and “le[ft] many unanswered questions with respect
to the background facts that date back to a critical window of time during which Mr. Rainwater
was a Vice President at Winn-Dixie.” Opp. to Mot. to Quash, pp. 5-6 (Docket No. 2). Further,
the record reflects that Winn-Dixie has not identified (either by Rule 30(b)(6) designations, Rule
26(a)(1) disclosures, or within its written discovery responses to date) individuals with personal
This reality also highlights the inconsequence of the passage of time since Mr.
Rainwater was with Winn-Dixie. That is to say that Mr. Rainwater’s particular knowledge of
Winn-Dixie’s milk procurement practices during the relevant time frame exists whether he is still
employed with Winn-Dixie or not, and also exists independent of the amount of time that may
have lapsed between then and now.
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knowledge of the facts underlying Winn Dixie’s allegations or, likewise, information germane to
Defendants’ defenses – including information relating to the topics on which Defendants seek to
question Mr. Rainwater. With this backdrop, Defendants are permitted to proceed with Mr.
Rainwater’s deposition to learn more. If Mr. Rainwater doesn’t have any knowledge on these
subjects, who does?7
Finally, without addressing whether the Handbook guidelines even extend to subpoenas
issued in an Idaho federal court, those guidelines do not preclude Mr. Rainwater’s deposition in
any event. Winn-Dixie attempts to shoehorn certain provisions making mention of “an officer,
director, or managing agent of any entity,” as well as “an organization’s senior management,”8
In his declaration, Mr. Rainwater identified Dwight Moore as the person who would
know the most about Winn-Dixie’s milk purchasing. See Rainwater Decl., ¶ 3 (Docket No. 1-4)
(“To the extent that anyone at Winn-Dixie may have had any such discussions, it would have
been Dwight Moore, Director of Dairy Operations, who reported to me.”). Winn-Dixie never
previously disclosed Mr. Moore as someone with knowledge of the facts leading up the
underlying lawsuit. In this setting, and consistent with Rule 26, Defendants are now entitled to
depose Mr. Rainwater on who else within Winn-Dixie has knowledge, in addition to deposing
him about the direct relevant information he has relating to the parties’ claims and defenses.
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8
In relevant part, the Handbook reads:
5.
If an Officer Lacks Knowledge. Whenever an officer, director, or
managing agent of an entity is served with a deposition notice or subpoena
that contemplates testimony on a subject about which the witness lacks
knowledge or information, that individual may submit to the noticing party,
reasonably before the date noticed for the deposition, an affidavit or
declaration under penalty of perjury so stating and identifying a person
within the entity, if any, having knowledge of the subject matter. The
noticing party should then proceed with the deposition of the officer,
director, or managing agent initially noticed or subpoenaed only after
careful consideration and for a specific reason, provided to the deponent in
writing in advance of the deposition.
6.
Consideration for an Organization’s Senior Management: If information is
sought from an organization, counsel ordinarily should not seek in the first
instance to take the deposition of the organization’s senior management if
someone else in the organization can be expected to have more direct and
firsthand knowledge or information. Depositions are not properly used as
MEMORANDUM DECISION AND ORDER - 7
into its arguments in favor of quashing Mr. Rainwater’s subpoena. However, Mr. Rainwater
cannot claim protection under these provisions because he is no longer at Winn-Dixie. See
Handbook, ¶ II(A)(6), attached as Ex. 2 to Mem. in Supp. of Mot. to Quash (Docket No. 1-3)
(purpose of provisions is to prevent lawsuit from “distract[ing] senior management who may not
be immediately involved in the dispute”). Regardless, in addition to Winn-Dixie not identifying
individuals with knowledge of its claims (see supra), Defendants have satisfied the requirement
to provide in writing a specific reason for Mr. Rainwater’s deposition, stating:
Defendants have reviewed and carefully considered Mr. Rainwater’s declaration.
Notwithstanding his declaration, we intend to depose Mr. Rainwater pursuant to the
subpoena we served on him. Mr. Rainwater was Vice President of Manufacturing
at Winn-Dixie Stores, Inc. from 2002 through 2005, which is part of the relevant
time period of plaintiff’s complaint. As Vice President of Manufacturing, Mr.
Rainwater was responsible for overseeing raw milk purchasing for Winn-Dixie,
among other things, which relate directly to the subject matter of this case. Indeed,
Winn-Dixie’s raw milk purchases account for a significant portion of plaintiffs’
claimed damages. While Mr. Rainwater states in his declaration that his knowledge
related to the subject matter of this case is “very limited,” he does not and cannot
disclaim all knowledge. Defendants are entitled to probe the extent of his
knowledge of the issues in this case, and to question him about all matters related
to plaintiffs’ claims and defendants’ defenses.
3/12/18 email from Defs.’ Counsel to Winn-Dixie’s Counsel, attached as Ex. 5 to Mem. in Supp.
of Mot. to Quash (Docket No. 1-6). The Court is satisfied that the “specific reason” provided by
Defendants to the Plaintiff is legitimately raised. Accordingly, the Handbook’s provisions
cannot prevent Mr. Rainwater’s deposition from taking place.
///
///
a mechanism to inconvenience or distract senior management who may not
be immediately involved in the dispute.
Handbook, ¶¶ II(A)(5-6), attached as Ex. 2 to Mem. in Supp. of Mot. to Quash (Docket No. 1-3)
(emphasis added).
MEMORANDUM DECISION AND ORDER - 8
ORDER
Based on the foregoing, IT IS HEREBY ORDERED that Non-Party Witness Evan
Rainwater’s Motion to Quash Deposition Subpoena (Docket No. 1) is DENIED. In the event the
deposition proceeds, its terms, including duration, shall be governed by whatever discovery
limits otherwise apply in the underlying lawsuit, and applicable federal rules.9
DATED: May 4, 2018
_________________________
Ronald E. Bush
Chief U.S. Magistrate Judge
The Court notes that the Handbook guidelines follow Rule 30(d)(1) and limit a
deposition “to one day of seven hours unless otherwise authorized by the Court or stipulated by
the parties” and that “[t]his is generally interpreted to mean seven hours of actual testimony, and
does not include time spent for meals, rest, or refreshment.” Handbook, ¶ II(A)(1), attached as
Ex. 2 to Mem. in Supp. of Mot. to Quash (Docket No. 1-3).
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