Brigiotta's Farmland Produce and Garden Center, Inc. v. United Potato Growers of Idaho, Inc. et al

Filing 476

ORDER REGARDING DEPOSITION PROTOCOL. Signed by Judge B. Lynn Winmill. Associated Cases: 4:10-md-02186-BLW-CWD, 4:10-cv-00307-BLW-CWD, 4:13-cv-00251-BLW-CWD(caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

IN RE: FRESH AND PROCESS
POTATOES ANTITRUST
LITIGATION

Case No. 4:10-MD-2186-BLW
ORDER REGARDING
DEPOSITION PROTOCOL

THIS DOCUMENT RELATES TO:
ALL ACTIONS

IT IS HEREBY ORDERED:
I.

NUMBER OF DEPOSITIONS
A.

Direct Purchaser Plaintiffs, Indirect Purchaser Plaintiffs, and Associated

Wholesale Grocers (“AWG”) (collectively “Plaintiffs”) collectively may depose no more
than 80 percipient witnesses who are current employees of all Defendants, including no
more than seven (7) percipient witnesses who are current employees of any single
defendant group, as part of the joint, coordinated discovery in this case. Defendants shall
produce for deposition the specific percipient witnesses employed by them. Defendants
may collectively depose each natural person named plaintiff or class representative and a
maximum of seven (7) percipient witnesses of each Direct Purchaser Plaintiff and of
AWG. The following shall be considered a single corporate entity for purposes of this
protocol: the Wada Group (Albert Wada, Wada Farms, Inc., Wada Farms Potatoes, Inc.,

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Wada Farms Marketing Group, LLC, Wada-Van Orden Potatoes, Inc. , Cedar Farms,
Inc., Wada Family, LLC, and ProFresh, LLC), the Cornelison Group (Cornelison Farms,
Inc. and Keith Cornelison), and the Wahlen Group (KCW Farms, Inc. and Kim Wahlen
d/b/a Kim Wahlen Farms).
B.

Plaintiffs collectively may take up to 14 hours of Rule 30(b)(6) depositions

of each Non-Cooperative Defendant and up to 18 hours of Rule 30(b)(6) depositions of
each Cooperative Defendant, specifically United Potato Growers of Idaho, Inc., United
Potato Growers of America, Inc., and United II Potato Growers of Idaho, Inc., as part of
the joint, coordinated discovery. In addition, Indirect Purchaser Plaintiffs may seek leave
of the Court to take Rule 30(b)(6) depositions of up to six (6) Defendants of Indirect
purchaser Plaintiffs’ choice regarding downstream issues. Each deposition shall be
limited to 3½ hours. Defendants identified in Indirect Purchaser Plaintiffs’ request shall
be entitled to file a response within five (5) business days. Indirect Purchaser Plaintiffs’
request for leave shall identify the Defendants they seek to depose, the basis for wanting
to depose the particular Defendants on downstream issues, the specific subject areas for
the deposition, potential individuals with knowledge of the subject matter, and any other
facts to assist the Court in determining whether there is a reasonable basis to allow the
depositions to proceed. Defendants collectively may take up to 14 hours of Rule 30(b)(6)
depositions of each Direct Purchaser Plaintiff and of AWG. The parties shall meet and
confer about scheduling of Rule 30(b)(6) depositions in accordance with Section IV
below.

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C.

This protocol does not apply to depositions of experts or depositions of

records custodians regarding authentication of documents.
D.

In connection with Defendant Potandon Produce L.L.C.’s (“Potandon”)

counter-claim against AWG, Potandon may depose a maximum of three (3) additional
percipient witnesses of AWG, and may take up to 3.5 hours of additional Rule 30(b)(6)
depositions of AWG. Similarly, in connection with Potandon’s counter-claim, AWG
may depose a maximum of three (3) additional percipient witnesses of Potandon, and
may take up to 3.5 hours of additional Rule 30(b)(6) depositions of Potandon.
E.

The above limitations on the number of depositions are presumptive only.

The purpose of these presumptive limits is to encourage the judicious use of depositions,
not to arbitrarily restrict access to evidence. The number of depositions permitted in this
litigation may be expanded by stipulation, or for good cause, upon motion to the
Magistrate Judge or the Court.
F.

This order does not limit any party’s right to object to or seek a protective

order with respect to any deposition noticed in this case. In addition, the presumptive
number of depositions is without prejudice to any party seeking to expand or limit further
the number of depositions.
II.

DEPOSITION PROCEDURES
A.

All deposition limitations may be modified by the Magistrate Judge or the

Court for good cause or by agreement.

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B.

Absent the agreement of the parties or leave of the Court, (a) no more than

two depositions taken by Plaintiffs and two depositions taken by Defendants may be
scheduled on each day, and (b) no more than one witness for any particular party may be
scheduled each day. Absent consent of all parties and the witness, no depositions may be
scheduled on Saturdays, Sundays, November 28-29, 2013, December 24-26, 2013, or
January 1, 2014.
C.

Depositions jointly noticed by Plaintiffs or jointly noticed by Defendants

will be limited to 7 hours of direct examination, unless the parties otherwise agree, or the
Court issues an order based on a showing of good cause. In the event a party cross
notices a deposition first noticed by an opposing party, the deposition shall be scheduled
for an additional consecutive day of 7 hours allocated to all cross-movants of the crossnoticing side collectively, unless a different arrangement is agreed to by the parties in
advance or ordered by the Magistrate Judge or the Court for good cause. Counsel for a
witness or for the Defendant that is the witness’s current or past employer may examine
the witness for up to an addition hour at the conclusion of direct examination. If counsel
for the witness’s current or past employer conducts re-cross examination, then the
counsel who conducted the direct examination shall be entitled to rebuttal examination of
the witness for approximately the same amount of time as the re-cross examination.
D.

A witness may be deposed only once in these proceedings unless (i) a

witness properly revokes an earlier assertion of the Fifth Amendment, (ii) the parties
otherwise agree, or (iii) upon order of the Court or the Magistrate Judge based on a

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showing of good cause. AWG may seek leave of the Court to re-notice corporate
representative witnesses under Rule 30(b)(6) for deposition on topics related specifically
to AWG’s claims. Upon service of a subsequent notice of deposition under Rule
30(b)(6), the receiving party reserves its right to object to or seek a protective order of
AWG’s supplemental notice.
E.

Absent the agreement of the parties or leave of the Court, the deposition of

individuals whose depositions are being taken as both percipient witnesses and as
corporate representatives under Rule 30(b)(6) shall presumptively be taken on the same
date(s), if the recipient of a Rule 30(b)(6) notice provides the noticing party with the
name(s) of the individuals who are designated to testify on behalf of the corporation the
later of 30 days before the date(s) of the deposition or seven (7) business days after
receipt of the request for the deposition. Rule 30(b)(6) depositions solely on topics
concerning the completeness of a party’s document search and production or a party’s
transactional data shall not be subject to the presumption in this paragraph.
III.

ALLOCATION OF DEPOSITION TIME
A.

Time used by an examining party shall count against that side’s (i.e.,

Plaintiffs’ or Defendants’) deposition time, regardless of which party noticed the
deposition.
B.

As to all depositions noticed by Plaintiffs, Plaintiffs’ counsel shall confer

before the deposition to allocate examination time among any Plaintiffs’ counsel
intending to participate and ask questions at the deposition. Counsel for any Plaintiff

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objecting to the allocation of examination time among Plaintiffs shall be required to seek
relief from the Magistrate Judge by means of a teleconference hearing no later than seven
(7) days before the date of the deposition.
C.

As to all depositions noticed by Defendants, Defendants’ counsel shall

confer before the deposition to allocate examination time among any Defendants’ counsel
intending to participate and ask questions at the deposition. Counsel for any Defendant
objecting to the allocation of examination time among Defendants shall be required to
seek relief from the Magistrate Judge by means of a teleconference hearing no later than
seven (7) days before the date of the deposition.
D.

To the extent Plaintiffs or Defendants cross-notice a deposition, the time

needed to conduct any examination under such cross-noticed deposition shall not be
deducted from the time of the party who originally noticed the deposition.
IV.

SCHEDULING OF DEPOSITIONS
A.

Counsel will consult with one another to coordinate in good faith, to the

extent practicable, all scheduling, noticing and taking of depositions. Counsel shall not
unilaterally take steps to schedule and notice a deposition without consulting in advance
with counsel for the witness or the party that is the current or former employer of the
witness. Unless otherwise agreed by the parties, counsel for the witness or the party
employing the witness may respond to a written request for deposition within five (5)
business days with alternative dates on which that witness is available for deposition
within three (3) weeks of the original proposed deposition date, or the deposition shall be

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noticed and shall go forward on the original proposed date, absent a showing of good
cause.
B.

The Plaintiffs will consult with one another so that depositions noticed by

the Plaintiffs can be coordinated. The Defendants will consult with one another so that
depositions noticed by the Defendants can be coordinated.
C.

The duty to consult in advance is neither intended to give any party or

group of parties a veto right over other parties, nor intended to lessen the previously
assigned role of Direct Purchaser Plaintiffs’ counsel and Indirect Purchaser Plaintiffs’
counsel in coordinating this litigation.
D.

To the extent the witness is a former employee of any party and is not

currently represented by counsel for that party, counsel for that party shall provide in
response to a written request from the noticing party the date of departure and last known
address of the former employee. Counsel shall notify any party noticing the deposition
of a former employee as soon as possible as to whether counsel can accept service of the
notice and will be representing that party for the deposition.
E.

A party may serve a deposition subpoena on a third party five (5) business

days after providing all parties with the name of the deponent and the proposed date for
the deposition. If a party informs the noticing party within five (5) business days that the
party intends to appear at the deposition, the parties shall coordinate with each other and
with the witness (or counsel for the witness), where possible, on scheduling or

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rescheduling of the deposition. If the parties are unable to resolve their scheduling
differences, they shall submit their dispute to the Court for prompt resolution.
F.

Depositions shall be noticed pursuant to the Federal Rules of Civil

Procedure and all notices shall be served on all parties electronically. Any subpoenas for
deposition testimony shall be served on witnesses as required by law, but copies may be
served electronically on all parties. Deposition notices shall have the legal effect of a
deposition notice in all related actions.
V.

POSTPONEMENTS
Once a deposition has been scheduled, it shall not be taken off calendar,

postponed, or rescheduled, except by agreement of the counsel responsible for scheduling
or by other relief obtained from the Magistrate Judge or the Court for good cause shown.
VI.

LOCATION
In order to minimize the expense and inconvenience to parties, witnesses and

counsel, as well as to permit Court intervention for ongoing depositions (if necessary),
depositions of witnesses located in the District of Idaho shall take place in Boise, Idaho,
Pocatello, Idaho, or Idaho Falls, Idaho, as determined by the witness, unless the parties
and the witness reach a mutual agreement as to an appropriate alternate location. The
parties shall meet and confer regarding the locations to attempt to resolve any issues
without Court intervention. Parties not located in the District of Idaho shall be deposed
where they reside unless the parties reach a mutual agreement as to an appropriate
alternate location. Disputes that cannot be resolved through the meet and confer process

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shall be decided on an expedited basis by the Magistrate Judge through a telephonic
hearing with no briefing unless so ordered.
Given the travel costs involved, the parties shall be flexible about completing and
continuing depositions in order to avoid repeat travel. Witnesses will remain reasonably
available day-to-day until their depositions have been completed, as long as that
deposition does not exceed the time allotted above.
VII.

EXHIBITS
A.

Exhibit List. Interim Lead Counsel for Direct Purchaser Plaintiffs and

Interim Lead Counsel for Indirect Purchaser Plaintiffs will maintain a master exhibit list
to facilitate sequential numbering of exhibits, and will reasonably share this list with any
party that requests it.
B.

Pre-Designation of Exhibits. Not later than four business days before a

deposition, all parties intending to examine a deponent may serve on all parties via
electronic mail a non-binding list of documents (by Bates number) that counsel
anticipates using or referring to during the deposition. Examining counsel is not
responsible for bringing copies of pre-designated exhibits for other counsel. Counsel are
not obligated to pre-designate exhibits. Any counsel who does not pre-designate
documents shall bring sufficient copies of such documents to the deposition. With
respect to all exhibits that have been marked and used in a prior deposition in a related
action, “sufficient copies” shall mean four (4) hardcopies. With respect to any “new”
exhibit (i.e., an exhibit that has not been marked and used in a prior deposition in a

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related case), “sufficient copies” shall mean eight (8) hardcopies. In all events,
examining counsel, defending counsel, and all other counsel attending the deposition
shall cooperate in good faith so that counsel for each Party attending the deposition will
have adequate access during the deposition to an exhibit used by examining counsel
during the deposition.
C.

Numbering of Exhibits. Each document marked for identification at a

deposition shall be numbered with a new exhibit number unless it has previously been
marked, in which case the examining attorney will use the previous exhibit number and
refer to the document by that number to the extent practicable. All exhibits shall be
marked sequentially.
VIII. PARTICIPATION BY TELECONFERENCE
To minimize travel and related costs, counsel may participate in any deposition by
telephone. Counsel intending to do so must notify counsel for the party that noticed the
deposition and counsel for the witness at least three (3) business days before the date of
the deposition. Counsel noticing the deposition shall make arrangements so that a
conference call line, and a real-time video and text feed are available during the
deposition. Any party appearing by real-time video, text feed, or conference call shall be
responsible for the cost of the additional services requested. Examining counsel and
counsel intending to participate by phone shall cooperate in good faith to facilitate such
participation. To facilitate participation by phone, any objection to the form of a question
shall be deemed to have been made on behalf of all other parties. When an exhibit is

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introduced at a deposition, counsel shall identify the exhibit by bates number, to the
extent practicable, for clarity of the record and to facilitate participation by
teleconference.
IX.

CONDUCT OF DEPOSITIONS
A.

Regardless of location, all depositions shall be conducted in accordance

with all applicable Federal Rules of Civil Procedure and the Federal Rules of Evidence
unless otherwise required by law. All objections shall be stated concisely in a nonargumentative and non-suggestive manner pursuant to Fed. R. Civ. Pro. 30(c)(2). Any
objection to the form of a question shall be deemed to have been made on behalf of all
other parties, and need not be repeated by another counsel to preserve that objection on
behalf of such other counsel. Counsel shall avoid making speaking objections or
repeating objections already preserved.
B.

The court-reporter service shall maintain a total running time for actual

deposition to measure compliance with the time limitations and the time allocation
provisions above.
X.

STANDARD STIPULATION
The following stipulation will apply to all depositions taken in these actions and

shall be included in each transcript by the court reporter:
A.

Upon completion of the transcription of today’s session, the original

transcript shall be sent to counsel for the witness by the court reporter. Counsel shall
promptly forward it to the witness for review, correction, and signature under penalty of

ORDER - 11

perjury. Within 30 days of receiving the transcript from the court reporter, the witness’s
counsel shall then forward the original transcript plus corrections to the court reporter,
who will promptly notify all counsel of its receipt and any changes to testimony made by
the witness.
B.

If the witness is not represented by counsel, the original transcript will be

sent to the witness by the court reporter. After review, correction, and signature within
30 days from the date of receipt, the witness shall return the original transcript to the
court reporter, who will notify all counsel of its receipt and any changes to testimony
made by the witness. Any witness who makes changes to his or her deposition transcript
must, as required by Federal Rule of Civil Procedure 30(e)(2), sign a statement listing the
changes and the reasons for making them.
C.

The court reporter will provide the original transcript to the first examining

attorney. If, for any reason, the original is lost, misplaced, not returned, not signed, or
unavailable, a certified copy may be used in its place for all purposes.
XI.

FIFTH-AMENDMENT ASSERTIONS
A.

Any witness who intends to assert his or her right to refuse to testify under

the Fifth Amendment of the United States Constitution shall endeavor to provide notice
of their intent to assert the Fifth Amendment no later than 10 days before the scheduled
deposition.
B.

Upon receipt of notice that a witness intends to assert the Fifth

Amendment, the examining attorneys may submit a list of written questions to the

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witness to speed up the deposition, delivered no fewer than 5 days before the scheduled
deposition. At the deposition, the written questions and any associated documents will be
introduced as an exhibit to the deposition, and the witness shall be asked summarily
whether the witness would assert the Fifth Amendment to each of the written questions if
they were posed individually. If the answer to the summary question is “yes,” the
deposition shall last no more than one hour. To the extent that an answer to the summary
question is “yes,” use of the questions and answers at trial will not be precluded on the
basis that the written questions were not asked and answered individually. The use of the
written questions and associated documents shall not prevent questions from being asked
other than those contained in the written ones subject to the time limits described herein.
All objections to written questions submitted to a deponent will be reserved, including
objections to form.
C.

Any person who at a deposition asserts his or her right under the Fifth

Amendment of the United States Constitution not to testify will be bound by that
assertion of the privilege and shall not be permitted to testify otherwise unless, not later
than 60 days prior to the date set for the close of fact discovery, notice is provided in
writing of the intent to revoke the assertion of privilege under the Fifth Amendment and
the willingness of the person to testify. Upon notice, the revoking deponents will make
themselves available for deposition at their expense in Boise, Idaho not later than 45 days
prior to the close of fact discovery or at a later time at the discretion of Plaintiffs if
necessary to adequately arrange and prepare for the deposition.

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XII.

USE OF DEPOSITIONS
The depositions taken by any party pursuant to this Deposition Protocol may be

made available and used in all related actions (i.e., only those actions currently
transferred for pretrial coordination to Case No. 4:10-MD-218). In any related action
where a deposition transcript of a witness is made available for use, the witness may not
be deposed again on the topics addressed in the deposition.
XIII. DEPARTING CUSTODIANS
In response to a request for deposition in Section IV above, a party shall promptly
identify in writing any deponent who has left or intends to leave his or her employment.
The party shall also request that the deponent appear for deposition at a date, place and
time convenient for the parties and the deponent, without the need for service of a third
party subpoena or other formal judicial process on the deponent, and inform the noticing
party of the deponent’s response to such request. If a departing deponent agrees to
appear without the need for service of a third party subpoena or other formal judicial
process on the deponent, the procedures for scheduling the deposition of a current
employee of a party shall apply.
DATED: October 22, 2013

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

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