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

Filing 571

ORDER in case 4:10-cv-00307-BLW-CWD; granting in part and denying in part 544 Motion to Compel in case 4:10-md-02186-BLW-CWD ( 522 in 4:10-cv-00307-BLW-CWD). Signed by Judge Candy W. Dale. Associated Cases: 4:10-md-02186-BLW-CWD, 4:10-cv-00307-BLW-CWD, 4:13-cv-00251-BLW-CWD (klw) Modified on 1/31/2014 (klw). Modified on 1/31/2014 to add link (cjm).

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

IN RE: FRESH AND PROCESS
POTATOES ANTITRUST LITIGATION

THIS MATTER PERTAINS TO:
ALL ACTIONS

Case No. 4:10-md-02186-BLW-CWD
ORDER RE: DIRECT PURCHASER
PLAINTIFFS’ MOTION TO COMPEL
INTERROGATORY ANSWERS
(ECF No. 544)

INTRODUCTION
Direct Purchaser Plaintiffs (“Plaintiffs”) timely filed a motion to compel on
December 11, 2013, directed to Defendants United Potato Growers of Idaho, Inc.; United
Potato Growers of America, Inc.; United II Potato Growers of Idaho, Inc.; Albert T.
Wada; Wada Farms, Inc.; Wada Family LLC; Cedar Farms, Inc.; Michael Cranney d/b/a
Cranney Farms; Cornelison Farms, Inc.; Keith Cornelison; Snake River Plains Potatoes,
Inc.; Lance Funk d/b/a Lance Funk Farms; Raybould Brothers Farms LLC; KCW Farms,
Inc.; Kim Wahlen d/b/a Kim Wahlen Farms; 1 and RD Offutt. 2 The motion seeks an order
compelling answers to certain interrogatories timely served upon those Defendants.

1

The preceding Defendants are all represented by Mr. Steve Anderson of the firm Anderson Banducci, and have
been referred to in prior submissions as the “Anderson Defendants.” The Court will refer to them in that manner as
well.
2
Defendant RD Offutt has been referred to as the Offutt Defendants, and now, in Plaintiffs’ pleadings, as RDO. The
Court will refer to them here as “Offutt.”

MEMORANDUM DECISION AND ORDER - 1

Plaintiffs contend that Defendants wrongfully invoke Fed. R. Civ. P. 33(d), or have failed
to comply with the Rule’s requirements.
The Anderson Defendants and Offutt filed separate responses to the motion. The
Anderson Defendants contend they have complied with Rule 33, and provided examples
within their motion demonstrating how Plaintiffs may compile the information responsive
to the interrogatories. Offutt, on the other hand, indicates it cannot comply with Rule 33
because the interrogatories are too broad, thereby rendering it impossible to specify the
documents produced that are responsive to the interrogatories.
For the reasons that follow, the motion is granted in part and denied in part.
ANALYSIS
Plaintiffs served interrogatories on October 2 and 3, 2013, and Defendants served
responses and objections on November 4 and 7, 2013. The parties in this massive
antitrust litigation have been involved with rolling production of discovery, and the Court
recently extended the fact discovery completion deadline from March 3, 2014, to July 3,
2014. (Dkt. 588.) The parties’ discovery has been governed in large part by an electronic
discovery protocol, and the undersigned has conducted several hearings and status
conferences throughout the discovery process in an effort to facilitate agreement and
cooperation so as to avoid unwieldy motion practice. It seems that now, however, the
parties have reached an impasse on a finite number of interrogatories. See also (Dkt.
539.)

MEMORANDUM DECISION AND ORDER - 2

1.

Legal Standards
Discovery is viewed through the lens of Fed. R. Civ. P. 26(b), which generally

instructs that the amount of discovery requested should be balanced by the need for such
discovery. L.H. v. Schwarzenegger, No. S-06-2042 LKK GGH, 2007 WL 2781132 *2
(E.D. Cal. Sept. 21, 2007). “Discovery does not mean that a party should have to prepare
the other party’s case.” Id. But, a party is not permitted to avoid all burden and expense in
responding to discovery, and must make “reasonable efforts to respond.” Id. Those
efforts are necessarily determined by the size and the complexity of the case, and the
resources available to devote to it.
To temper the burden somewhat, Fed. R. Civ. P. 33 permits a responding party to
specifically direct the requesting party to its business records if the information sought by
an interrogatory can be gleaned from reference to those records. Resort to Rule 33 is
appropriate where the requesting party is as capable of reviewing the documents and
formulating a response as is the responding party. Rule 33 provides, in relevant part:
Where the answer to an interrogatory may be derived or
ascertained from the business records, including
electronically stored information, of the party upon whom the
interrogatory has been served or from an examination, audit
or inspection of such business records, including a
compilation, abstract or summary thereof, and the burden of
deriving or ascertaining the answer is substantially the same
for the party serving the interrogatory as for the party served,
it is a sufficient answer to such interrogatory to specify the
records from which the answer may be derived or ascertained
and to afford to the party serving the interrogatory reasonable
opportunity to examine, audit or inspect such records and to
make copies, compilations, abstracts, or summaries. A
specification shall be in sufficient detail to permit the
interrogating party to locate and to identify, as readily as can
MEMORANDUM DECISION AND ORDER - 3

the party served, the records from which the answer may be
ascertained.
There are certain requirements, however, to invoking the rule. First, the reference
to business records must be specific and designed to provide the information requested,
and must specify, by category and location, the records from which answers to
interrogatories can be derived. Schwarzenegger, 2007 WL 2781132 *3. The responding
party may not avoid answers by imposing on the interrogating party a mass of business
records from which the answers cannot be ascertained by a person unfamiliar with them.
See 7 MOORE'S FEDERAL PRACTICE, § 33.105[3] (3d ed. 2001). References to such
records must be specific and designed to provide the requested information. In other
words, the responding party must “specifically designate what business records answer
each interrogatory.” Pulsecard, Inc. v. Discover Card Servs., Inc., 168 F.R.D. 295, 305
(D. Kan. 1996). “[R]referring to business records en masse, without specifying particular
documents is ‘an abuse of the option.’” In re Sulfuric Acid Antitrust Litigation, 231
F.R.D. 320, 326 (N.D. Ill. 2005). And finally, “[t]he records must be offered ‘in a
manner that permits the same direct and economical access that is available to the
[responding] party.’ If compilations and summaries exist, these should be made
available.” United States ex. rel. Englund v. Los Angeles County, 235 F.R.D. 675, 680
(E.D. Cal. 2006).
A responding party’s familiarity with the method of record retention and
organization may facilitate review of records based on this knowledge that is unavailable
to the opposing party. Id. (citing T.N. Taube Corp. v. Marine Midland Mortg. Corp., 136
MEMORANDUM DECISION AND ORDER - 4

F.R.D. 449, 454 (W.D.N.C. 1991)). In other words, the requesting party must be able to
easily review the records and perform the research necessary to compile the answer.
O’Connor v. Boeing North Am., Inc., 185 F.R.D. 272, 278 (C.D. cal. 1999). And the
response referencing business records must, at a minimum, provide the category and
location of records which will supply the answers; if the records are voluminous, the
response must include an index guiding the party to the responsive documents. Englund,
235 F.R.D. at 680-81. See also Walt Disney Co. v. DeFabiis, 168 F.R.D. 281, 284 (C.D.
Cal. 1996) (specification of records must be in sufficient detail to allow party to locate
and identify documents from which the interrogatory answer may be ascertained, as
readily as the party served); See, e.g., State of Colorado v. Schmidt–Tiago Construction
Co., 108 F.R.D. 731, 735 (D. Col. 1985) ( “The appropriate answer when documents are
to be used [under Rule 33(d) ] is to list the specific document provided the other party
and indicat[e] the page or paragraphs that are responsive to the interrogatory.”). If the
responding party cannot identify which specific documents contain the answer to the
interrogatories, they must completely answer the interrogatories without referring to the
documents. Cambridge Electronics Corp. v. MGA Electronics, Inc., 227 F.R.D. 313, 323
(C.D. Cal. 2004).
2.

Anderson Defendants
A.

Cooperative Members–Interrogatory No. 1

Cooperative Interrogatory 1 directed to UPGI and United II requests identification
of each member of the cooperative and the dates each person was a member of the
cooperative. Plaintiffs essentially seek membership lists for the cooperatives. One of the
MEMORANDUM DECISION AND ORDER - 5

other cooperatives, UPGA, was able to respond with its membership list, but UPGI and
United II invoked Rule 33(d). UPGI directed Plaintiffs to its production generally and to
its “membership files,” while United II similarly directed Plaintiffs generally to its
membership files. Otherwise, Defendants responded that it has produced the records in
searchable electronic format and basically directed Plaintiffs to search the database. On
December 11, 2013, UPGI and United II did produce membership lists spanning three
years each, but these lists fell outside the Bates ranges for the membership files
previously identified in response to Interrogatory 1.
Plaintiffs contend the response remains deficient for the remaining years because
Defendants direct Plaintiffs generally to their business records, which were produced in
“searchable electronic format,” without more identification. Defendants contend that they
provided an explanation by letter (Letter dated December 11, 2013, Ex. 18, Dkt 546-18)
directing Plaintiffs to the documents they should review to compile the information called
for by the interrogatory, and located and provided the Bates numbers for the membership
lists. Defendants argue that Plaintiffs have failed to make an attempt to review the
specified documents using the technology available to them, and that if they did, they
would find the membership lists with relative ease.
Defendants miss the mark. Rule 33(d) requires the responding party to specify the
records that must be reviewed, “in a sufficient detail to enable the interrogating party to
locate and identify them as readily as the responding party could.” Sadofsky v. Fiesta
Prods., LLC, 252 F.R.D. 143, 147 (E.D. N.Y. Aug. 6, 2008) (emphasis added). The vague
reference to “membership records” and a directive to search the documents produced is
MEMORANDUM DECISION AND ORDER - 6

insufficient in the context of this litigation. Rather, the explanation of where and how to
find the membership lists, by Bates number and search terms, as well as how the
membership lists were organized, should have been provided with Defendants’
interrogatory answers, not by letter dated the same date Plaintiffs filed their motion.
In reviewing Defendants’ December 11, 2013 letter, the Court finds it is a decent
start, but it lacks complete information to enable Plaintiffs to adequately find the
documents from which they may compile the information sought by Interrogatory 1.
Defendants indicate they have conducted “simple searches,” but do not identify what
those searches entailed; and Defendants identified only a limited set of membership lists
by Bates number, not the entire set.
Defendants are required by Rule 33(d) to identify, by Bates number and by search
terms used to locate them, the responsive documents within the searchable database
responsive to Interrogatory 1, and to ensure that Plaintiffs have sufficient explanation
regarding the documents so that Plaintiffs may review and extract the necessary
information. For instance, Defendants must provide Plaintiffs with an explanation or
verification that each member’s name is identified on the Membership Agreement, and
the Membership Agreements contain the dates of membership (both beginning and end
dates) in the first paragraph, or something to that effect. The Court has reviewed the

MEMORANDUM DECISION AND ORDER - 7

example document imaged in Defendants’ response brief, (Dkt 573 at 7), and
alternatively finds such an illustration helpful as well. 3
The Court is not compelling Defendants (as they erroneously suggest) to compile
the data for Plaintiffs---only to help Plaintiffs locate the documents from which they may
compile the information, and with a sufficient explanation to enable Plaintiffs to extract
the necessary information. Defendants appear to confuse the directive to identify
documents with the task of compiling the information asked for by the interrogatory. The
two concepts are distinct in the context of Rule 33(d). Defendants must first identify the
documents from which Plaintiffs can compile the data.
Therefore, Plaintiffs’ motion to compel is granted with respect to Interrogatory 1.
B.

Boards and Committees–Interrogatory No. 3

Plaintiffs request supplemental responses to Interrogatory 3 by UPGA and UPGI,
which requests the identity and purpose of all existing and previous Cooperative boards
and committees, as well as the identity of all current and former Cooperative board and
committee members. Plaintiffs assert that UPGA identified only four current committees
and six former committees, failed to identify members for eight of the ten committees
identified, and for two other committees, identified only current members. Plaintiffs
assert that UPGI identified numerous committees and members, but failed to specify
dates during which the members served.

3

The Court is not suggesting that Defendants provide an illustration for all of the membership agreements, just that
the illustration was helpful and may similarly be helpful to Plaintiffs if the names and membership dates are not
readily apparent. For instance, if the agreements are different for each district, one sample document could be
imaged for each of the districts.

MEMORANDUM DECISION AND ORDER - 8

Defendants direct Plaintiffs generally to their business records, and state that the
information has been produced in searchable electronic format that will enable Plaintiffs
to derive the answer to the interrogatory. Defendants provide a chart with the name, title,
and description of the current officers and directors of UPGI, and only the names of the
current committees and their members within UPGA. UPGA identified also that
information regarding its board of directors can be located at UPGA-121093.
Plaintiffs contend Defendants’ response is deficient. Defendants assert in their
brief that Plaintiffs failed to conduct even a cursory review of the documents, and set
forth in detail the Bates numbers of documents referencing UPGI’s organization for the
years 2005 – 2011, and provide additional information about UPGA’s committees that
Defendants claim they already informed Plaintiffs about. Again, this information should
have been included in the answer to Interrogatory 3.
The same deficiencies the Court identified with Defendants’ answer to
Interrogatory 1 exist here. It is not enough to direct Plaintiffs to Defendants’ documents
and tell them to “go search them,” without identifying how to find them by Bates number
and search term. The fact Defendants later may have provided Plaintiffs with additional
and helpful information, by way of letter, email, or otherwise, is similarly insufficient.
The interrogatory answer should be self-contained at this point in the litigation, and
Plaintiffs should not have to consult other correspondence to piece together the
methodology for finding the documents containing the information sought by the
interrogatory.
Plaintiffs’ motion to compel is granted with respect to Interrogatory 3.
MEMORANDUM DECISION AND ORDER - 9

C.

Meetings/Communications/Agreements–Interrogatory No. 4

Interrogatory 4 asks the Cooperative Defendants to identify each meeting held,
including board of directors meetings, committee meetings, summit meetings and
organizational meetings, and provide the date and location; persons who attended; subject
matter discussed; action taken; persons with knowledge relating to the meeting; and Bates
ranges of documents evidencing the meeting. After Defendants objected to the scope of
the request, Plaintiffs limited this interrogatory to meetings and agreements regarding (1)
the supply control mechanisms identified in Plaintiffs’ Complaint or (2) any other efforts
specifically aimed at impacting the supply or price of potatoes. Plaintiffs object to
UPGA’s, UPGI’s, and United II’s response, which again invoked Rule 33(d) and directed
Plaintiffs to locate the meeting minutes by searching through the produced documents for
the terms “meeting, meetings, and minutes.” Plaintiffs argue the response is insufficient.
Defendants contend that the term “meeting” was overbroad, and agree that
Plaintiffs’ suggested limitation in its brief to “board and committee meetings” sufficiently
narrows the scope of the interrogatory. However, Defendants again improperly invoke
Rule 33(d) by contending Plaintiffs can simply search the database produced for
“meetings.” Defendants explain they conducted “simple searches within our clients’
production database and located meeting minutes grouped together,” and provided Bates
range “examples,” but again this is insufficient.
Defendants must provide Plaintiffs with the appropriate search terms, and Bates
numbers, for the universe of meeting minutes responsive to Interrogatory 4. Plaintiffs can

MEMORANDUM DECISION AND ORDER - 10

then examine the documents and compile the information asked for by the Interrogatory.
Plaintiffs’ motion to compel is granted with respect to Interrogatory 4.
D.

Potato Sales, Growing and Transactional Documents–Interrogatories 1
and 3

Interrogatory 1 seeks acreage, yield and revenue information for non-contract
fresh potatoes, while Interrogatory 3 seeks the same information with respect to contract
potatoes. Specifically, the interrogatories ask for the number of acres and the yield per
acre; the total amount in pounds of potatoes sold and revenues received; number of acres
not planted pursuant to an acreage reduction program established by the Cooperative
Defendants; and how much defendants were paid by the Cooperative Defendants for not
planting the potatoes.
While certain Anderson Defendants responded with compiled tables identifying
acreage, yield and revenue by year, Defendants Funk, Cornelison and Raybould did not.
Funk identified its business records located at FUNK 070274-087816 and directed
Plaintiffs to search using terms “FSA 578 and/or Producer Print.” Cornelison and
Raybould directed Plaintiffs generally to their respective business records, and stated that
Plaintiffs could search for the documents. Raybould did, however, identify certain
business records by Bates numbers Raybould 000001-486 in response to Interrogatory 3.
Plaintiffs object to the invocation of Rule 33, absent some sort of document index
or other means to facilitate a more effective and accurate review of Defendants’
document production. The Court agrees. Mere reference to the use of search terms and
Bates numbers in the context of this interrogatory is insufficient. Defendants should have
MEMORANDUM DECISION AND ORDER - 11

provided the type of explanation they gave the Court in their brief, as that would have
enabled Plaintiffs to easily locate and decipher the proprietary business records produced
by Defendants. Defendants must explain what the documents show, as they have done in
their brief. Defendants failed to provide, in answer to the interrogatory, an explanation of
how the records were retained and organized so that Plaintiffs could easily review them
and compile the information sought. If there is no information beyond the content
reflected in the documents, Defendants must say so unambiguously in their answer. In re
Sulfuric Acid Antitrust Litigation, 321 F.R.D. at 327.
Plaintiffs are not, as Defendants suggest, asking Defendants to aggregate the
information---only to provide Plaintiffs with the identity of the documents they must
review, and an explanation of how the documents are organized in order to facilitate that
review. The motion is therefore granted.
Next, Plaintiffs object to the Wada Grower Defendants’ answers to Interrogatories
1(b), 1(c), 3(c), and 3(d), asserting their answers were “cryptic.” These subparts
requested information concerning the acreage reduction allegedly undertaken by each
Defendant pursuant to Cooperative-established acreage reduction programs, including the
“Bid Buy-Down Program.” The Wada Grower Defendants answered Interrogatory 1(b)
by stating that Wada Growers “managed their acreage every year taking into account a
number of different factors, including UPGI market information. The base acres set under
the UPGI acreage recommendations allowed substantial flexibility and permitted acreage
management to occur normally using best market information available from any
source.”
MEMORANDUM DECISION AND ORDER - 12

Plaintiffs seek an order compelling the Wada Growers and any other Anderson
Defendant who participated in a Bid Buy-Down or other acreage reduction program to
identify the impact of these acreage reduction programs on their potato acreage, and how
much payment they received for participation in the programs. Defendants respond by
arguing that their answer is unambiguous, and explain that the facts of the case are at
odds with Plaintiffs’ theory of the case. In other words, Defendants argue that the
interrogatory asks for information that does not necessarily exist beyond Plaintiffs’
theory driving the case.
If that is indeed the case, the Court cannot compel an answer if one does not exist.
If Defendants deny that there was no acreage reduction program or bid buy-down
program, however, they should unambiguously say so.
E.

Potato Sales, Growing and Transactional Documents–Interrogatories 2
and 4

Interrogatories 2 and 4 seek the identity of Defendants’ potato purchasers, as well
as information on an annual basis concerning quantities purchased and prices paid from
each year from 2001 to the present. Specifically, Interrogatory 2 asks for the name and
address of persons who purchased Potatoes; the amount sold in pounds to each purchaser;
and the gross and net prices paid. In Interrogatory 4, Plaintiffs ask for the names and
addresses of parties to and dates of each contract for the sale of Contract Potatoes; the
amount in pounds; and the gross and net price terms.
Certain Wada Defendants, Pleasant Valley, and Wahlen responded by identifying
database excerpts, which Plaintiffs are continuing to review. But others, including Snake
MEMORANDUM DECISION AND ORDER - 13

River, Funk, Cranney, the Wada Growers, Cornelison and Raybould directed Plaintiffs to
their document production. Snake River identified business records located generally at
SRPP 053097-137302; Funk identified business records located generally at FUNK
070274-087816; and Cranney directed Plaintiffs to CRANNEY 069701-75948, and
76360-76454, as well as produced a chart indicating the acres and yield per year as well
as the pounds and revenue per year. Plaintiffs also contend that Wada and Cranney
produced paper records comprising various unique and idiosyncratic record-keeping and
notations on them.
Again, while it was appropriate here for Defendants to direct Plaintiffs to
responsive documents by Bates number, the Court finds lacking information similar to
the exemplar provided in Defendants’ responsive brief. Plaintiffs must be able to easily
find the data contained within the documents responsive to the interrogatory. Without any
explanation of how to do that, Defendants have failed to comply with Rule 33(d).
The motion to compel more complete responses to Interrogatories 2 and 4 is
granted.
3.

Offutt Defendants
A.

Meetings/Communications/Agreements–Interrogatories 9 and 10

Plaintiffs requested in Interrogatory 9 that the Offutt Defendants identify meetings
or communications between them and competitors, cooperatives, potato marketers or
potato processors where certain topics were discussed, and to provide the date and
location; persons who participated; subject matter discussed; action taken; and persons
with knowledge; and Bates numbers of the documents evidencing the meeting or
MEMORANDUM DECISION AND ORDER - 14

communication. In Interrogatory 10, Plaintiffs asked for the identification of each
agreement, excluding transactional agreements for the sale or purchase of Fresh or
Process Potatoes between them and competitors, cooperatives, potato marketers or potato
processors relating to identified topics, and to provide the identity of persons with
knowledge of the agreement; date, place, nature, and terms of the agreement; which
officers, directors or employees were aware of the agreement; and the Bates ranges of the
documents evidencing the agreements. Plaintiffs further limited the scope of the
interrogatories to meetings, communications and agreements regarding (1) the supply
control mechanisms identified in Plaintiffs’ Complaint or (2) any other efforts
specifically aimed at impacting the supply or price of potatoes.
Offutt Defendants objected to both interrogatories on the grounds that they are
overly broad, considering the scope of information requested and the expansive time
period of January 2004 to the present---over 9 years. Offutt Defendants further explain
that identification of such documents would require speculation on their part; therefore,
they directed Plaintiffs generally to their document production.
Plaintiffs seek an order compelling a response in compliance with Rule 33(d),
which Offutt Defendants argue is impossible given the broad scope of the interrogatory.
Plaintiffs offered a limitation, which would have limited the scope of the meetings or
agreements to those that discussed “(1) the supply control mechanisms identified in
Plaintiffs Complaint or (2) any other efforts specifically aimed at impacting the supply or
price of potatoes.” Offutt Defendants object primarily to the limitation proposed in (2),
because any number of Offutt’s business dealings could “arguably to some degree be said
MEMORANDUM DECISION AND ORDER - 15

to ‘impact’ the supply or price of potatoes” given Offutt is in the business of growing and
selling potatoes.
These interrogatories are essentially the same as Interrogatory 4 directed to the
Anderson Defendants. The Anderson Defendants and Plaintiffs were able to substantially
narrow the scope of the interrogatory using the two limitations proposed above, and
further limiting the scope to “board and committee meetings.” The Court concludes the
parties should meet and confer further on this issue, given Plaintiffs apparently agreed
with the same objection raised by the Anderson Defendants. Currently, “meetings” could
be anything—even casual meetings in the hallway. Plaintiffs must further refine the
scope of the request such that Offutt Defendants can direct Plaintiffs to a discrete
universe of business records responsive to the request, as Plaintiffs have done with the
Anderson Defendants. The motion is therefore denied.
B.

Potato Sales, Growing and Transactional Documents–Interrogatories 2
and 4

As with the Anderson Defendants, Interrogatories 2 and 4 seek the identity of
Offutt Defendants’ potato purchasers, as well as information on an annual basis
concerning quantities purchased and prices paid from each year from 2001 to the present.
Interrogatory 2 asks for the name and address of any purchaser of potatoes; the amount of
potatoes sold in pounds to each purchaser; and the gross and net prices paid for the
potatoes. Interrogatory 4 sought the same information for any contracts for the sale of
Contract Potatoes.

MEMORANDUM DECISION AND ORDER - 16

In response to Interrogatory 2, Offutt Defendants directed Plaintiffs to three
attached excel spreadsheets and a zip file containing WFI inforums database for
Winnemucca Farms, Inc. In response to Interrogatory 4, Offutt Defendants directed
Plaintiffs to tables compiled in response to Interrogatory 3, for the crop years 2007 –
2013.
Plaintiffs argue the responses to both interrogatories are deficient because the
responses include only sales information for potatoes grown at a single location, and do
not include sales information relating to process potatoes sold for purposes other than
dehydration, thereby excluding fresh and process potatoes. Plaintiffs seek an order
compelling Offutt Defendants to provide sales information for all fresh or process
potatoes sold from 2001 to the present.
Offutt Defendants argue that they provided the requested information for its fresh
and dehydration sales, but not for its French fry potato sales, because Offutt understood
from the meet and confer process that documents pertaining to sales to French fry
processors were excluded from the scope of the requested production. In fact, Plaintiffs
did not request information regarding French fry processor sales, but instead “reseve[d]
the right to request information for non-dehydration processing facilities [i.e. French Fry
Processors] in the future based on their review of documents produced by Offutt or other
Defendants (for instance, if discovery indicates that fresh potatoes were diverted to nondehydration processing facilities as a means of restricting supply).” Decl. of McGovern
(Dkt 566-3.) Offutt Defendants state that its Crop Production Matrix Reports were

MEMORANDUM DECISION AND ORDER - 17

produced for 2004 through 2012, which detail the total acres planted, total potato acres
planted, and quantity of potatoes produced for all of its farms. Decl. of Falk (Dkt. 566-4.)
The Court cannot make sense of the answers Offutt Defendants provided in
response to Interrogatories 2 and 4. On the one hand, the Court agrees with Offutt
Defendants that they do not have an obligation to answer the interrogatories as they relate
to French fry processor sales, given it appears the parties agreed the earlier (and
completed) document production excluded such information. Plaintiffs have not argued
that French fry processor sales information is now relevant from its review of the
documents produced.
But, it does not appear Offutt Defendants otherwise answered the interrogatories
completely. The Court cannot discern if the Excel spreadsheets and zip file produced
responsive to Interrogatory 2 contain the information sought. The Court was not given
these files. Plaintiffs assert only one farm was included, while Offutt Defendants
submitted a declaration that data for all of its farms was produced.
The Court cannot determine from the record before it if Offutt Defendants failed
to respond to Interrogatory 2. But, Offutt Defendants indicate they produced information
pertinent only for 2004 – 2012, and do not explain why they did not produce information
from 2001 – 2003, which was requested in Interrogatory 2. Similarly, the tables compiled
cover 2007 – 2013, but Offutt Defendants do not explain why the information was not
compiled for 2001-2006. In that regard, the answers are insufficient. If there is no
information for those years, Offutt Defendants should so state. Alternatively, if there are

MEMORANDUM DECISION AND ORDER - 18

discrete documents rather than compilations that would provide the missing information,
Offutt Defendants are directed to comply with Rule 33(d) as the Court outlined above.
If the Court is unable to conclude with certainty that the Offutt Defendants
answered Interrogatories 2 and 4 completely, then it is apparent why Plaintiffs filed their
motion. Offutt Defendants must supplement their answers, excluding French fry
processor sales.

CONCLUSION
For the reasons explained above, Plaintiffs’ motion to compel Defendants to
comply with certain interrogatory requests is granted in part and denied in part. To
summarize, the Anderson Defendants must comply with Rule 33(d) for all of the
interrogatories at issue in Plaintiffs’ Motion consisted with the Court’s analysis. The
Offutt Defendants’ objection to Interrogatories 9 and 10 is sustained. The parties are
directed to meet and confer to narrow the scope of the terms “meetings and agreements,”
as Plaintiffs were able to do so for the Anderson Defendants. The Offutt Defendants are
required to supplement their answers to Interrogatories 2 and 4, excluding French fry
processor sales data, so that it is readily apparent all of the information responsive to the
interrogatory is identified.

MEMORANDUM DECISION AND ORDER - 19

ORDER
NOW THEREFORE IT IS HEREBY ORDERED:
1) Direct Purchaser Plaintiffs’ Motion to Compel Interrogatory Answers (Dkt.
544) is GRANTED IN PART AND DENIED IN PART.

January 31, 2014

MEMORANDUM DECISION AND ORDER - 20