Associated Wholesale Grocers, Inc. v. United Potato Growers of America, Inc. et al
ORDER granting in part and denying in part 493 Motion to Compel in case 4:10-md-02186-BLW-CWD; granting in part and denying in part 82 Motion to Compel in case 4:13-cv-00251-BLW-CWD. Signed by Judge Candy W. Dale. Associated Cases: 4:10-md-02186-BLW-CWD, 4:13-cv-00251-BLW-CWD(klw)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
IN RE: FRESH AND PROCESS
POTATOES ANTITRUST LITIGATION
Case No. 4:10-MD-2186-BLW
MDL No. 2186
THIS DOCUMENT RELATES TO:
KANSAS TAG-ALONG ACTION ONLY
ORDER RE POTANDON PRODUCE
LLC’S MOTION TO COMPEL (MDL Dkt.
Assoc. Wholesale Grocers, Inc. v. United
Potato Growers of America, Inc., et. al.
Potandon filed a motion to compel on October 13, 2013, (Dkt. 493), and AWG filed a
response (Dkt. 518). Through additional meet and confer sessions, the parties reached agreement
on all but four of the 87 document requests served on AWG. The four requests at issue relate to
Potandon’s request for AWG’s downstream sales data; patronage payments to AWG
Shareholders; membership agreements; and retail outlets that sell potatoes sold by AWG. AWG
argues that the requests by Potandon are not relevant, and the burden of production outweighs
any potential probative value.
AWG offered instead to produce exemplars of the data requested. Potandon rejected this
offer. The Court on December 11, 2013, required AWG to produce the information described in
ORDER RE: POTANDON PRODUCE LLC’S MOTION TO COMPEL - 1
its Response Brief (Dkt. 518) in an effort to mediate the dispute. AWG produced the
information, and the Court set a telephonic status conference with the parties on February 27,
2014. The parties provided status reports to the Court prior to the status conference.
The Court issues the following order, granting in part and denying in part Potandon’s
Motion to Compel (Dkt. 493) as follows:
AWG Membership Documents (No. 30):
Potandon alleges a conspiracy between AWG and its members. It requested AWG’s
membership agreements so it can learn who AWG’s members are. AWG objected on the
grounds of relevance. The Court finds the membership agreements are relevant. Because AWG
cannot easily discern which members purchased only potatoes and limit its production of the
membership agreements to only those members, the Court orders that all membership
agreements must be produced. The parties agree that the relevant time period for production is
from 2001 through April 17, 2013.
Patronage Payments (No. 13) and AWG Potato Sales Data (Nos. 2-4).
Potandon requests information regarding patronage payments based upon AWG’s
assertion in its answer to Potandon’s counterclaim that it rebates a percentage of its net income
back to members, and that patronage amounts are apportioned to members based upon qualifying
warehouse purchases. Potandon seeks information about the patronage program so it can
calculate how potato prices were reduced for each AWG member that purchased potatoes.
Potandon asserts that the patronage information may reveal the individualized dollar figure of the
rebate or discount received by the member, and they allege that each co-conspirator (member)
may therefore have paid its own net price for potatoes.
ORDER RE: POTANDON PRODUCE LLC’S MOTION TO COMPEL - 2
Additionally, Potandon seeks transactional data regarding individual sales. Potandon
argues that the information requested would allow it to analyze prices actually paid over time
and across regions. Potandon contends that AWG’s sales data will show that the collective
purchasing agreements of AWG and its members reduced potato prices paid over time compared
with prices paid by non-AWG members.
AWG objects to producing the “micro” patronage payments and transactional data,
because such data does not exist prior to 2006, and for years 2006-2012, backup tapes sorted by
SKU number and in code would require restoration. However, the data requested for 2012 and
2013 is not subject to that limitation.
The Court orders AWG to produce the transactional data and patronage data for 2012 and
2013, as it exists in the ordinary course of business, without any waiver of Potandon’s ability to
obtain the data on the backup tapes. Potandon shall have the opportunity to review the
documents, and if it determines that it requires the data on the backup tapes, Potandon and AWG
shall work together to find a reasonable solution to extract the data. Potandon suggested copying
the tapes and turning them over to a vendor to extract the data, which the Court believes could be
a solution to the parties’ impasse.
The second category of documents falling under the request for patronage payments
involves email ESI and other electronic documents contained in AWG’s files. AWG agreed at
the status conference to produce the requested information from 2001 up through April 17, 2013,
and the Court deems the matter resolved.
Identification of Retail Outlets (No. 31).
Potandon requested documents identifying retail stores or outlets selling potatoes sold by
AWG . Potandon contends the identity of the retail outlets is necessary to calculate damages.
ORDER RE: POTANDON PRODUCE LLC’S MOTION TO COMPEL - 3
AWG’s membership agreements may contain exhibits attached to the agreement that show the
members’ retail outlets. AWG contends the information request is overly broad, because AWG
does not sell potatoes from a retail store. Rather, the members sell the potatoes purchased
through AWG to retail stores.
The Court finds that the identification of the retail outlets is relevant and, to the extent the
information is contained in attachments to the membership agreements, not burdensome to
produce. If the membership agreements do not sufficiently identify the members’ retail outlets,
Potandon may bring the issue back before the Court.
Search Terms Applied to ESI
Potandon proposes broader terms, while AWG proposes to modify each term with the word
“potato.” AWG believes it can resolve this issue with Potandon given the Court’s order. The
Court requires the parties to come to a resolution on this issue on or before March 7, 2014. If the
parties are unable to agree on the search terms to apply to AWG’s ESI, the parties are to call Law
Clerk Kirsten Wallace at (208) 334-9111 on March 10, 2014, and the Court will schedule a
telephonic conference with the parties to resolve the issue.
Website Data Spoliation
Potandon requested archived copies of webpages maintained by AWG as those pages
appeared on July 3, 2013, or to confirm that the websites were not preserved. AWG confirmed
that the websites were preserved, and the Court orders that the production occur on or before
March 7, 2014.
Potandon is concerned it will not have enough time to review AWG’s documents and
schedule depositions within the time remaining for discovery. The Court therefore orders AWG
ORDER RE: POTANDON PRODUCE LLC’S MOTION TO COMPEL - 4
to produce the 2012-2013 transactional and patronage data on or before March 7, 2014. For all
other production requests, the production must be completed no later than March 28, 2014.
IT IS SO ORDERED.
February 27, 2014
ORDER RE: POTANDON PRODUCE LLC’S MOTION TO COMPEL - 5
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