American Home Assurance Company et al v. Greater Omaha Packing Company Inc.

Filing 147

MEMORANDUM AND ORDER - The 1-day, 7-hour period designated by the Federal Rules shall apply separately to each representative designated for 30(b)(6) deposition. The appearance of a witness as a 30(b)(6) designee shall not affect either party's right to take a deposition of that witness in their individual capacity for the full duration contemplated by the Federal Rules. Cargill's request for an order compelling Cargill to limit the number of topics in its 30(b)(6) deposition notice i s denied. Cargill's request for a protective order is denied with respect to the content of Deposition Topic No. (34). Cargill is free to make objections at the deposition to protect confidential attorney-client communications and work product, but Cargill must disclose any communications or work product that was previously disclosed to a third party. Inquiry under Topic Nos. 13, 14, and 30 shall be limited to the year 2007. Cargill's request for more restrictive temporal limits on T opic Nos. 18, 20, 23, 24, and 39 is denied. Cargill's representatives shall not be required to disclose attorney impressions, conclusions, or opinions regarding settlements with consumers of tainted beef at the 30(b)(6) deposition. Cargill shal l be required to disclose any underlying facts regarding consumers of tainted beef, the tainted beef which the consumers received, and other facts related to the incidents of tainted beef which resulted in settlements by Cargill. Such facts are disco verable regardless of whether Cargill has first hand knowledge of the fact in its documents or through its employees or whether such facts were gleaned from third parties as part of the investigations which led to the settlements. Inquiry under Topi c No. 18 shall be limited to sampling or testing that indicated the presence of E. coli O157:H7 but shall not be limited to a single Cargill facility. On or before September 23, 2013, GOPAC shall serve a revised Notice to Take Rule 30(b)(6) depositi on that contains revisions to Topic Nos. 23, 30, 31 and 32 that appropriately narrow their scope. Alternatively, GOPAC may choose to withdraw these topics. Inquiry under Topic No. 38 shall be limited to the general nature and operation of Cargill& #039;s sales, distribution, and tracking processes. Inquiry under Topic No. 25 shall be limited to individuals alleged to have contracted E. coli O157:H7 from a Cargill product or which have settled with Cargill in relation to 'the Recall. 9; No later than September 30, 2013, GOPAC shall disclose to Cargill the sources it has searched or intends to search for ESI and, for each source, shall identify the search terms used. No later than November 1, 2013, GOPAC shall produce ESI for all sources within its possession or control based on the search parameters that it has already established. No later than November 1, 2013, GOPAC shall provide its supplemental answers to Interrogatories Nos. 22-28, 30, and 35-38. No later than Nove mber 1, 2013, GOPAC shall produce its supplemental responses to Cargills Document Production Requests Nos. 10, 36-38, 42, 49, and 50. No later than November 1, 2013, GOPAC shall produce all non-privileged materials responsive to Cargill's Docum ent Production Request Nos. 22 and 24. No later than November 1, 2013, GOPAC shall producea copy of responsive tax documents. Such documents shall be labeled "CONFIDENTIAL - ATTORNEYS EYES ONLY." Cargill's outside counsel, upon receivi ng any documents labeled CONFIDENTIAL -ATTORNEYS EYES ONLY," will take steps to ensure that such documents are not viewed by anyone other than Cargill's outside counsel in this matter. Within 60 days of the close of litigation, Cargill sha ll hand over any copies of these documents to GOPAC or destroy them. A file copy shall not be retained. Within 10 days of destruction or return, Cargill shall certify to GOPACs counsel that all copies have been returned or destroyed. Cargill's request for an order compelling production responsive to its Document Production Request Nos. 51-54 is denied. Ordered by Senior Judge Lyle E. Strom. (AOA)

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
AMERICAN HOME ASSURANCE
COMPANY and CARGILL MEAT
SOLUTIONS CORPORATION,

)
)
)
)
Plaintiffs,
)
)
v.
)
)
GREATER OMAHA PACKING COMPANY,)
INC.,
)
)
Defendant.
)
______________________________)

8:11CV270

MEMORANDUM AND ORDER

This matter is before the Court on (1) the motion of
Cargill to relieve it of any obligation to respond to GOPAC’s
30(b)(6) Notice (Filing No. 123); (2) the separate motion of
Cargill to compel discovery and limit the scope of GOPAC’s
30(b)(6) Notice (Filing No. 120); and (3) the motion of GOPAC for
an extension of the seven hour limit for depositions (Filing No.
129).
I. Length of 30(b)(6) Depositions
First, Cargill argues that the Amended Progression
Order limits the duration of 30(b)(6) depositions to a total of
seven hours regardless of the number of representatives.
relevant language from the Amended Progression Order is as

The

follows:
Each party is limited to taking
thirty (30) depositions in this
case, without leave of court. A
deposition taken pursuant to
Fed.R.Civ.P.30(b)(6) counts as a

single deposition for purposes of
this limit, regardless of the
number of topics or representatives
produced by a party in response to
a 30(b)(6) deposition notice.
The reference to 30(b)(6) depositions “count[ing] as a
single deposition” is only “for the purposes of this limit,” i.e.
the total number of depositions.

The Amended Progression Order

places no specific limits on the duration of depositions except
to refer the parties to Rule 30(d)(1).

The text of Rule 30(d)(1)

limits the length of a deposition to “1 day of 7 hours.”

The

Advisory Committee Notes to the 2000 Amendment clearly state that
“[f]or purposes of this durational limit, the deposition of each
person designated under Rule 30(b)(6) should be considered a
separate deposition.”

Based on the arguments made at the

September 5, 2013, hearing, the Court expects that seven hours
per 30(b)(6) representative will be adequate for purposes of this
case.

Therefore, this is the baseline from which the Court will

consider any further limitations or expansions of time under
Rules 26(b)(2)© (imposing an obligation to limit discovery if it
is unreasonably cumulative or unnecessarily burdensome) or
30(d)(1) (“[T]he court must allow additional time consistent with
Rule 26(b)(2) if needed to fairly examine the deponent.”).
Next plaintiffs argue that any witnesses designated as
representatives for purposes of the 30(b)(6) deposition should
not be subject to an additional seven-hour deposition in their

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individual capacity.

Plaintiff recognizes that the Federal Rules

suggest a presumption in favor of independent seven-hour
depositions.

Sabre v. First Dominion Capital, LLC, No. 01-CV-

2145, 2001 WL 1590544 (S.D.N.Y. December 12, 2001).
seek to overcome the presumption.

Plaintiffs

However, the only basis

plaintiffs cite for such a ruling is a vague reference to
efficient discovery process.”

“an

Given the complex nature of the

case and the substantial amount in controversy, the Court sees no
reason to consolidate the time allowed for depositions given in a
representative and individual capacity.
II. Protective Order
GOPAC is entitled to “discovery regarding any
nonprivileged matter that is relevant to any party's claim or
defense.”

Fed. R. Civ. P. 26(b)(1).

Relevant information need

not be admissible at the trial if the discovery appears
reasonably calculated to lead to the discovery of admissible
evidence.”

Id.

However, the Court must limit discovery if it is

unreasonably cumulative or unnecessarily burdensome.
26(b)(2)©.

Id. at

A motion for a protective order “must include a

certification that the movant has in good faith conferred or
attempted to confer with other affected parties in an effort to
resolve the dispute. . . .

The court may, for good cause, issue

an order to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense.”

-3-

The

Court finds that the movant has made a good faith effort to
confer with the opposing party but that such communications have
failed to resolve the dispute.

Further, the Court finds that the

movant has made a showing of good cause on some of its requests
but has failed to make an adequate showing as to others.

The

movant bearing the burden, the inadequately supported requests
will be denied as outlined below.
A. Privileged Information (Topic Nos. 34 & 36)
Cargill objects that Topic Nos. 34 and 36 ostensibly
cover communications between Cargill and its attorney Gass Weber
that are privileged.

The fact that a deposition topic may

encompass privileged information is typically insufficient to
support an order barring all questions on the topic.

See McBride

v. Medicalodges, Inc., 250 F.R.D 581, 587 (D. Kan. 2008).

In

most cases, it is more appropriate for the parties to make their
objections when questions implicating privileged information are
asked at the deposition.

See United States v. Hodgson, 492 F.2d

1175, 1177 (10th Cir. 1974) (“[Parties] must normally raise the
privilege as to each record sought and each question asked.”).
However, such orders have been issued where the topic explicitly
asks for privileged information.

McBride, 250 F.R.D at 587.

disputed topics are as follows:
(34) All contact or communication
that "Cargill" (including, but not
limited to, Rebecca Hayne and Mark
Klein) or "Gass Weber" had with the
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The

New York Times or Michael Moss
(including, but not limited to,
their agents, employees,
representatives, or reporters)
regarding the "Article" or any
matter contained in the "Article."
(This also includes "Cargill's"
involvement in, and knowledge
regarding, the "Article" and all
contact or communication between
"Cargill" and "Gass Weber"
regarding the "Article" or any
matter contained in the "Article.")
(36) All matters relating to any
arbitrations, lawsuits, litigation,
mediations, settlements (including
the amounts, calculations, and
evaluations related to any
settlements), or any other judicial
proceedings relating to the "Ground
Beef," the "Raw Beef Trim," the
"Recall," any matter alleged in the
"Plaintiffs' Complaint," or any
person who claims to have been
sickened with the alleged E. coli
O157:H7 strain allegedly found in
any part of the "Ground Beef" or
the "Raw Beef Trim."
Neither attorney client privilege nor the work product
doctrine protect all of the information encompassed in Topic No.
34, which requests communications between Cargill and a third
party and communications between Cargill’s lawyer and the third
party.

The attorney client privilege protects only those

communications which are confidential.

See United States v. BDO

Seidman, LLP, 492 F.3d 806, 815 (7th Cir. 2007).1

1

The work

Under Federal Rule of Evidence 501, diversity cases use
federal common law to determine privilege issues, but in nondiversity civil cases, such as this one, state law applies. The
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product doctrine protects the mental impressions, legal
conclusions, and legal strategies of an attorney which are formed
in anticipation of litigation on behalf of their client.

Hickman

v. Taylor, 329 U.S. 495, 511 (1947). Cargill has not argued that
the communications with third parties are privileged, and the
circumstances suggest that these communications lacked the
critical requirements of confidentiality or preparation in
anticipation of litigation.2

Thus, the Court finds that these

communications should not be the subject of a protection order.
The final parenthetical of Topic No. 34 indicates that
the request for information regarding the third-party
communications includes information about “contact or
communications between Cargill and Gass Weber.”

To the extent

any of the content or existence of these communications were
disclosed to a third party, the privilege has been waived for the
same reasons noted above.
Topic No. 36 seeks, on its face, information
traditionally protected by attorney client privilege or the work
product doctrine.

Unlike Topic No. 34 which identifies the non-

protected information it seeks from Cargill’s attorney, Topic No.

Court notes that confidentiality is a common feature to claims of
privilege. See Neb. Rev. Stat. § 27-503(2); N.Y. C.P.L.R.
§ 4503(a)(1).
2

In an answer to an interrogatory, Cargill explicitly
disclaims that Gass Weber was authorized to conduct these
conversations on its behalf.
-6-

36 makes no attempt to avoid attorney work product and privileged
communications regarding settlements with the consumers of
tainted beef.

However, the underlying facts upon which the

settlement was based are not protected by the work product
doctrine.

Hickman v. Taylor, 329 U.S. at 508 (“[T]he protective

cloak of this privilege does not extend to information which an
attorney secures from a witness while acting for his client in
anticipation of litigation.”).

Nor is Cargill released of the

obligation to disclose such facts simply because they were the
subject of attorney-client communications.

Upjohn Co. v. United

States, 449 U.S. 383, 395-96 (1981).
To the extent that Topic No. 36 seeks strategic
information or attorney impressions, conclusions, or opinions
such as “calculations and evaluations related to any
settlements,” the Court finds such information should be
protected from inquiry in the 30(b)(6) deposition.

However, if a

Cargill representative has knowledge of the underlying facts,
regardless of whether such facts were the subject of a privileged
communication or committed to writing in attorney work product,
they are non-privileged and must be disclosed if inquired upon.
B. Coverage Periods
Cargill objects to examination that extends before or
after the year in which the alleged shipment of contaminated beef
was delivered and in which the contamination was discovered.

-7-

Though Cargill fails to provide any specific reason to limit
discovery to the year 2007, it generally objects that discovery
beyond that period is unreasonable, unduly burdensome,
irrelevant, and seeks information not likely to lead to the
discovery of admissible evidence.

While a general objection does

not warrant an order limiting discovery to arbitrary temporal
limits, in reviewing the individual topics in dispute, the Court
finds reason to impose some restrictions.
Given that the contaminated beef was traced to a
specific time in Cargill’s facility, the periods substantially
before and after the beef was in the facility appear unlikely to
produce admissible evidence with regard to most of the disputed
topics.

GOPAC fails to address how conditions at the factory in

the extended periods might provide relevant information as to the
contaminated beef that was in Cargill’s facility in the fall of
2007.

Therefore, the period for Topic Nos. 13 and 14 shall be

limited to the year 2007.

However, incidence of contamination

from other suppliers in a slightly expanded time period may be
probative of the contaminated beef’s origin.

Therefore the

period for Topic Nos. 18, 20, 23, 24, and 39 shall not be
altered.

GOPAC has failed to justify the burdensome 11-year

period covered by Topic No. 30 for evidence that is only related
to the present case by temporal proximity to the processing of

-8-

the contaminated beef.

Therefore, the period for Topic No. 30

shall be limited to the year 2007.
C. Over Breadth of Certain Topics
Cargill objects to the breadth of Topic Nos. 18, 23,
30, and 38 as seeking irrelevant information and as overly
burdensome.

Cargill also objects to Topic No. 25 on the ground

that it asks for detailed information regarding third parties
that were not affected by the ground beef from Cargill’s
facility.

Finally, Cargill objects to Topic Nos. 31 and 32 as

failing to provide the specificity required by Rule 30(b)(6)
which gives the opposing party notice of the areas of inquiry.
The Court will take each topic in turn.
Topic No. 18 seeks discovery regarding E. coli sampling
or tests.

Cargill objects to the breadth of the request which

seeks information from any United States “Cargill” establishment.
Because the contamination at issue in the present case was
isolated to Cargill Est. No.924A, Cargill argues that testing or
sampling at other facilities is irrelevant and, because of
Cargill’s considerable size, unduly burdensome.

GOPAC contends

that more stringent testing at other facilities would be evidence
that testing policies at Cargill Est. No.924A were inadequate and
therefore may be responsible for the contamination.
argument fails as a matter of logic:

This

the fact that Cargill

employed more stringent protocols elsewhere would not imply that

-9-

the protocols at Est. No.924A were inadequate.

However, as noted

above, other contamination around the same time that is traceable
to other suppliers is relevant.

Therefore, Topic No. 18 will be

limited to sampling or tests that indicated the possible presence
of E. coli O157:H7.
Topic No. 23 seeks discovery regarding communications
between Cargill and its other suppliers regarding “development,
effectiveness, implementation, operation, and the quality” of
plans and protocols for preventing contamination from entering
the supply chain.

Topic No. 30 seeks discovery regarding the

products exchanged between Cargill and its other suppliers whose
beef product moved through Cargill Est. No.924A around the same
time the contaminated beef was processed.

While the breadth of

the request covers vast amounts of business information that is
irrelevant to the present litigation, some information could
produce evidence that other suppliers may have provided the
contaminated beef.

Still, GOPAC’s request to depose a

representative on “all aspects of ‘Cargill’s’ business
relationship with [it’s suppliers]” is clearly too broad to
provide meaningful notice to Cargill.

While the breadth of these

topics cover potentially relevant information, it is the kind of
voluminous factual information that is better suited to a request
for the production of documents or interrogatories.

-10-

The massive quantity of raw data that Topic No. 23 and
Topic No. 30 purport to request is at the very least
extraordinarily burdensome considering the more efficient
alternatives for obtaining such information.

At most it is

requesting impossibly voluminous data from a deponent.

Both

topics fail to provide adequately specific notice to Cargill
regarding the information to be covered.

However, these topics

are not particularly susceptible to judicial narrowing on the
facts and arguments provided to the court.

Therefore, if GOPAC

intends to pursue these topics, it must narrow their scope to
exclude irrelevant information and the kind of voluminous raw
data that cannot be reasonably expected of a deponent.
Similarly, Topic Nos. 31 and 32 fail to “describe in
reasonable particularity the matters for examination”:
(31) All matters allegedly
supporting or providing the basis
for any of the allegations in
"Plaintiffs' Complaint and
"Cargill's" answers and
supplemental answers to "Greater
Omaha's" First and Second Set of
Interrogatories and Request for
Production of Documents to
Plaintiffs
(32) The allegations in "Greater
Omaha's" Counterclaim against
"Cargill" and "Cargill's" alleged
affirmative defenses to "Greater
Omaha's" Counterclaim.
Rather these topics purport to inquire on the full range of
issues involved in the entire litigation.
-11-

Therefore, Topic Nos.

31 and 32 must also be narrowed before the taking of the
deposition.
Topic No. 38 seeks detailed information regarding the
sale and distribution of Cargill’s products:
“Cargill's” sales history
(including the name and address of
the customer, date of sale, date of
shipment, date of receipt of
shipment, product code and product
description of the product sold,
the quantity and weight of each
product sold, and the date code,
serial number, package code, SKU
number, UPC number, "Best if Used
by" date, and "Packed / Chilled by"
date for each product sold), for
each person or entity to whom any
United States "Cargill"
establishment sold or distributed
any beef product during the period
of June 1, 2007 through November
31, 2007. (This includes, but is
not limited to, "Cargill's" sale or
distribution of any beef product to
Farmland Foods, Inc., Quandt's
Foodservice Distributors, Inc., The
Kroger Co., Rochester Meat Company
(Est. #M8999-P8999), Schnuck
Supermarkets, Inc., Sysco Newport
Meat Company, Inc. (Est.
#M4195-P4195), Toraji Restaurant,
and any other entity or person in
the States of Hawaii, Missouri, and
New York.)
GOPAC contends that such discovery is necessary to “ascertain if
other Cargill establishments . . . shipped meat that was subject
to the October 2007 recall.”

If meat subject to the recall came

from a facility that did not include GOPAC beef, the requested
information could indicate that the contaminated beef came from a
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different supplier.

This is of central relevance to basic

contentions of Cargill’s claims.

However, the information

intended for examination is contained in presumably voluminous
sales, inventory, and tracking records -- not the knowledge and
experience of a representative.

It is impossible that, even

after reviewing all the documents, any representative could speak
knowledgeably about the specific SKU numbers of a meat product on
which GOPAC decides to inquire at the deposition.

Therefore,

examination on Topic No. 38 will be limited to the general nature
and operation of Cargill’s sales, distribution, and tracking
processes.
Topic No. 25 requests detailed information “[f]or each
person who allegedly contracted E. coli O157:H7 from any product
involved in the ‘Recall.’”

This includes a number of individuals

who did not contract E. coli from a Cargill product or enter into
a settlement with Cargill.

Though potentially relevant, the

Federal Rules insist that burdensome production be avoided where
other less burdensome sources for the information are available.
Fed. R. Civ. P. 26(b)(2)©.

Here, it appears that detailed

information about third parties would be more conveniently -- and
more accurately -- provided by the third parties themselves.
GOPAC has not provided the Court any arguments as to why a
30(b)(6) deposition of Cargill is a reasonably efficient and not

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unreasonably burdensome avenue for obtaining the requested
information.
III. Motion to Compel
A. Electronically Stored Information
Cargill seeks an order from the Court compelling the
production of e-mails and other electronically stored information
that have allegedly been withheld.

However, Cargill has failed

to identify a specific e-mail or electronic record that GOPAC is
refusing to produce.

Rather, Cargill argues that the small

number of e-mails produced (25) evidences a lack of diligence in
production.

GOPAC has an obligation to promptly produce

information resulting from timely searches of all digital records
over which it has possession or control.

However, the Court

cannot compel the production of information that does not exist.
GOPAC argued before the Court that prior to 2011, it had no
central server on which e-mails were stored.

GOPAC has further

assured the Court that it has turned over all ESI that its
searches produced and continues to supplement as it finds
additional information.

GOPAC has also offered to search

available sources using search terms provided by Cargill, but
Cargill has refused to supply any additional terms.
Discovery on this matter has been ongoing since July of
2012.

It is unclear to the Court why ESI that has presumably

been in GOPAC’s possession since the start of discovery has not

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been fully produced.

To provide Cargill an adequate opportunity

to contest discovery of ESI, the Court will order GOPAC to
disclose the sources it has searched or intends to search and,
for each source, the search terms used.

The Court will also

order all ESI based on the current search terms be produced by
November 1, 2013.

However, given Cargill’s failure to point to

any specific information that has been withheld or additional
sources that have not been searched, no further action by the
Court is appropriate at this time.
B. Supplements to Interrogatories and Document Production
Requests
Cargill seeks an order compelling GOPAC to answer
Interrogatories 22-28, 30, and 35-38.

Cargill filed its first

set of interrogatories in October of 2012 and a second set of
interrogatories in February of 2013.

GOPAC’s initial response to

all of these interrogatories consisted almost entirely of a
promise to supplement its response as discovery continued.

At

the time this motion was filed, nine months after the first
filing and six months after the second filing, GOPAC had not
completed its responses.

GOPAC must file a response or state

that it does not have knowledge sufficient to answer these
interrogatories.

While the amended discovery deadline is not

until February 3, 2014, discovery is a recursive process which
benefits from prompt responses to early requests.

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GOPAC has had

ample time to gather the responsive information and form an
answer.

Likewise, GOPAC has agreed to supplement Document

Production Request Nos. 10, 36-38, 42, 49, and 50, implying that
it has no objections to these Requests.

Yet, the requests have

been pending since at least February of 2013.

Therefore, the

Court will order that GOPAC answer the interrogatories and
produce documents responsive to the non-controversial Document
Production Requests by November 1, 2013.
GOPAC has objected to Request No. 22 on the grounds
that the request is overly broad and requests information
protected by the attorney client privilege and/or the work
product doctrine.

GOPAC has objected to Request No. 24 on

similar grounds, arguing that the only relevant sampling and
procedures at GOPAC’s plants are those surrounding the allegedly
contaminated beef.

This is incorrect.

GOPAC’s counterclaim

alleges loss of business and other damages due to actions by
Cargill.

Information regarding the procedures and sampling for

the time frame requested could be used to dispute the cause or
the existence of the claimed damages.

GOPAC’s objections are

overruled, except as regarding privilege or work product
protection.
GOPAC has objected to handing over confidential tax
documents in response to Request No. 30.

The Court appreciates

the confidentiality of these records, but GOPAC has not provided

-16-

any reason why Cargill’s suggestion that the tax documents be
labeled “CONFIDENTIAL - ATTORNEY’S EYES ONLY” is insufficient to
protect confidentiality.

The Court will order that GOPAC turn

over the responsive tax documents with the appropriate label
affixed.

For these purposes ATTORNEY’S EYES ONLY refers only to

Cargill’s outside counsel.

At the close of the litigation,

Cargill must return or destroy all copies.
GOPAC has also objected to Request Nos. 51-54 on the
ground that the are over-broad, unreasonably burdensome, and
unlikely to produce relevant information.

The Court agrees that,

as written, the requests cover a massive breadth of documents,
only some of which are both relevant and non-privileged.

A

motion to compel on these requests is inappropriate.
Accordingly,
IT IS ORDERED:
1) The 1-day, 7-hour period designated by the Federal
Rules shall apply separately to each representative designated
for 30(b)(6) deposition.
2) The appearance of a witness as a 30(b)(6) designee
shall not affect either party’s right to take a deposition of
that witness in their individual capacity for the full duration
contemplated by the Federal Rules.

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3) Cargill’s request for an order compelling Cargill to
limit the number of topics in its 30(b)(6) deposition notice is
denied.
4) Cargill’s request for a protective order is denied
with respect to the content of Deposition Topic No. (34).
Cargill is free to make objections at the deposition to protect
confidential attorney-client communications and work product, but
Cargill must disclose any communications or work product that was
previously disclosed to a third party.
5) Inquiry under Topic Nos. 13, 14, and 30 shall be
limited to the year 2007.
6) Cargill’s request for more restrictive temporal
limits on Topic Nos. 18, 20, 23, 24, and 39 is denied.
7) Cargill’s representatives shall not be required to
disclose attorney impressions, conclusions, or opinions regarding
settlements with consumers of tainted beef at the 30(b)(6)
deposition.
8) Cargill shall be required to disclose any underlying
facts regarding consumers of tainted beef, the tainted beef which
the consumers received, and other facts related to the incidents
of tainted beef which resulted in settlements by Cargill.

Such

facts are discoverable regardless of whether Cargill has first
hand knowledge of the fact in its documents or through its

-18-

employees or whether such facts were gleaned from third parties
as part of the investigations which led to the settlements.
9) Inquiry under Topic No. 18 shall be limited to
sampling or testing that indicated the presence of E. coli
O157:H7 but shall not be limited to a single Cargill facility.
10) On or before September 23, 2013, GOPAC shall serve
a revised Notice to Take Rule 30(b)(6) deposition that contains
revisions to Topic Nos. 23, 30, 31 and 32 that appropriately
narrow their scope.

Alternatively, GOPAC may choose to withdraw

these topics.
11) Inquiry under Topic No. 38 shall be limited to the
general nature and operation of Cargill’s sales, distribution,
and tracking processes.
12) Inquiry under Topic No. 25 shall be limited to
individuals alleged to have contracted E. coli O157:H7 from a
Cargill product or which have settled with Cargill in relation to
‘the Recall.’
13) No later than September 30, 2013, GOPAC shall
disclose to Cargill the sources it has searched or intends to
search for ESI and, for each source, shall identify the search
terms used.
14) No later than November 1, 2013, GOPAC shall produce
ESI for all sources within its possession or control based on the
search parameters that it has already established.

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15) No later than November 1, 2013, GOPAC shall provide
its supplemental answers to Interrogatories Nos. 22-28, 30, and
35-38.
16) No later than November 1, 2013, GOPAC shall produce
its supplemental responses to Cargill’s Document Production
Requests Nos. 10, 36-38, 42, 49, and 50.
17) No later than November 1, 2013, GOPAC shall produce
all non-privileged materials responsive to Cargill’s Document
Production Request Nos. 22 and 24.
18) No later than November 1, 2013, GOPAC shall produce
a copy of responsive tax documents.

Such documents shall be

labeled “CONFIDENTIAL - ATTORNEY’S EYES ONLY.”

Cargill’s outside

counsel, upon receiving any documents labeled “CONFIDENTIAL ATTORNEY’S EYES ONLY,” will take steps to ensure that such
documents are not viewed by anyone other than Cargill’s outside
counsel in this matter.

Within 60 days of the close of

litigation, Cargill shall hand over any copies of these documents
to GOPAC or destroy them.

A file copy shall not be retained.

Within 10 days of destruction or return, Cargill shall certify to
GOPAC’s counsel that all copies have been returned or destroyed.

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19) Cargill’s request for an order compelling
production responsive to its Document Production Request Nos. 5154 is denied.
DATED this 11th day of September, 2013.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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