United States of America et al v. Dean Foods Company

Filing 54

ORDER signed by Judge J P Stadtmueller on 10/8/10 granting 33 defendant's Motion to Compel Answer to the First Interrogatory of Dean Foods Company; the plaintiffs shall respond to defendants First Interrogatory within 30 days from the date of this order. See Order. (cc: all counsel) (nm)

U n i t e d States of America et al v. Dean Foods Company

D o c . 54

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN
____________________________________________ U N IT E D STATES OF AMERICA, S T A T E OF W IS C O N S IN , STATE OF ILLINOIS, a n d STATE OF MICHIGAN, P la in t iffs , v. D E A N FOODS COMPANY, D e fe n d a n t. ____________________________________________ ORDER T h is matter is before the court on defendant's Motion to Compel a Discovery R e s p o n s e to the First Interrogatory of Dean Foods Company ("Dean"). (Docket #33). T h e plaintiffs oppose the motion, arguing that Dean's Interrogatory requesting the id e n titie s of individuals and entities interviewed by the plaintiffs and all relevant fa c tu a l information obtained from these interviews is improper because it seeks p ro te c te d attorney work-product. B AC K G R O U N D P la in tiffs allege in this antitrust action that Dean violated Section 7 of the C la y to n Act, 15 U.S.C. § 18, in its acquisition of two fluid-milk processing plants o w n e d by one of its competitors, Foremost Farms USA. (Compl. ¶ 1). The United S ta te s opened an antitrust investigation into this transaction in April 2009 and in ve s ti g a te d the competitive effects of the acquisition over several months. (Pls.' R e s p . to Mot. to Compel a Disc. Resp. to Def.'s Interrog. No.1, 2-3). During the Case No. 10-CV-59

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in ve s tig a tio n , the government obtained documents and deposition testimony from D e a n employees and third parties. Id.1 On January 22, 2010, the plaintiffs filed their C o m p la in t. (Docket # 1). On June 16, 2010, Dean served its First Interrogatory. The in te rro g a to ry requested the following information: Id e n tify each of the individuals and entities interviewed by each of the P la in tiffs (either together or independently) pursuant to the Investigation o f the challenged Transaction and provide all factual information o b ta in e d from these individuals and entities through such interviews th a t is relevant to Plaintiffs' claims in this case. (First Interrog. of Def. 1). Plaintiffs objected and defendant moved to compel. P la in tiffs ' main argument is that Dean's broad request for a witness-by-witness a c c o u n t of all facts obtained in witness interviews would necessarily reveal protected w o rk -p ro d u c t. (Pls.' Resp. to Mot. to Compel 10). The defendant counters that it d o e s not seek counsels' work-product but rather the relevant facts garnered from the w itn e s s interviews that support plaintiffs' claims. (Def.'s Reply in Supp. of Mot. to C o m p e l 1). AN AL Y S IS U n d e r Federal Rule of Civil Procedure 26, "parties may obtain discovery re g a rd in g any non-privileged matter that is relevant to any party's claim or defense." F e d . R. Civ. P. 26(b)(1). The court enjoys significant discretion in ruling on a motion

The plaintiffs stated in their Response to the Motion to Compel that they conducted approximately 170 interviews of third parties during their pre-complaint investigation. In Plaintiffs' Objection and Response to First Interrogatory of Defendant, plaintiffs note that their claim of privilege and protection of pretrial materials extends to 203 interviews with third parties dating from 4/23/2009 through 6/30/2010. (Pls.' Obj. and Resp. to Def.'s Interrog. No.1, 4-5).

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to compel. Gile v. United Airlines, 95 F.3d 492, 495-96 (7th Cir. 1996). This is b e c a u s e a district court is in the best position to decide the proper scope of d isc o ve ry and settle any discovery disputes. Id. at 495. Thus, the court may use its b ro a d discretion to carry out the "strong public policy in favor of disclosure of relevant m a teria ls ." Patterson v. Avery Dennison Corp., 281 F.3d 676, 681 (7th Cir. 2002) (c itin g Fed. R. Civ. P. 26(b)(2)). A party may seek an order to compel discovery if an opposing party fails to r e s p o n d to discovery requests or has provided evasive or incomplete responses. F e d . R. Civ. P. 37(a)(1)-(4). The party objecting to a discovery request bears the b u rd e n in showing why the request is improper. Kodish v. Oakbrook Terrace Fire P ro te c tio n District, 235 F.R.D. 447, 450 (N.D. Ill. 2006); see also Sherman Park C o m m u n ity Ass'n v. W a u w a to s a Realty Co., 486 F. Supp. 838, 845 (E.D. W is . 1 9 8 0 ). In ruling on a discovery motion, courts consider "the totality of the

c ir c u m s t a n c e s , weighing the value of material sought against the burden of providing it, and taking into account society's interest in furthering the truth-seeking function in the particular case before the court." Patterson v. Avery Dennison Corp., 281 F .3 d 676, 681 (7th Cir. 2002) (internal quotation omitted). A. The Work-Product Doctrine

T h e attorney work-product doctrine "protects documents prepared by a tto rn e ys in anticipation of litigation for the purpose of analyzing and preparing a c lie n t's case." Sandra T.E. v. South Berwyn School District 100, 600 F.3d 612, 618

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(7 th Cir. 2010) (citing Fed. R. Civ. P. 26(b)(3)(B); United States v. Nobles, 422 U.S. 2 2 5 , 238-39 (1975); United States v. Smith, 502 F.3d 680, 689 (7th Cir. 2007)). The w o rk -p ro d u c t doctrine is designed to protect an attorney's mental impressions and o p in io n s against disclosure and to limit the circumstances in which attorneys may p ig g y - b a c k on the research and thinking of their more diligent adversaries. See H ick m a n v. Taylor, 329 U.S. 495, 510 (1947) (rejecting "an attempt, without p u rp o rte d necessity or justification, to secure written statements, private m e m o ra n d a , and personal recollections [of witness interviews] prepared or formed b y an adverse party's counsel in the course of his legal duties."); Sandra T.E., 600 F .3 d at 618. Nevertheless, the work-product doctrine is intended to guard only against d ivu lg in g the attorney's legal impressions and strategies. The doctrine cannot be u s e d to protect the underlying facts found within work-product. See Hickman, 329 U .S . at 507 ("Mutual knowledge of all the relevant facts gathered by both parties is e s s e n t ia l to proper litigation. To that end, either party may compel the other to d is g o rg e whatever facts he has in his possession."); Resolution Trust Corp. v. D a b n e y , 73 F.3d 262, 266 (10th Cir.1995) (holding that the work-product doctrine d o e s not protect facts concerning "the creation of work-product or facts contained w ithin work-product."); Bogosian v. Gulf Oil Corp., 738 F.2d 587, 595 (3d Cir. 1984) ("[W ]he re the same document contains both facts and legal theories of the attorney, the adversary party is entitled to discovery of the facts."). Therefore, in making a

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d is c o v e r y ruling of this sort, the court must strike a balance between protecting a tto rn e ys ' work-product and allowing for liberal discovery of the relevant facts as is re q u ire d by the Federal Rules of Civil Procedure. Although plaintiffs argue they are merely trying to protect classic attorney w o r k -p r o d u c t , they are ultimately attempting to extend work-product protection to the fa c ts which form the basis of their antitrust lawsuit. Dean is not requesting that the p la in tiffs turn over their attorneys' memoranda or notes resulting from the third-party in te r v ie w s . Indeed, the plaintiffs are clearly not required to turn over such

d o c u m e n ts since this type of information involves the mental impressions protected b y the work-product doctrine. Fed. R. Civ. P. 26(b)(3). Rather, Dean seeks only the id e n titie s of interviewees and the facts obtained from the interviews that form the b a s is of the plaintiffs' claims. Because the court finds that work-product protection d o e s not extend to the facts that form the basis of the plaintiffs' claims, we reject the p la in tiffs ' work-product objection. B. Plaintiffs' Objections

T h e court first rejects plaintiffs' work-product objection because it m is c h a ra c te riz e s Dean's discovery request and, as a consequence, confuses the s c o p e of the doctrine. Plaintiffs find the First Interrogatory objectionable because th e y believe it asks for a witness-by-witness account of all facts obtained in past and fu tu re witness interviews. They argue that because witness-by-witness interview s u m m a rie s would reveal the mental impressions of counsel, the First Interrogatory

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s e e k s classic opinion work-product and the motion to compel should be denied. (P ls .' Resp. to Mot. to Compel 10). Plaintiffs support their claim of work-product p ro te c tio n by citing Hickman v. Taylor, the Supreme Court case that first recognized th e doctrine. Plaintiffs contend that in Hickman, the Supreme Court held that the in fo rm a tio n elicited in third-party interviews, whether factual or otherwise, is attorney w o rk -p ro d u c t and thus not subject to discovery. (Pls.' Resp. 10). In Hickman, the S u p re m e Court did state that "under ordinary conditions, forcing an attorney to re p e a t or write out all that witnesses have told him and to deliver the account to his a d ve rsa ry gives rise to dangers of inaccuracy and untrustworthiness." Hickman, 329 U .S . at 513. However, Hickman also held that "where the party seeking discovery c a n establish that relevant and non-privileged facts remain hidden in an attorney's file " and where production of those facts is essential to the preparation of the party's c a s e , discovery of those facts is proper. Id. at 511. In this case, Dean does not request that the plaintiffs' attorneys repeat or write o u t everything the interviewed witnesses revealed, as was the situation in Hickman.2 D e a n simply asks for the witnesses' identities and all relevant factual information o b ta in e d through these interviews. This is the kind of factual information that is ro u tin e ly sought during discovery. See Fed. R. Civ. P. 26(a),(b). Moreover, the

The discovery request in Hickman requested that the opposing party attach "exact copies of all [witness] statements if in writing, and if oral, set forth in detail the exact provisions of any such oral statements or reports." Hickman, 329 U.S. at 499. The Supreme Court took issue with this request because it would force the attorney to testify to what he remembered or what he saw fit to write down regarding any remarks made in the interviews. Id. at 513.

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in te rro g a to ry does not delve into the attorneys' impressions about the facts obtained, a n d it does not seek legal conclusions, opinions or legal theories developed in a n tic ip a tio n of litigation.3 T h e plaintiffs next contend that the facts contained in protected attorney notes a n d memoranda are so inextricably intertwined with opinion work-product that they c a n n o t effectively be segregated. (Pls.' Resp. 11). They explain that answering D e a n 's interrogatory with facts obtained from third-party interviews will reveal a s p e c ts of plaintiffs' investigative and litigation strategies, which are protected areas o f classic work-product. (Pls.' Resp. 12). Again, this argument is flawed because it re p re s e n ts a retreat from the philosophy underlying the discovery rules ­ that parties m a y discover all relevant non-privileged facts upon which their adversaries base th e ir allegations. Fed. R. Civ. P. 26(b)(1); see Bogosian v. Gulf Oil Corp. 738 F.2d a t 595. Following the plaintiffs' logic would mean that any time a party wishes to s h ie ld a fact from discovery, it could simply have its attorney interlace the fact with w o rk -p ro d u c t. This was never the intent of the work-product doctrine. The court also notes that the plaintiff will undoubtably rely on certain of the fa c ts obtained from its third-party interviews in supporting its claims against Dean. S e e Bradbury Decl. Ex. 6 (Docket #36-6). Fairness considerations arise when a

The court recognizes the importance of guarding against use of the interrogatory as a backdoor to protected attorney work-product. Fortunately, the nature of interrogatories guards against such a misuse of the discovery process. Interrogatories allow the responding party time to craft a response with particular care. In cases involving work-product concerns, the answering party has the opportunity to ensure that its counsel's mental impressions, strategies, and conclusions are not reflected in the answer.

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p a rty attempts to use a privilege, such as the work-product doctrine, as both a sword a n d a shield. Cf. In re Grand Jury Proceedings, 219 F.3d 175 (2d Cir. 2000) (ruling th a t a party cannot "affirmatively rely on privileged communications to support its c la im or defense and then shield the underlying communication from scrutiny by the o p p o s in g party."). Similarly, the plaintiffs in this case cannot selectively assert facts o b ta in e d in the third-party interviews to support their antitrust claims against Dean w h ile at the same time invoke the work-product doctrine to shield the same or a d d itio n a l facts obtained during the interviews. In United States v. Dentsply, 187 F .R .D . 152, 156 n. 2 (D. Del. 1999), the court was confronted with a similar situation in an antitrust lawsuit and found that the intent of the work-product doctrine was n e ve r to allow a party to "manipulate the timing of the revelation of facts it has g a th e re d and upon which it intends to rely to suit its purposes." Though the court is n o t bound by the Dentsply court's precedent, it does agree with its conclusion in this re s p e c t. Plaintiffs claim that they have not selectively disclosed only those facts s u p p o rtive of their case and insist that their initial disclosures produced all relevant "d o c u m e n ts , data, transcripts, and declarations" obtained from third parties re g a rd le s s of whether they were helpful to the plaintiffs' case. (Pls.' Resp. 17). The c o u rt would remind plaintiffs that the scope of relevancy under Rule 26 is broad. "R e le va n t information need not be admissible at the trial if the discovery appears re a s o n a b ly calculated to lead to the discovery of admissible evidence." Fed. R. Civ.

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P . 26(b)(1); see also Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 350-51 (1 9 7 8 ) (holding that relevant information "has been construed broadly to encompass a n y matter that bears on, or that reasonably could lead to other matter [sic] that c o u ld bear on, any issue that is or may be in the case"). Here, Dean's motion to c o m p e l seeks relevant facts obtained from third-party interviews that were not listed in the initial disclosures. As such, the court requests that the plaintiffs reconsider th e ir assertion that all relevant information was already disclosed in their initial d is c lo s u re s . The court further rejects plaintiffs' argument that facts obtained from in te rvie w s not listed in the initial disclosures are not discoverable because the facts h a ve been memorialized in memoranda that are privileged and not required to be p r e s e rve d by stipulation of the parties. If the facts are relevant to the plaintiffs' c la im s and not privileged themselves, then they should be disclosed. Plaintiffs also argue that if the defendant's interrogatory does not seek opinion w o rk -p ro d u c t, which receives special protection under Federal Rule of Civil P ro c e d u r e 26(b)(3)(B), then it seeks fact work-product. Plaintiffs contend that fact w o rk -p ro d u c t is protected by Rule 26(b)(3)(A) and is defined as "written or oral in fo rm a tio n transmitted to [an] attorney and recorded as conveyed." (Pls.' Resp. 9, 1 4 ) (quoting In re Columbia/HCA Healthcare Corp. Billing Practices Litig., 293 F.3d 2 8 9 , 294 (6th Cir. 2002)). They claim that fact work-product is protected from d is c o ve ry unless the movant shows a "substantial need for the information and c a n n o t obtain equivalent materials without undue hardship." (Pls.' Resp. 16).

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P la in tiffs then argue that Dean has not made such a showing. (Pls.' Resp. 16). As d is c u s s e d previously, Dean's interrogatory certainly does not seek opinion workp ro d u c t. The court also finds that Dean does not seek fact work-product as the p la in tiffs have defined it.4 First, Dean's interrogatory does not ask for "written or oral in fo rm a tio n transmitted to the plaintiffs' attorney and recorded as conveyed." The " r e c o rd e d as conveyed" language suggests that fact work-product consists of a w r i tt e n and verbatim record of the transmitted information. The discovery request a t issue does not require the plaintiffs' attorneys to hand over their notes or m e m o ra n d a in which they memorialized the interviewees' statements. Dean simply a s k s that the relevant facts obtained from the interviewees be disclosed. F u rth e rm o re , the plaintiffs' reliance on Rule 26(b)(3)(A) does not forward their a rg u m e n t for protection based on fact work-product because, by its plain language, R u le 26(b)(3)(A) applies only to the production of documents and tangible things. T h is rule does not serve as a basis for refusal to respond to discovery requests s e e k in g disclosure of facts by interrogatories. Because the court finds that the d e f e n d a n t's interrogatory does not seek fact work-product as defined by the p la in tiffs , or work-product as protected in Rule 26(b)(3)(A), the court must also reject p la in tiffs ' contention that Dean was required to make a showing of substantial need a n d inability to obtain equivalent materials without undue hardship.

Though other circuits have distinguished between fact and opinion work-product, this court finds no binding authority in the Seventh Circuit that has expressly done so. Therefore, the court declines to make a distinction; however, the court will address the plaintiffs' arguments accordingly.

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F in a lly , the plaintiffs argue that policy considerations support denying the d e fe n d a n t's motion to compel. They claim that allowing Dean to discover the

re le va n t facts from the hundreds of interviews conducted by plaintiffs will deter a tto rn e ys charged with enforcing antitrust laws from gathering and recording n e c e s s a ry information, as well as deter third parties from providing this information to the attorneys. W h ile these concerns are not unfounded, the court still finds that th e interest in full disclosure of all relevant non-privileged facts outweighs the policy c o n s id e ra tio n s presented by the plaintiffs. For all the reasons set forth above, the court is unpersuaded that Dean's in te r ro g a to r y invades the work-product of the plaintiffs' attorneys. The work-product d o c trin e does not protect plaintiffs' from Dean's discovery request because the First In te rro g a to ry asks for facts and not the attorneys' mental impressions or c o n c lu s io n s . The interrogatory does not require a complete recitation of statements a witness may have provided to counsel. Plaintiffs are only required to provide any fa c tu a l information obtained in the interviews that is relevant to the plaintiffs' claims. F u rth e rm o re , plaintiffs have the added benefit of being able to tailor the answer to D e a n 's interrogatory in a way that does not reveal their attorneys' mental im p r e s s io n s or conclusions. Therefore, plaintiffs must respond to Dean's First In te rro g a to ry. Accordingly,

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IT IS ORDERED that defendant's Motion to Compel Answer to the First In te r ro g a to ry of Deans Food Company (Docket #33) be and the same is hereby G R AN T E D ; the plaintiffs shall respond to Dean's First Interrogatory within thirty (30) d a ys from the date of this order. Dated at Milwaukee, W is c o n s in , this 8th day of October, 2010. BY THE COURT:

J .P . Stadtmueller U .S . District Judge

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