IN RE: FRESH AND PROCESS POTATOES ANTITRUST LITIGATION. THIS DOCUMENT RELATES TO: ALL ACTIONS
ORDER REGARDING DEPOSITION PROTOCOL
B. LYNN WINMILL, Chief District Judge.
IT IS HEREBY ORDERED:
I. NUMBER OF DEPOSITIONS
A. Direct Purchaser Plaintiffs, Indirect Purchaser Plaintiffs, and Associated Wholesale Grocers ("AWG") (collectively "Plaintiffs") collectively may depose no more than 80 percipient witnesses who are current employees of all Defendants, including no more than seven (7) percipient witnesses who are current employees of any single defendant group, as part of the joint, coordinated discovery in this case. Defendants shall produce for deposition the specific percipient witnesses employed by them. Defendants may collectively depose each natural person named plaintiff or class representative and a maximum of seven (7) percipient witnesses of each Direct Purchaser Plaintiff and of AWG. The following shall be considered a single corporate entity for purposes of this protocol: the Wada Group (Albert Wada, Wada Farms, Inc., Wada Farms Potatoes, Inc., Wada Farms Marketing Group, LLC, Wada-Van Orden Potatoes, Inc., Cedar Farms, Inc., Wada Family, LLC, and ProFresh, LLC), the Cornelison Group (Cornelison Farms, Inc. and Keith Cornelison), and the Wahlen Group (KCW Farms, Inc. and Kim Wahlen d/b/a Kim Wahlen Farms).
B. Plaintiffs collectively may take up to 14 hours of Rule 30(b)(6) depositions of each Non-Cooperative Defendant and up to 18 hours of Rule 30(b)(6) depositions of each Cooperative Defendant, specifically United Potato Growers of Idaho, Inc., United Potato Growers of America, Inc., and United II Potato Growers of Idaho, Inc., as part of the joint, coordinated discovery. In addition, Indirect Purchaser Plaintiffs may seek leave of the Court to take Rule 30(b)(6) depositions of up to six (6) Defendants of Indirect purchaser Plaintiffs' choice regarding downstream issues. Each deposition shall be limited to 3½ hours. Defendants identified in Indirect Purchaser Plaintiffs' request shall be entitled to file a response within five (5) business days. Indirect Purchaser Plaintiffs' request for leave shall identify the Defendants they seek to depose, the basis for wanting to depose the particular Defendants on downstream issues, the specific subject areas for the deposition, potential individuals with knowledge of the subject matter, and any other facts to assist the Court in determining whether there is a reasonable basis to allow the depositions to proceed. Defendants collectively may take up to 14 hours of Rule 30(b)(6) depositions of each Direct Purchaser Plaintiff and of AWG. The parties shall meet and confer about scheduling of Rule 30(b)(6) depositions in accordance with Section IV below.
C. This protocol does not apply to depositions of experts or depositions of records custodians regarding authentication of documents.
D. In connection with Defendant Potandon Produce L.L.C.'s ("Potandon") counter-claim against AWG, Potandon may depose a maximum of three (3) additional percipient witnesses of AWG, and may take up to 3.5 hours of additional Rule 30(b)(6) depositions of AWG. Similarly, in connection with Potandon's counter-claim, AWG may depose a maximum of three (3) additional percipient witnesses of Potandon, and may take up to 3.5 hours of additional Rule 30(b)(6) depositions of Potandon.
E. The above limitations on the number of depositions are presumptive only. The purpose of these presumptive limits is to encourage the judicious use of depositions, not to arbitrarily restrict access to evidence. The number of depositions permitted in this litigation may be expanded by stipulation, or for good cause, upon motion to the Magistrate Judge or the Court.
F. This order does not limit any party's right to object to or seek a protective order with respect to any deposition noticed in this case. In addition, the presumptive number of depositions is without prejudice to any party seeking to expand or limit further the number of depositions.
II. DEPOSITION PROCEDURES
A. All deposition limitations may be modified by the Magistrate Judge or the Court for good cause or by agreement.
B. Absent the agreement of the parties or leave of the Court, (a) no more than two depositions taken by Plaintiffs and two depositions taken by Defendants may be scheduled on each day, and (b) no more than one witness for any particular party may be scheduled each day. Absent consent of all parties and the witness, no depositions may be scheduled on Saturdays, Sundays, November 28-29, 2013, December 24-26, 2013, or January 1, 2014.
C. Depositions jointly noticed by Plaintiffs or jointly noticed by Defendants will be limited to 7 hours of direct examination, unless the parties otherwise agree, or the Court issues an order based on a showing of good cause. In the event a party cross notices a deposition first noticed by an opposing party, the deposition shall be scheduled for an additional consecutive day of 7 hours allocated to all cross-movants of the cross-noticing side collectively, unless a different arrangement is agreed to by the parties in advance or ordered by the Magistrate Judge or the Court for good cause. Counsel for a witness or for the Defendant that is the witness's current or past employer may examine the witness for up to an addition hour at the conclusion of direct examination. If counsel for the witness's current or past employer conducts re-cross examination, then the counsel who conducted the direct examination shall be entitled to rebuttal examination of the witness for approximately the same amount of time as the re-cross examination.
D. A witness may be deposed only once in these proceedings unless (i) a witness properly revokes an earlier assertion of the Fifth Amendment, (ii) the parties otherwise agree, or (iii) upon order of the Court or the Magistrate Judge based on a showing of good cause. AWG may seek leave of the Court to re-notice corporate representative witnesses under Rule 30(b)(6) for deposition on topics related specifically to AWG's claims. Upon service of a subsequent notice of deposition under Rule 30(b)(6), the receiving party reserves its right to object to or seek a protective order of AWG's supplemental notice.
E. Absent the agreement of the parties or leave of the Court, the deposition of individuals whose depositions are being taken as both percipient witnesses and as corporate representatives under Rule 30(b)(6) shall presumptively be taken on the same date(s), if the recipient of a Rule 30(b)(6) notice provides the noticing party with the name(s) of the individuals who are designated to testify on behalf of the corporation the later of 30 days before the date(s) of the deposition or seven (7) business days after receipt of the request for the deposition. Rule 30(b)(6) depositions solely on topics ...