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In re Fresh and Process Potatoes Antitrust Litigation

United States District Court, D. Idaho

January 31, 2014



B. LYNN WINMILL, District Judge.


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. 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.


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.)

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 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, ยง 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 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 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 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 ...

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