In re Pork Antitrust Litig.

In re Pork Antitrust Litig.

Opinion

ORDER ON MOTION TO COMPEL HORMEL AND HORMEL CUSTODIANS TO PRODUCE RESPONSIVE TEXT MESSAGE CONTENT

HILDY BOWBEER, United States Magistrate Judge

This matter is before the court on Class Plaintiffs' Motion to Compel Hormel to Produce Responsive Text Message Content and to Enforce Subpoenas to Hormel Custodians. [ECF No. 883.] Plaintiffs seek an order: (1) compelling defendant Hormel Foods Corporation to produce the text message content of its currently employed custodians, including backup content stored on cloud services; (2) declaring Hormel had at the outset of the litigation an obligation to image text message content from all of its custodians' mobile devices and cloud backups, and an accompanying order for Hormel to do so now; and to the extent necessary (3) enforcing the subpoenas to the Hormel custodians for the same material. For the reasons set forth below, the Court grants in part and denies in part the motion.

I. Background

Plaintiffs in this coordinated multidistrict litigation, which includes several putative plaintiff classes and [*39]  a number of "direct action plaintiffs," allege that Defendants, among America's largest pork producers and integrators, conspired to limit the supply of pork and thereby fix prices in violation of federal and state antitrust law. (See Oct. 20, 2020 Am. Mem. Op. & Ord. at 2 [ECF No. 520].) They allege Defendants were able to carry out the conspiracy in two ways: 1) by exchanging detailed, competitively sensitive, and closely guarded non-public information about prices, capacity, sales, volume, and demand through Agri Stats—a private service that gathers data from Defendants and produces market reports for paying subscribers; and 2) by signaling the need to cut production through public statements aimed at one another. (Id. at 6.) Plaintiffs allege that through these mechanisms, Defendants stabilized or increased the price of pork products from 2009 to the present.

In 2018, Class Plaintiffs requested that Hormel preserve data from personal cell phones of five company executives, James Snee, Jim Sheehan, Thomas Day, Steven Binder, and Cory Bollum, through forensic imaging. (Hormel Ex. 2 [ECF No. 929-1].) After objecting on several grounds, Hormel agreed to forensically image the phones. [*40]  (Hormel Ex. 3 [ECF No. 929-2]; Hormel Ex. 4 [ECF No. 929-3].)

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