Defendant Says Kroger’s Request to Avoid Discovery in Chicken Antitrust Suit is “Extreme”

On Monday, Sanderson Farms responded to an opposition from The Kroger Co. and Save Mart Supermarkets, asking that certain plaintiffs not be required to submit discovery of benchmarking services as part of the ongoing consolidated chicken antitrust suit in the Northern District of Illinois. 

The 21-page reply was partially redacted. According to the filing, the plaintiffs in the two individual suits cited in the response, known as the Kroger plaintiffs, argued that they were “differently situated” and requested a protective order from some discovery requests. These plaintiffs began two of many lawsuits alleging that companies producing broiler chickens, along with Agri Stats which provided data to the various companies, artificially raised the price they paid for broiler chickens. 

Sanderson Farms said the plaintiff supermarkets “cannot be protected from complying with their own agreement, or from the basic discovery process of a lawsuit that they chose to bring.” The defendant said the plaintiffs were exaggerating and that the facts of the case do not support a protective order, or an opposition to the discovery request. 

The defendant claimed that it and other defendants held the right to challenge the plaintiff’s production of documents, including those regarding trade association and benchmarking participation. It accused the Kroger plaintiffs of “unjustifiably refus(ing) to provide the limited discovery Defendants have requested on the eight highly-relevant additional trade associations, or to consent to the third parties NPD Group, Nielsen, iRi and IHS Markit negotiating with Defendants.” 

Additionally, Sanderson argued that the Kroger Plaintiffs “mischaracterized” the agreement between the parties in order to create harm, but that the discovery would not harm the plaintiffs. The reply said that the opposition from the plaintiffs did not show harm or prejudice in the discovery requests. 

Sanderson Farms, represented by Kirkland & Ellis LLP, asked the court to deny the Kroger plaintiffs’ request and order them to comply with the defendant’s motion to compel discovery. 

The Kroger plaintiffs are represented by Kenny Nachwalter.