Judge Will Not Compel Defendants to Produce Some Documents in Peanut Antitrust Suit

On Friday, Eastern District of Virginia Judge Lawrence R. Leonard denied a motion from D&M Farms’ that sought for the defendants, including Birdsong Corporation and Olam Peanut Shelling Company, to be compelled to provide certain documents in an antitrust case. The farm, later that day, filed another motion and memorandum asking the court to compel Birdsong to produce separate documents.

The plaintiffs in the case alleged that Birdsong Corporation, Golden Peanut Company, LLC,  and Olam Peanut Shelling Company, Inc. conspired to fix the price that farmers are paid for Runner peanuts.

The judge in one order from Friday granted the plaintiff’s request that Birdsong be compelled to “collect and review the back-up archives associated with Birdsong’s document custodian’s cell phones.” This was based on the plaintiff’s argument that Golden Peanuts produced more text messages than Birdsong so, likely, the later has more text messages than those submitted, however, the order recognizes that texting and deletion habits, along with phone storage capacity, could vary and cause the difference.

The judge denied requests for Birdsong to be compelled to produce a witness’s personal journal entries which were ordered not relevant to the case and requests for them to provide all of its Document Custodian’s Custodia documents.

The plaintiffs in a motion and memorandum filed on Friday claimed that Birdsong wrongfully claims emails are protected by attorney-client privilege which are between non-attorney employees but discuss a “company antitrust presentation” and other documents. The motion said the documents discuss Birdsong’s antitrust and price-fixing policies and claimed “Birdsong believes it can withhold these documents because the underlying antitrust guidance presentation was generated by an attorney. This expansive view of the attorney-client privilege urged by Birdsong is not supported by any authority.”

An earlier motion to compel Birdsong to present documents was granted by the judge.

In a second order from Friday, the judge denied the plaintiff’s motion to compel deadlines for production of documents for Olam, another defendant, saying there was not a “genuine dispute” between the plaintiff and Olam. The court backs its decision by saying the company has “worked diligently to meet its discovery obligations since becoming a defendant” and notes that Olam has made offers to the Plaintiff to speed up discovery in the case. The document said that a previous motion to expedite briefing, which was filed with the plaintiff’s motion, was denied based on Olam’s response.

D&M Farms and additional plaintiffs are represented by Durrette Arkema Gerson & Gill; Lockridge Grindal Nauen P.L.L.P., Freed Kanner London & Millen LLC; and Spector Roseman & Kodroff, P.C. Birdsong is represented by Kaufman & Canoles; Golden Peanut Company is represented by Kirkland & Ellis; and Olam is represented by Latham & Watkins.