The country’s top chicken producers failed in their bid to keep discovery in the sprawling price-fixing case against them paused, when a Chicago federal magistrate ruled that their arguments against remote depositions during the Covid-19 pandemic went too far.
“Courts are beginning to recognize that a ‘new normal’ has taken hold throughout the country in the wake of the Covid-19 pandemic that may necessitate the taking of remote depositions unless litigation is going to come to an indefinite halt until there is a cure or a vaccine,” Magistrate Judge Jeffrey T. Gilbert wrote Thursday.
“The parties and their counsel are going to have to have to adapt, make some choices, be creative, and compromise,” Gilbert said.
He gave proposed class action plaintiffs a green light to move forward with 18 depositions of agribusiness executives who they say can shed light on the alleged industry-wide scheme to jack up chicken prices through long-term supply reductions achieved by culling flocks of “breeder” hens.
The multidistrict antitrust lawsuit, which also includes nonclass claims by large retailers, recently resumed after being suspended outright for nearly a year while the Justice Department carried out a parallel investigation that led to its first four arrests earlier this month.
The civil suit is part of a wave of price-fixing cases involving livestock and protein—including, beef, pork, turkey, tuna, and salmon—amid calls from top Democrats to break up “big ag.”
The ex-CEO of Bumble Bee was also sentenced to more than three years in prison for price-fixing June 16, following a prosecution widely seen as a shot across the bow of top chicken and beef executives facing DOJ probes.
In his ruling on remote depositions Thursday, Gilbert said the chicken producers’ objections, “though significant and serious, are insufficient.”
Some of the arguments, such as those focused on potential tech problems, could be made against even in-person depositions, the judge noted.
But the bigger issue is that most of the objections will apply until the pandemic is over, and experts like Dr. Anthony Fauci have clearly warned that there’s no end in sight, Gilbert said.
Delaying the decision on remote depositions for a few months, as the agribusinesses requested, would be “neither practical nor, in the court’s judgment, wise,” the judge wrote. “These depositions will need to be taken at some point.”
Gilbert refused to “stay all depositions that cannot proceed by agreement” pending a cure, vaccine, or herd immunity.
But he cautioned that the decision isn’t “a blanket ruling that the Covid-19 pandemic alone justifies the taking of remote depositions in all cases and under all circumstances.”
The case is In re Broiler Chicken Antitrust Litig., N.D. Ill., No. 16-cv-8637, 6/25/20.
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