Turkey Processors Lose Subpoena for ‘Pre-Client’ Antitrust Files

The turkey bulk buyers leading antitrust litigation against top U.S. poultry processors beat two subpoenas for files created by investigators their lawyers hired before signing up any clients, when a federal magistrate in Chicago said the documents qualify as attorney work product.

Magistrate Judge Gabriel A. Fuentes ruled Wednesday for the “direct purchasers,” saying materials created during the case’s “pre-client” phase—when counsel was deciding whether to pursue the price-fixing claims—are shielded from discovery for several independent reasons.

Most importantly, the federal rule codifying work-product protections “must be read not in isolation, but against the backdrop of” the realities of complex civil litigation and the court precedents that “birthed” the doctrine, Fuentes found for the U.S. District Court for the Northern District of Illinois.

The subpoenas “amount to a raid” on “litigation files directly related to this action,” the judge wrote. “Complex circumstances like these force courts to tackle the challenge of complexity and not rest on a formalistic application of language.”

The ruling quashes a bid for documents reflecting interviews with confidential witnesses during the pre-litigation investigation by Hagens Berman Sobol Shapiro LLP and Lockridge Grindal Nauen PLLP, which had the idea for the lawsuit based on their involvement in two other price-fixing cases.

The consolidated dispute is part of a wave of cartel suits alleging similar schemes in various livestock and protein sectors, including the chicken, beef, pork, tuna, salmon, and egg markets. The poultry industry has been particularly hard hit, with a number of executives facing potential prison time.

Like most of the others, the turkey lawsuit alleges a conspiracy to inflate prices by illegally laundering secret commercial information through farm sector databases compiled by Agri Stats Inc.

In addition to Agri Stats, it initially targeted Tyson Foods Inc., Hormel Foods Corp., Cargill Inc., Butterball LLC, Perdue Farms Inc., Farbest Foods Inc., Cooper Farms Inc., Foster Farms LLC, House of Raeford Farms Inc. Tyson has reached settlements worth a combined $6.35 million.

In his ruling Wednesday, Fuentes pointed to “the pure reality” that lawyers contemplating a complex antitrust case “might need to investigate the claims before the identities of the claimants are actually known.”

Forcing them to turn over those materials would leave class action practice “seriously hampered,” the judge said.

There are other reasons to quash the subpoenas besides those policy rationales, which the U.S. Supreme Court “mentioned as concerns” in its seminal 1947 ruling on attorney work product, he found.

The federal rule itself is not as “crystal clear” as the poultry processors contend, Fuentes noted. He cited the qualifier “ordinarily” and language covering files prepared “for” a client, without any “restrictive temporal construction.”

“Even if the rule’s use of the word ‘ordinarily’ does not anticipate flexibility,” and even though counsel had not been “formally retained” at the time of the investigation, that “does not preclude this court from finding that the materials still were prepared ‘for’ the named plaintiffs,” the judge wrote.

The case is In re Turkey Antitrust Litig., N.D. Ill., No. 19-cv-8318, 3/16/22.