*1 This matter is before the Court on the End-User Consumer Plaintiffs' Motion to Compel Disclosure and Request for Leave to Issue Preservation Subpoenas to Halt Routine Destruction of Critical Data by Non-Parties [354]. In their motion, the End-User Plaintiffs ask the Court to (1) grant leave for the End-User Plaintiffs to serve document preservation subpoenas on some of Defendants' customers and (2) order Defendants to produce certain information to the End-User Plaintiffs that they need to prepare and serve the subpoenas. Id. at 1.[1] For the reasons stated below, the motion is denied without prejudice.

The End-User Plaintiffs effectively are seeking leave to blanket what easily could amount to hundreds or more of Defendants' customers with document preservation subpoenas that require the preservation of large amounts of transaction-level data for potentially thousands of products spanning roughly a decade. To permit them to do so, they have asked the Court to order Defendants to provide a great deal of information about their customers and their sales to those customers. According to the End-User Plaintiffs, Defendants should produce: “For each year, each of your customer's names, phone number(s), and address(es); the UPC, SKU, product number, or other unique purchaser-specific identifier, and associated product description for each type of Broiler sold to each customer, and respective unit sales to each customer.” [355 at 9].[2] The End-User Plaintiffs say they need the information in part to establish ascertainability of the class, to provide notice to class members (if a class is certified), and to distribute compensation (if they prevail). But the main reason the End-User Plaintiffs want transaction-level information from Defendants' customers is to establish to what extent any overcharges were passed-through to end-users. The End-User Plaintiffs contend this information will be necessary to show at the class certification stage that the pass-through can be determined on a classwide basis and, if there is a finding of liability, to prove up the End-User Plaintiffs' damages.

Defendants argue producing the information the End-User Plaintiffs want from them and allowing the End-User Plaintiffs to serve document preservation subpoenas on their customers will be extremely burdensome, on them and their customers, and will likely require the disclosure of confidential information about their businesses and their customers. [377 to 377-7]. Defendants also maintain it is not proportional to the needs of the case to impose such burdens at this stage of the litigation. So, they request that service of any subpoenas to their customers be postponed until the Court rules on their pending motions to dismiss. [376 at 9].

*2 As noted, the End-User Plaintiffs want to issue document preservation subpoenas to some undefined but large percentage of Defendants' customers. In their opening brief, the End-User Plaintiffs sought to subpoena customers comprising 70% of each Defendant's Broiler sales by year. [355 at 9]. In response, Defendants said this would include hundreds (or, in Defendant Tyson Foods, Inc.'s case, thousands) of customers for each Defendant. [377 to 377-7]. In their reply, the End-User Plaintiffs disavowed their suggested 70% percentage and instead suggest Defendants tell them how many customers comprise 40%, 50%, and 60% of their sales. [381 at 5]. The End-User Plaintiffs suggest they would limit their subpoenas to that reduced cohort but that still comprises a very large number of third-party businesses in view of the fact that there are 14 named Defendants in this case.

The document preservation subpoenas proposed by the End-User Plaintiffs cover a broad swath of data. They would direct Defendants' customers to preserve all transaction-level purchase data reflecting purchases from Defendants by Defendants' customers; all transaction-level sales data reflecting sales by Defendants' customers to distributors, retailers, or end-users; and all transaction-level sales data reflecting purchases from Defendants' customers by end-users. [355 at 11]. Transaction-level data, as further defined by the End-User Plaintiffs, ranges from invoice numbers to store/warehouse locations to end users' names, addresses, phone numbers, and email addresses. Id. The End-User Plaintiffs want this information preserved for all sales/purchases involving products encompassed in its definition of “Broilers.” An employee of Tyson says this definition encompasses more than 5,900 product SKUs (Stock Keeping Units) just during the three-year period from 2014 to 2016. [377-6, ¶ 4]. The temporal scope of the End-User Plaintiffs' request likewise is broad, seemingly stretching from January 1, 2006 to December 31, 2016. See [355 at 4] (stating the End-User Plaintiffs asked Defendants to identify their customers from this timeframe). As this description illustrates, the subpoenas that the End-User Plaintiffs want to serve are broad, requiring a large number of Defendants' customers to preserve substantial amounts data spanning more than a decade.

The information from Defendants and their customers that is implicated by the present motion appears to be substantially broader than what the End-User Plaintiffs said they were concerned about during the hearing held on February 24, 2017. At that hearing, during a colloquy with the Court, counsel for the End-User Plaintiffs represented that they essentially wanted Defendants' customers to preserve information about price relevant to this antitrust case. See [336 at 47] (Court: “And by ‘transactional data,’ you mean price, right, the price at which the product was bought and sold, correct?” Counsel: “That's exactly right.”). The End-User Plaintiffs' counsel also represented that they would send document preservation subpoenas only to the top 20 or 25 customers of each Defendant. See id. at 46 (Court: “You want ... the defendants to identify, you know, up to their 20—let's say their 25 top customers so that you can serve those people with document preservation subpoenas? Is that what we are talking about?” Counsel: “That's exactly right.”). Likewise, the End-User Plaintiffs did not indicate that they would want more than the names and contact information of Defendants' customers. The End-User Plaintiffs' counsel, Defendants' counsel, and the Court continually referred to nothing more than a “list” of Defendants' top customers. Id. at 47-49. In other words, the relief that the End-User Plaintiffs now are seeking from the Court is substantially broader and more burdensome than the relief the Court, at least, understood them to want based on their representations during the hearing on February 24.

*3 There are a number of reasons why, at this procedural juncture, the Court does not believe the End-User Plaintiffs' broad requests are proportional to the needs of the case and consistent with efficiency and judicial economy. As an initial matter, Defendants' pending motions to dismiss are fully briefed. Of course, the Court could deny those motions in their entirety. But, if those motions were granted in their entirety, the discovery that the End-User Plaintiffs ultimately want from Defendants' customers would be moot. And, even if the motions were granted only in part, the Court's ruling still could limit the scope of this case in terms of the claims asserted, the years involved, the states covered, the products implicated, and the number of Defendants remaining in the case.

For example, the applicable statute of limitations for the federal antitrust claims asserted in this case—for which the End-User Plaintiffs seek injunctive and other equitable relief—is four years from the date the lawsuit was filed on September 2, 2016. Many of the state law antitrust and consumer protection violations that the End-User Plaintiffs allege are subject to statute of limitations of the same length or shorter. The End-User Plaintiffs contend all of their claims are timely going back to at least the start of 2008 because of Defendants' alleged continuing violation and their concealment of the alleged anticompetitive conduct. And the scope of the End-User Plaintiffs' proposed subpoenas and request for information from Defendants goes back another two years to January 1, 2006 for good measure, a total period of time of more than 10 years. The End-User Plaintiffs, however, present no analysis of what would be a statistically significant or meaningful sample of transaction-level data that would be sufficient to engage in the type of pass-through analysis they must construct in this case or why their ability to do that analysis is threatened seriously if they are not allowed to engage in the broad early discovery they are seeking. To the extent the District Judge narrows the relevant time period in his ruling on Defendants' motions to dismiss, or circumscribes the claims that survive or the number of Defendants against whom viable claims remain, a good deal of what the End-User Plaintiffs now are requesting could be overkill.

The End-User Plaintiffs' request for detailed product-level information also might be overboard depending upon the District Judge's ruling. In their motions to dismiss, Defendants challenge many of the End-User Plaintiffs' state law claims. Because the End-User Plaintiffs are not seeking money damages under the Sherman Act, the dismissal of all of the claims asserted under a given state's law could impact the End-User Plaintiffs' ability to obtain discovery related to sales or purchases in that state. Likewise, the Court's ruling could alter the products that are at issue in this case by narrowing Plaintiffs' definition of “Broilers” for the purposes of this lawsuit. Such a decision also could have significant implications for the permissible scope of discovery in this case.

Further, the Court is not convinced that, even if the motions to dismiss do not narrow the case, the End-User Plaintiffs have sufficiently shown there is a substantial risk Defendants' customers will destroy information necessary to their case before the Court rules on Defendants' motions to dismiss or that the risk that will occur outweighs the burden on Defendants, third parties, and the Court presented by Plaintiffs' very broad early discovery request on Defendants and the broad subpoenas they propose to serve on third parties. At a common sense level, the Court understands that some potentially relevant information in the hands of Defendants' customers could and probably will be unavailable to the End-User Plaintiffs if they cannot immediately serve subpoenas that require that information to be preserved. But it is not at all clear that the End-User Plaintiffs' proposal is necessary to ensure the End-User Plaintiffs can get a class certified or prove up their damage claims.

*4 Fundamentally, both at class certification and on the merits, the End-User Plaintiffs presumably will rely on experts' analyses that are conducted with samples of data from which the experts extrapolate. See [255, ¶ 400] (“Commonly used and well-accepted economic models can be used to measure both the extent and the amount of the supra-competitive charge passed through the chain of distribution to end-use consumers.”). Given that the End-User Plaintiffs seem to allege they will employ commonly used and well-accepted economic models, it is likely that they have at least a general sense of what analyses will be conducted. But the End-User Plaintiffs have not described what data their experts would need to conduct a proper analysis. In fact, the End-User Plaintiffs have not said anything about what analyses their experts will perform. Instead, they have done no more than assert in very general terms that the information they now want Defendants' customers to preserve will be “critical” to their case. To be sure, the End-User Plaintiffs may not know the answers to all these questions. But is that a reason to force potentially thousands of companies to preserve boat loads of information that may not be needed?

It also is not clear to the Court that the End-User Plaintiffs need a sample comprising 40% to 70% of the market for each year, which would be composed of hundreds or even thousands (in Defendant Tyson's case) of customers. There is no indication whether a much smaller sample of customers, products, or time period would get the End-User Plaintiffs and their experts the information they need to know. If the Court is to allow document preservation subpoenas or letters to issue, it first needs to know whether a smaller sample of the information and data that the End-User Plaintiffs are now requesting would be sufficient for their legitimate needs in this case at this time. The Court also is not persuaded that the End-User Plaintiffs need data from 2006 to 2016. It is possible that a sample comprised of a smaller number of years and/or customers may get the End-User Plaintiffs what they need.[3]

Next, the End-User Plaintiffs are seeking information about a massive number of products. As mentioned above, at least one Defendant sold thousands of products encompassed by Plaintiffs' definition of Broilers. It is unclear for what products purchased by end-users from Defendants' customers the End-User Plaintiffs want data. But that likely includes a large number of products as well. It may well be that information about one “Broiler” product may be a proxy for another product. It also may be the case that a portion of the products sold by Defendants and their customers account for a disproportionately large share of their sales. Therefore, it may be appropriate to only provide information about a set of products accounting for a certain percentage of total sales.

Finally, it is not clear that the End-User Plaintiffs need information about purchases/sales in every state. The End-User Plaintiffs are not seeking damages under their lone federal law claim, and there is no reason immediately apparent to the Court why they will need data from every state to support that claim. The End-User Plaintiffs assert claims for damages under the laws of just 32 states. That means that, at the most basic level, the End-User Plaintiffs probably do not need information about sales to end-users in the other 18 states. It may be the case that, even among these 32, a smaller sample is appropriate.[4]

*5 It is worth noting that the End-User Plaintiffs will not be deprived of all the transaction-level data they now want preserved if they are unable to serve preservation subpoenas. The starkest example of this is the purchase data reflecting purchases by Defendants' customers in Defendants own records. As parties to these purchases, Defendants likely have a substantial portion of the information about these transactions that the End-User Plaintiffs want. The End-User Plaintiffs have not identified any purchase data necessary to their case that is only in the possession of Defendants' customers, and they have not claimed that Defendants have radically different document retention policies than their customers (such that their customers would have data that Defendants already deleted). Defendants have an obligation to preserve data relevant to this lawsuit. Therefore, the End-User Plaintiffs simply have not explained why it is critical to their case that Defendants' customers preserve purchase data as distinguished from their own sales data.

Moreover, the End-User Plaintiffs mention serving document preservation subpoenas on two third-party repositories of consumer-level information, Information Resources Inc. and Nielsen Co. It appears they are not now seeking leave to do so.[5] But Defendants' counsel already represented to the Court that “[they]'re happy to allow those subpoenas to go out.” [336 at 48]. The Court would be inclined to allow those document preservation subpoenas to be served. Based upon the representation that those entities retain information going back four years, Plaintiffs have not explained why that information—particularly in combination with purchase data from Defendants—would not get them a long way toward what is reasonably necessary for them at this stage of the proceedings with an appropriate balance of benefit and burden.

The Court also notes that to the extent this lawsuit has received some publicity in the relevant industry, particularly among Defendants' customers, some meaningful subset of that constituency already may be acting in their own self-interest by preserving documents concerning the price at which they purchased Defendants' products, the quantities they purchased, etc., so that they will be in a better position to prove-up or claim damages if Plaintiffs' lawsuit ultimately is successful. That, of course, assumes the market believes at some level that Plaintiffs' claims in this case have merit. Many if not all of Defendants' customers are themselves putative members of the proposed classes as Direct Purchasers. It is difficult for the Court to believe that all of these customers will destroy all responsive information related to price, quantity, and the like unless the End-User Plaintiffs are allowed to serve document preservation subpoenas.

In addition, given the breadth of the End-User Plaintiffs' proposed document preservation subpoenas to potentially thousands of third parties, it is reasonably foreseeable that some or many of those third parties will object to the subpoenas, seek clarification concerning their scope from either counsel or the Court, or seek individualized determinations based upon individual circumstances. This Magistrate Judge would be hard-pressed to respond responsibly to those inquiries or resolve disputes, balancing benefit and burden, before the District Judge's ruling on the motions to dismiss given the breadth of the End-User Plaintiffs' proposed subpoenas.

The End-User Plaintiffs also have not identified a single similar case in which a court has allowed plaintiffs to serve document preservation subpoenas of the scope they propose to serve. Instead, they rely primarily on cases governed by the Private Litigation Reform Act of 1995, 15 U.S.C. § 78u-4, which permits the issuance of such subpoenas when necessary to preserve evidence or to prevent undue prejudice. [355 at 10-14] (citing In re Heckmann Corp. Sec, Litig., 2011 WL 10636718 (D. Del. Feb. 28, 2011)); Koncelik v. Savient Pharm., Inc., 2009 WL 2448029 (S.D.N.Y. Aug. 10, 2009); In re Nat'l Century Fin. Enterprises, Inc. Fin. Inv. Litig., 347 F. Supp. 2d 538 (S.D. Ohio 2004); In re Tyco Int'l, Ltd., Sec. Litig., 2000 WL 33654141 (D.N.H. July 27, 2000); In re Carnegie Int'l Corp. Sec. Litig., 107 F. Supp. 2d 676 (D. Md. 2000); In re Trump Hotel S'holder Derivative Litig., 1997 WL 442135 (S.D.N.Y. Aug. 5, 1997); In re Grand Casinos, Inc. Sec. Litig., 988 F. Supp. 1270 (D. Minn. 1997); Powers v. Eichen, 961 F. Supp. 233 (S.D. Cal. 1997). The End-User Plaintiffs correctly note that the PSLRA standard for lifting a stay is different than that which governs the present motion. But the considerations of proportionality, efficiency, and judicial economy that govern the End-User Plaintiffs' requests are case-specific, depending on the types of claims asserted, the parties' theories, the procedural posture of the case, etc. The End-User Plaintiffs have not identified any non-PSLRA case where a court lifted a stay while a motion to dismiss was pending to permit the serving of document preservation subpoenas on hundreds let alone thousands of third-parties covering a 10-year time period and thousands of products.[6]

*6 Accordingly, the Court's bottom line at this juncture is that while there may be a need to increase the likelihood that relevant information in the hands of Defendants' customers is not destroyed before formal discovery begins in this case, the End-User Plaintiffs have not carried their burden to show that the broad document preservation subpoenas that they want to serve are proportional to the needs of the case and consistent with judicial efficiency and economy. While a more limited set of subpoenas might pass muster, the Court is not inclined to “blue pencil” the End-User Plaintiffs' proposed subpoenas toward that end.

Although the Court has considered whether allowing the End-User Plaintiffs to send out document preservation letters would ameliorate some of the concerns expressed above, that alternative suffers from some of the same problems, including overbreadth, as the subpoena route. Defendants would be asked to produce a significant amount of data and recipients of the letters may have legitimate questions about what they are being asked to do and what would happen to them if they did not comply. Therefore, at this stage, the Court is not prepared to permit End-User Plaintiffs to go down that route either. Again, that is not to say that document preservation letters ultimately might not be an appropriate solution to address the issues End-User Plaintiffs raise. But the Court needs to have more information, along the lines discussed in Section I of this Order, before it can make that decision.

Accordingly, for all of these reasons, the End-User Plaintiffs' Motion to Compel [354] is denied although without prejudice.

For the reasons discussed on the record during the status hearing held today, the Court understands that counsel for the End-User Plaintiffs and Defendants will meet and confer about potential ways to address the concerns discussed in this Order. If they cannot reach agreement on all fronts, then the End-User Plaintiffs may file another, perhaps supplemental, motion explaining the relief they seek and why they believe it is necessary at this juncture. The Court will address the issues raised at that time after the parties have an opportunity to brief that motion. By Wednesday, April 26, 2017, the parties will submit to the Court a schedule for them to complete the meet and confer process and for any motion practice that is necessary on these issues.

It is so ordered.

In the alternative, the End-User Plaintiffs ask that the Court preclude Defendants from contesting at class certification either ascertainability or Plaintiffs' pass-through and damages analysis. [354 at 1-2]. The Court need not reach this issue.

The End-User Plaintiffs say they have served two Requests for Production of Documents that request this information. [355 at 9]. As discussed below, End-User Plaintiffs ultimately are not asking Defendants to produce this information for each and every customer though they are asking for this information for a very large number of Defendants' customers.

For instance, at a status hearing on February 24, 2017, the End-User Consumer Plaintiffs' counsel indicated that they would seek information for each Defendant's top 20 or 25 customers. [356-5 at 46–50]. They also may have told Defendants as much during the meet and confer process. [356-6 at 3]; [376 at 3]. Defendants, on the other hand, offered at one point to provide information about each of their top 10 customers. [356-5 at 5]. Further, the logic of the End-User Plaintiffs' position—that most of Defendants' customers do not retain purchase and sales data for more than three or four years—is that even they do not believe that purchase and sale data going back 10 years exists in the relevant market, at least not in Broiler customers' files.

The Court understands some of Defendants' customers may sell to indirect purchasers who are not end-users. In that instance, it may be that a product bought/sold in one of the 18 states ends up being sold to an end-user in one of the 32 states.

In their brief, the End-User Plaintiffs mention their intent to seek data maintained by third-party organizations, including Information Resources Inc. and the Nielsen Co. [355 at 2]. But they are not now seeking leave to issue preservation subpoenas to those entities. See [354 at 1] (“Plaintiffs also seek to issue preservation subpoenas to ensure Defendants' customers preserve the data currently in their possession....”) (emphasis added); [355 at 1] (same).

The End-User Plaintiffs also cite one case involving the issuance of a subpoena before a Rule 26(f) Conference, not while discovery was stayed pending a ruling on a motion to dismiss. See id. at 14 (citing Caston v. Hoaglin, 2009 WL 1687927 (S.D. Ohio June 12, 2009)). The other cases that the End-User Plaintiffs cite involve either a motion for sanctions or a tort claim based on spoliation, not the issuance of subpoenas. See id. at 10-14 (citing Sloan Valve Co. v. Zurn Indus., Inc., 2012 WL 1886353 (N.D. Ill. May 23, 2012); Olivarius v. Tharaldson Prop. Mgmt., Inc., 695 F. Supp. 2d 824 (N.D. I11. 2010); Quincy Mut. Ins. Co. v. W.C. Wood Co., 2007 WL 1829378 (Mass. Super. June 6, 2007); Fletcher v. Dorchester Mut. Ins. Co., 773 N.E.2d 420, 422 (Mass. 2002)).