STATEMENT

This matter is before the Court on Non-Party Porky Products, Inc.’s Amended Motion of to Quash Subpoenas [ECF No. 1436] served by End-User Plaintiffs (“EUPs”), the Commercial and Institutional Indirect Purchaser Plaintiffs (“CIIPPs”) and the Koch Defendants. The Motion was withdrawn as to the Koch Defendants.[1] The EUPs and CIIPPs (collectively, the Indirect Purchaser Plaintiffs or “IPPs”) seek structured and transactional data from Porky Products, including its purchase and sales data, its contracts relating to those purchases and sales, its rebate and discounts terms (if any), and any market analysis Porky Products conducted, as evidence to establish that any alleged overcharge for the purchase of Broilers was passed through the distribution chain to the IPPs.

Porky Products opposes the subpoenas arguing the information IPPs are seeking is: (1) irrelevant; (2) confidential trade secret and business information; and (3) not proportional to the needs of this case because it would be unduly burdensome for Porky Products to produce the information sought by the subpoenas. The Court will address each of these arguments in turn.

I. Relevance

The information the IPPs are seeking from Porky Products as a large distributor of Broilers is relevant to the claims being made by the EUPs and CIIPPs in the indirect purchaser actions and to Defendants’ defenses to those claims. To the extent Porky Products argues the Court already has determined that information is irrelevant, it is mistaken.

Under different circumstances in connection with motion practice involving different interested parties earlier in this case, the Court did not allow some other downstream discovery to proceed. See [ECF Nos. 749, 1060]; In re Broiler Chicken Antitrust Litigation, 2018 WL 3398141 (N.D. Ill. July 12, 2018); 2018 WL 999899 (N.D. Ill. Feb. 21, 2018). In none of its previous opinions and orders, however, did the Court address whether the IPPs are entitled to the information they now are seeking from Porky Products. Indeed, to the extent the Court referenced the type of sales data the IPPs are seeking from Porky Products in its earlier orders, the Court recognized that such information may be relevant and discoverable by IPPs from third parties like Porky Products. See, e.g., 2018 WL 3398141, at *2 (“[C]ourts have held that downstream discovery of direct purchasers may be relevant for certain purposes in indirect purchaser actions.”); 2018 WL 3398141, at *4 (“Defendants also acknowledge that sales data produced by other direct purchasers, some of whom are larger than DPPs, which was subpoenaed by the IPP classes from those direct purchasers ... will be available to Defendants [and] will help them understand how some larger direct purchasers determine prices and pass-through price increases.”); 2018 WL 999899, at *4 (“DPPs are relatively smaller players in the distribution chain, and Defendants may be able to obtain sufficient discovery to address the commonality and predominance issues in the IPP cases from other sources, to the extent those issues need to be addressed at all.”).

*2 Further, when the Court previously distinguished cases in which courts had allowed some downstream discovery of direct purchasers to go forward, it did so on grounds that are not germane to the IPPs’ subpoenas now before the Court. The IPPs’ subpoenas seek information that is directly relevant to whether Defendants’ allegedly anticompetitive prices were passed through to the IPPs by direct purchasers. The cases the Court previously distinguished allowed discovery from direct purchasers under certain circumstances in anti-trust cases including for the reasons the IPPs now are seeking that discovery from Porky Products. See In re Aftermarket Filters, 2010 WL 3909502, at *2 (N.D. Ill. Oct. 1, 2010) (noting that in an antitrust case “it is undisputed that discovery from direct purchasers is necessary on the issue of certifying an indirect purchaser class”); In re Cathode RayTube (CRT)Antitrust Litig., 301 F.R.D. 449, 452-54 (N.D. Cal. 2014) (overruling direct purchaser plaintiff’s objection and allowing downstream discovery related to direct purchaser’s pricing because it was “directly relevant to the question of how, and in what amount, any potential overcharges were passed through to other plaintiffs”).

The IPPs are in a materially different position than were Defendants in seeking downstream discovery from the Direct Purchaser Plaintiffs (“DPPs”) in this case, which was the context in which the Court’s prior opinions were written. To show impact on the indirect purchaser classes, the IPPs will have to establish that any overcharge due to the alleged conspiracy was passed through to the EUPs and CIIPPs. The transaction data and information being sought from Porky Products is directly relevant to the EUPs’ and CIIPPs’ efforts to show that any alleged overcharge for the purchase of Broilers was passed through the distribution chain to the IPPs.

II. Burden and Proportionality

Based on an undeveloped record, the Court is not persuaded by Porky Products’ burden arguments at this time. Specifically, Porky Products has not convinced the Court that production of the information sought by the IPPs is unduly burdensome or not proportional to the needs of this case.

Porky Products’ burden arguments are very general and, in some instances, a bit hyperbolic. See, e.g., Declaration of Robert Melloy, Jr. [ECF No. 1428], at ¶ 24 (characterizing as “a massive undertaking” the work that would be required to “compile [the] mountain of information” that would result from “finding every scrap of paper related to each of the millions of orders [Porky Products] has had in the last 8.5 years”). In addition, Mr. Melloy speaks fairly generally in his Declaration without much in the way of specifics. He says, for example, that “[t]here is no simple way to quickly isolate all purchases and sales of Defendants’ products” in its archived data ( [ECF No. 1428], at ¶¶ 16-18), but simplicity and speed may not be the target standard. And he suggests the only way to obtain the data the IPPs are seeking would be to hire an SAP consultant “to write a computer program to cull and filter the data” ( [ECF No. 1428], at ¶ 22), but that presupposes Porky Products knows what data the IPPs ultimately will be seeking.

Although the subpoenas are broad as drafted, the Court doubts the IPPs want “every scrap of paper” that Porky Products has in its possession that relates to its sales of Broilers over an almost 10-year period. Further, while it may or may not be necessary for Porky Products to hire a consultant to assist it in responding to the subpoenas, much of what Porky Products has to say about the burden of responding to the IPPs’ subpoenas does not take into account that the EUPs and CIIPPs have offered to narrow the scope of their subpoenas to accommodate Porky Products’ objections and to help streamline the production of information sought. IPPs’ Joint Opposition [ECF No. 1526], at 13. From the briefs submitted, however, it does not appear that Porky Products has engaged seriously with the IPPs to try to right-size the information being sought by the subpoenas and its response to them. That, in turn, prevents Porky Products from estimating the cost of responding to the subpoenas which is a highly relevant consideration on burden and proportionality. See Declaration of Brian D. Penny in Support of IPPs’ Joint Opposition [ECF No. 1527] at ¶ 8 (“While discussing production of data [with Porky Products], I explained that often the first step is to obtain a sample of data from the producing party. From that sample, plaintiffs can often streamline their requests, excluding superfluous data fields and perhaps otherwise narrowing the scope of production. Although Porky Products apparently pulled a sample of one day’s worth of transactional data, it refused to produce that sample to CIIPPs.”)

*3 There may be ways to extract the information the IPPs are requesting or some categories of that information that would be less time-consuming and less expensive than Porky Products surmises and that still would satisfy the IPPs’ legitimate need in the case. At this juncture, however, the Court does not have enough information to determine the actual burden on Porky Products if it had to comply with the IPPs’ subpoenas. Porky Products, therefore, has not met its burden on a critical foundational piece of its Amended Motion to Quash.

Moreover, although Porky Products argues that it is a non-party to these proceedings and, therefore, any burden imposed upon it by the IPPs’ subpoenas is particularly undue, Porky Products also is a potential member of the putative DPP class as a large distributor of Broilers. Thus, Porky Products potentially could benefit from a recovery by the DPPs in this case and it is not a completely disinterested party in the classic sense. Regardless, even putting that aside, without more specifics from Porky Products on its alleged burden and hardship, particularly if the subpoenas can be narrowed, the discovery sought even from a third party seems proportional to the needs of the case.

Fortunately, the Court has appointed a Special Master in this case to help with this exact situation. See [ECF No. 491], at ¶ 1 (“The Special Master is appointed to address and resolve, by mediation or otherwise, issues and disputes that may arise between the parties in relation to electronic discovery, including, but not limited to, identification preservation, processing, search, review, and production of electronically stored information (“ESI”) in this matter (“eDiscovery matters”) and to assist and advise the Court concerning those matters.”). Because a good deal of the information the IPPs are seeking is stored electronically, this is a matter that falls within the expertise of the Special Master. See [ECF No. 491], at ¶ 1. The Special Master has been particularly effective in assisting the parties to this case in resolving a number of thorny disputes and the Court believes this dispute also is one that could benefit from her attention.

For these reasons, this matter is referred to the Special Master to convene a meet and confer with the parties to discuss ways to facilitate production of the information sought by the IPPs and to minimize any burden on Porky Products from complying with the subpoenas.

III. Confidentiality

Although some of the data the IPPs are seeking from Porky Products contains sensitive business and financial information that is confidential, the Court is not persuaded by Porky Products’ argument that such information should not be produced in this case or that the Agreed Confidentiality Order entered in this case would not protect Porky Products’ interests once it is produced.

Confidentiality orders routinely are entered in cases like this to protect sensitive and confidential material. The Agreed Confidentiality Order in this case allows documents to be designated “Confidential” and “Highly Confidential.” [ECF No. 202], at ¶¶ 2-4. The Order further provides that “Confidential or Highly Confidential Information shall not be used or disclosed by the parties, counsel for the parties or any other persons identified in subparagraph (b) for any purpose whatsoever other than the prosecution or defense of claims, or the settlement of, this litigation, including any appeal thereof.” [ECF No. 202], at ¶ 6.

Porky Products argues that the Agreed Confidentiality Order in this case is inadequate because it “allows for disclosure of confidential information or highly confidential information to, among others, named Plaintiffs, the parties’ in-house and outside counsel, contractors, consultants, experts and witnesses for various purposes.” Porky Products’ Amended Memorandum in Support of its Motion to Quash [ECF No. 1437], at 14. It is not clear to the Court that information Porky Products produces will need to be disclosed to employees of any named Plaintiff or Defendant as opposed to only outside counsel and expert consultants or witnesses. And if that information is disclosed to party employees, whether the information will be attributable to Porky Products. For example, the information the IPPs are seeking may be part of a large mix of information they will give to their experts, and Porky Products’ data may be largely anonymized by the time it is disclosed in any attributed way. Therefore, this may not be a situation in which party employees are going to pour through Porky Products’ confidential business information. To the extent real risk exists that will occur and jeopardize Porky Products’ legitimate business interests, however, it may be that IPPs or Defendants will agree to additional procedures designed to guard against potential harm or prejudice to Porky Products.

*4 Porky Products also speculates there is a potential risk of inadvertent disclosure of confidential information by the IPPs based upon an earlier filing that Porky Products says contained such information. Porky Products’ speculation is not persuasive evidence that the confidentiality order in this case is inefficacious based on the one example it cites. JAB Distribs., LLC v. London Luxury, LLC, 2010 U.S. Dist. LEXIS 109178, at *9 (“[T]he mere possibility of an inadvertent disclosure of confidential information [does not] fatally undermine[ ] the operation of a protective order.”) See also In re Dealer Management Systems Antitrust Litigation, 2018 WL 6413199, at *4 (N.D. Ill. Dec. 6, 2018) (“If a party or non-party were able to bar an opponent’s litigation counsel from having access to confidential or highly confidential information on the basis of speculation and unsupported supposition that counsel would misuse that information and violate a court order in the process, the already high cost of federal litigation would increase astronomically ....”).

In short, the Court believes that Porky Products’ confidentiality concerns can be protected adequately within the context of the Agreed Confidentiality Order in this case. If, however, Porky Products has a more specific concern about particular information that actually will be produced, it can raise the issue first with the IPPs, who represent they offered to revise the Agreed Confidentiality Order to further restrict access to Porky Products’ production, then with the Special Master, and eventually with the Court, if necessary, with respect to any dispute as to which the IPPs and Porky Products reach an impasse. It will be easier to resolve a focused dispute than the more amorphous one now before the Court with Porky Products broadly asserting that all the information being sought by the subpoenas is so confidential that its disclosure even in accordance with the Agreed Confidentiality Order threatens Porky Products’ business to the core.

IV. Allocation of Costs

Finally, Porky Products argues if the Court were inclined to deny its Amended Motion to Quash and to order production of the information the IPPs are seeking, then the Court should shift the cost of production to the requesting parties. As a non-party, Porky Products contends that it should not have to bear the cost of production. The Court, however, does not have enough information at this time to evaluate this request. Porky Products has not offered any specific information that would allow the Court to begin to evaluate whether cost shifting, or possibly cost sharing, would be appropriate in this case. The Court would need to hear more from Porky Products, the parties, and the Special Master after the parties and Porky Products have completed their meet and confer process. Accordingly, the Court denies, without prejudice, Porky Products’ request to shift the cost of its production in response to the subpoenas at this time, and the matter of whether cost shifting and/or cost sharing is appropriate when the burden is placed properly in perspective also is referred to the Special Master.

V. Conclusion

For all these reasons, Non-Party Porky Products, Inc.’s Amended Motion to Quash Subpoenas [ECF No. 1436] is denied without prejudice. This matter is referred to the Special Master to convene a meet and confer with the parties to discuss ways to facilitate production of the information sought by the subpoenas at issue and to minimize any potential burden on Porky Products. If necessary, the Court can revisit any issues that need to be decided after that process has taken place with much better information with respect to cost and burden than it has now.

It is so ordered.

Pursuant to the Joint Status Report Regarding Porky Products, Inc.’s Amended Motion to Quash Subpoenas [ECF No. 1940], Porky Products and Koch Defendants have reached a compromise, and the Amended Motion to Quash is withdrawn as to the Koch Defendants.