In re Broiler Chicken Antitrust Litigation

ORDER AND STIPULATION CONCERNING REMOTE DEPOSITION PROTOCOL. Signed by the Honorable Jeffrey T. Gilbert on 7/31/2020. Mailed notice

Northern District of Illinois, ilnd-1:2016-cv-08637

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Case: 1:16-cv-08637 Document #: 3729 Filed: 07/31/20 Page 1 of 14 PageID #:258081 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION Case No. 1:16-cv-08637 IN RE BROILER CHICKEN ANTITRUST LITIGATION This Document Relates To: All Actions ORDER AND STIPULATION CONCERNING REMOTE DEPOSITION PROTOCOL Pursuant to Federal Rules of Civil Procedure 1, 29, and 30(b)(4), and this Court's Opinion and Order on Class Plaintiffs' Motion for Entry of an Order Regarding Remote Depositions of Certain Categories of Witnesses (Dkt. 3674), the Parties have met, conferred, and agreed upon the following protocol for taking, defending, and participating in remote depositions in this case. The Parties submit and the Court agrees that, given the ongoing COVID-19 pandemic, good cause exists for entry of the stipulated remote deposition protocol described in this unopposed proposed order. Unless explicitly stated otherwise herein, this Order does not alter or otherwise supersede the Deposition Protocol Order already entered in this case (Dkt. 995). IT IS HEREBY ORDERED THAT: 1. Definitions a. "Attending Counsel" shall mean any legal counsel for a Party or Non-Party that is attending a Deposition noticed and taken pursuant to this order. Attending Counsel does not include Deposing Counsel or Defending Counsel. b. "Court Reporter" shall mean an individual retained by the Party or Parties 550646.8 Case: 1:16-cv-08637 Document #: 3729 Filed: 07/31/20 Page 2 of 14 Pageld #:258082 taking a Deposition pursuant to this order to transcribe the Deposition taken pursuant to this order and who is authorized to administer oaths either by federal or state law. c. "Deposition" shall mean any deposition upon oral examination taken pursuant to Fed. R. Civ. P. 30, or any court order in this Litigation. d. "Deposing Counsel" shall mean the legal counsel of the Party or Parties noticing a Deposition pursuant to this order. e. "Defending Counsel" shall mean the legal counsel of the Party, Parties, Non-Party, or Non-Parties being deposed pursuant to this order who is principally defending the Deposition. In the case of a witness who is represented by personal and company counsel for the purpose of his or her Deposition, both personal and company counsel shall be treated as "Defending Counsel" under this order. f. "Document" shall have the broadest possible meaning consistent with Fed. R. Civ. P. 34, Fed. R. Evid. 1001, and Fed. R. Evid. 1006, and explicitly includes Hard Copy Documents, ESI, and Summary Exhibits. "Electronically Stored Information" and "ESI" shall have its broadest possible meaning consistent with Fed. R. Civ. P. 34(a) and Fed. R. Evid. 1001, and explicitly includes all electronically-stored information produced by any Party or Non-Party in this Litigation. h. "Exhibit" shall mean any Document or ESI that is marked as an exhibit at a Deposition. 550646.8 2 Case: 1:16-cv-08637 Document #: 3729 Filed: 07/31/20 Page 11 of 14 Pageld #:258091 and/or made a Deposition Exhibit (e.g., marked as the same Exhibit number with an "A" affixed for the annotated version). Upon conclusion of the Deposition, the vendor responsible for handling the Exhibits will circulate the stamped copies to the Court Reporter and all counsel attending. iii. Hard Copy Exhibits: At the sole discretion of the noticing Party, a remote Deposition may be conducted using sealed, pre-marked, hard copy paper Exhibits as the official Exhibits. Such hard copy Exhibits shall be mailed such that they are received at least two days before the Deposition (with tracking information available upon request) to the deponent and the Defending Counsel. Anyone receiving sealed hard copy Exhibits agrees pursuant to this Stipulation, as ordered, that the sealed Exhibits must remain sealed and unopened until the deposition begins and the witness is instructed on the record to open a sealed hard copy exhibit (at which time others in possession of sealed exhibit folders may open the sealed exhibit, as well). Deposing Counsel may ask the witness and others receiving sealed exhibits to confirm, on the record, that no exhibit was opened prior to the deposition. At the conclusion of a Deposition, any unused exhibits will remain sealed and be returned, unopened, to the counsel who provided those exhibits with a self-addressed return envelope. All counsel planning on questioning the witness with an Exhibit will attempt in good faith to include in their hard copy set all of the exhibits on which they plan to question the witness; however, nothing in this paragraph is intended to prevent, nor in fact prevents, counsel from preparing for the Deposition until the time that it occurs, or from introducing during the D tion additional Exhibits not previously mailed in hard copy, including by electronic means otherwise provided herein. iv. Electronic Exhibits: Pursuant to (V(A) of the Deposition Protocol Order (Dkt. No. 995), a Party may utilize electronic Exhibits in connection with a Deposition so long as the Party provides notice to the deponent and Defending Counsel and arranges for the 550646.8 11 Case: 1:16-cv-08637 Document #: 3729 Filed: 07/31/20 Page 12 of 14 Pageld #:258092 technology to permit the presentment of the electronic Exhibit at the Deposition to the witness and counsel. The Parties will provide electronic copies of Exhibits introduced during the course of a Deposition, either via email, deposition exhibit software, or via a pre-arranged FTP or file-sharing site, to ensure that opposing counsel and Attending Counsel may participate in the Deposition. Similarly, where an Exhibit is used electronically and was not provided in hard copy before the Deposition, the Parties will provide electronic copies of that document by the same means described in the previous sentence. Deposing Counsel shall not begin questioning a witness concerning an electronic Exhibit until that Exhibit has been received by Defending Counsel and Attending Counsel. 1. Courtesy Hard Copies for Depositions Conducted with Electronic Exhibits: Upon request by the deponent or Defending Counsel, courtesy hard copies of Exhibits will be provided to the deponent and Defending Counsel to arrive at least 48 hours prior to the Deposition. Voluminous exhibits upon which only a portion of the document will be the subject of questioning (beyond authentication and evidentiary questions) need not be mailed in hard copy and will be presented electronically, but Deposing Counsel will provide excerpts of key portions of the document as part of the hard copy courtesy set. If these hard copies are delayed in arriving, the Parties will meet and confer on rescheduling the Deposition, if necessary. All counsel planning on questioning the witness with an Exhibit will attempt in good faith to include in the courtesy hard copies all of the Exhibits on which they plan to question the witness. All provisions of Paragraph 12(i)(iii) apply regarding the sealing and unsealing of such hard copy Exhibits. For the avoidance of doubt, the official Exhibit will remain the electronic copy presented to the witness and all participants consistent with Paragraph 2(i)(iv). 550646.8 12 Case: 1:16-cv-08637 Document #: 3729 Filed: 07/31/20 Page 13 of 14 Pageld #:258093 2. "Last Minute" Exhibits: The Parties recognize that there may occasionally be last minute Deposition Exhibits, which are not able to be provided to the witness or Defending Counsel in advance. Nothing in this section is intended to prevent, nor in fact prevents, Deposing Counsel from preparing for the Deposition until the time that it occurs, or from introducing during the Deposition additional Exhibits not previously mailed in hard copy. However, the use of such "last minute" exhibits should be the exception, not the rule. Questioning about a "last minute exhibit" shall not commence until defending counsel has received a copy of the exhibit electronically via one of the electronic methods specified herein. k. Other Remote Deposition Logistics. i. The time shown on the transcript and video shall be the local time in the place where the deponent is located. ii. Absent a special need, the witness will not have access to or use of the Realtime feed from the Court Reporter at any time during the Deposition. iii. Witnesses will testify on the record that they do not have any notes or Documents available to them while the Deposition is on the record, other than any that are disclosed and provided to all Parties. iv. Both (1) the Court Reporter and (2) the Deposition vendor or videographer will maintain an official record of the Deposition. Accordingly, both will need to agree when proceedings are on or off the record. Once proceedings go on the record, and absent extenuating circumstances, all Parties must agree before the record stops. 1. All objections to the use and admissibility of the transcript or video of a 550646.8 13 Case: 1:16-cv-08637 Document #: 3729 Filed: 07/31/20 Page 14 of 14 PageID #:258094 Deposition taken pursuant to this order based solely on the fact that the Deposition was taken by remote means are deemed waived. 4. MISCELLANEOUS a. An objection on behalf of one defendant is deemed an objection on behalf of all defendants. Similarly, an objection on behalf of one plaintiff is deemed an objection on behalf of all plaintiffs. b. At this time, the only depositions that the Court has compelled are the 18 depositions subject to the Court's June 25, 2020 Order (Dkt. 3674.). The Parties anticipate that additional Depositions will need to proceed remotely and plan for this Protocol to apply to these additional depositions. The Parties agree to meet and confer in good faith to negotiate revisions to this order based on lessons learned from the initial 18 depositions, if any. This Order may be modified by the Parties on their own motion or the Court on its own motion for good cause shown. Deposing Counsel and Defending Counsel may vary from the provisions of this order by a written stipulation entered on the record in a Deposition taken pursuant to this order. IT IS SO ORDERED. Capra DATED: July 31, 2020 Jeffrey T. Gilbert United States Magistrate Judge 550646.8 14 Case: 1:16-cv-08637 Document #: 3729 Filed: 07/31/20 Page 3 of 14 PageID #:258083 i. "Hard Copy Document" shall mean any Document or thing discoverable under Fed. R. Civ. P. 26(b)(1), Fed. R. Civ. P. 34, and/or Fed. R. Civ. P. 45 that cannot be characterized as ESI. j. "Litigation" shall mean In re Broiler Chicken Antitrust Litigation, and any matter consolidated with or deemed related to that matter by this Court. k. "Parties" shall mean any plaintiff, any defendant, and any of their current and/or former employees, executives, officers, and/or directors. 1. "Non-Parties" shall mean all natural or legal persons that are not Parties from whom a Party is seeking a Deposition in the Litigation. 2. APPLICABILITY AND GENERAL PRINCIPLES: a. Applicability: This Order is intended to allow the Parties to continue deposition discovery during the on-going COVID-19 pandemic, with the goal of completing fact discovery by the current March 5, 2021 deadline. This Order shall remain in effect until the later of: December 1, 2020; the expiration, termination, or vacating of General Order No. 20-cv-0012 (In re: Coronavirus COVID-19 Public Emergency (N.D. Ill.)), including various amendments to that order and like general orders that may be entered by the Court; the Parties agree; or the Court orders otherwise. Except as set forth in the Deposition Protocol Order (Dkt. No. 995) or herein, the procedures for noticing and conducting Depositions are controlled by the Federal Rules of Civil Procedure. Nothing in this Order shall prevent (1) a deposition from proceeding in person if Deposing Counsel, Defending Counsel, and the witness agree, or (2) Defending Counsel from 550646.8 3 Case: 1:16-cv-08637 Document #: 3729 Filed: 07/31/20 Page 4 of 14 PageID #:258084 being physically present