161 F.R.D. 405

In re POTASH ANTITRUST LITIGATION.

MDL No. 981.

Civ. No. 3-93-197.

United States District Court, D. Minnesota, Third Division.

April 24, 1995.

*406Mark Reinhardt, Reinhardt & Anderson, St. Paul, MN, Orrin S. Estebo, Estebo Schnobrich Frank & Solie, Redwood Falls, MN, Warren Rubin, Gross Sklar & Metzger, Philadelphia, PA, Michael J. Freed, Much Shelist Freed Denenberg Ament & Eiger, Chicago, IL, Joseph Goldberg, Freedman Boyd & Daniels, Albuquerque, NM, James • D. Sonda, James W. Rankin, Alex Dimitrief, L. Roger Boord, Kirkland & Ellis, Chicago, IL, Jack Weston Hanson, Hanson & Assoc., Minneapolis, MN, Lynn L. Sarko, Keller Rohrback, Seattle, WA, Steve W. Berman, Hagens & Berman, Seattle, WA, Thomas J. Potter, Ludens Potter & Burch, Morrison, IL, Francis O. Scarpulla, Scarpulla Law Office, San Francisco, CA, Vernon N. Reaser, Reaser & Wall, Victoria, TX, Joel C. Meredith, Meredith & Cohen, Philadelphia, PA, Robert N. Kaplan, Kaplan & Kilsheimer, *407New York City, Charles R. Watkins, Susman Saunders & Buehler, Chicago, IL, Eugene A. Spector, Mark S. Goldman, Paul J. Scarlato, Spector & Roseman, Philadelphia, PA, Erie D. Freed, Freed Law Office, Los Angeles, CA, for Blomkest Fertilizer, Inc.

Lynn L. Sarko, Seattle, WA, Charles R. Watkins, Susman Saunders & Buehler, Chicago, IL, for Hahnaman Albrecht, Inc.

Charles Harley Johnson, Johnson & Assoc., St. Paul, MN, Mark Reinhardt, Reinhardt & Anderson, St. Paul, MN, for John Peterson.

Elliot S. Kaplan, Linda S. Foreman, Latee-sa Thamani Agunbiade, Robins Kaplan Miller & Ciresi, Minneapolis, MN, Joseph W. Cotchett, Susan Y. Illston, Mark D. Eibert, John L. Fitzgerald, Cotchett Illston & Pitre, Burlingame, CA, Arthur N. Bailey, Bailey Law Office, Jamestown, NY, Leonard B. Simon, Dennis Stewart, Milberg Weiss Ber-shad Hynes & Lerach, San Diego, CA, for Laing-Gro Fertilizers, Inc.

Joseph Goldberg, Freedman Boyd & Daniels, Albuquerque, NM, John P. Bailey, Bailey Law Office, Bemidji, MN, James S. Bailey, Jr., Bailey Harring & Peterson, Denver, CO, for Clearbrook A.G. Service, Inc.

James B. Sloan, Pedersen & Houpt, Chicago, IL, William T. Gotfryd, Gotfryd Law Office, Chicago, IL, for Reamford Liquid Fertilizer Inc.

James B. Sloan, Pedersen & Houpt, Chicago, IL, William T. Gotfryd, Gotfryd Law Office, Chicago, IL, Eliot Norman, Thompson & McMullan, Richmond, VA, for Tolley’s Inc., James River Farm Service Inc.

Mark C. Rifkin, Greenfield & Rifkin, Hav-erford, PA, Patrick J. Grannan, Chimicles Burt Jacobsen & McNew, Los Angeles, CA, C. Oliver Burt, III, Chimicles Jacobson & Tikellis, Haverford, PA, Eugene Mikolajczyk, Prongay & Mikolajczyk, Pacific Palisades, CA, for Angela Coleman

Linda S. Foreman, Robins Kaplan Miller & Ciresi, Minneapolis, MN, Joseph W. Cotchett, Mark D. Eibert, Ruth Silver Taube, Jack P. Hug, Cotchett Illston & Pitre, Burlingame, CA, Arthur N. Bailey, Bailey Law Office, Jamestown, NY, for A.G. Network, Inc.

Mark Reinhardt, Harvey H. Eckart, Reinhardt & Anderson, St. Paul, MN, Fredric N. Goldberg, Mika Meyers Beckett & Jones, Grand Rapids, MI, Eugene A. Spector, Mark S. Goldman, Spector & Roseman, Philadelphia, PA, Eric D. Freed, Freed Law Office, Los Angeles, CA, for Marcelline Farm Supply, Inc.

Jerome B. Pederson, Fredrikson & Byron, Minneapolis, MN, Michael Evan Jaffe, Arent Fox Kintner Plotkin & Kahn, Washington, DC, George S. Cary, Irell & Manella, Newport Beach, CA, for Potash Corp. of Saskatchewan, Inc.

Jerome B. Pederson, Fredrikson & Byron, Minneapolis, MN, Michael Evan Jaffe, Eugene J. Meigher, James P. Mercurio, Gerald Zingone, Arent Fox Kintner Plotkin & Kahn, Washington, DC, for Potash Corp. of Saskatchewan. Sales, Ltd.

Leon R. Goodrich, Oppenheimer Wolff & Donnelly, St. Paul, MN, Victor S. Friedman, Fried Frank Harris Shriver & Jacobson, New York City, Stephen D. Alexander, Fried Frank Harris Shriver & Jacobson, Los Ange-les, CA, for Potash Co. of America, Inc.

Gordon Gene Busdicker, John Dwyer French, Faegre & Benson, Minneapolis, MN, Richard J. Favretto, Marc Gary, Kerry Lynn Edwards, Lawrence S. Robbins, Mayer Brown & Platt, Washington, DC, for IMC Fertilizer Group, Inc.

Roger B. Harris, Julie Ann Swanson, Al-theimer & Gray, Chicago, IL, Douglas E. Rosenthal, Amy L. Bess, Sonnenschein Nath & Rosenthal, Washington, DC, for Kalium Chemicals Ltd.

Douglas E. Rosenthal, Amy L. Bess, Son-nenschein Nath & Rosenthal, Washington, DC, for Kalium Canada, Ltd.

Bradley Grayson Clary, Oppenheimer Wolff & Donnelly, St. Paul, MN, David C. Gustman, William C. Holmes, Freeborn & Peters, Chicago, IL, for Noranda Minerals Inc.

Leon R. Goodrich, Oppenheimer Wolff & Donnelly, St. Paul, MN, David C. Gustman, *408Freeborn & Peters, Chicago, IL, for Central Canada Potash Co., Noranda Sales Corp.

Gerald A. Connell, Baker & Hostetler, Washington, DC, Ralph Zarefsky, Baker & Hostetler, Los Angeles, CA, for Comineo, Ltd., Comineo American Inc.

Carol Alice Peterson, Dorsey & Whitney, Minneapolis, MN, Wayne A. Cross, Erin L. Ringham, Dewey Ballantine, New York City, Mark Crane, Hopkins & Sutter, Chicago, IL, Stephen A. Marshall, Rubin Baum Levin Constant & Friedman, New York City, for Mississippi Chemical Corp.

Carol Alice Peterson, Dorsey & Whitney, Minneapolis, MN, Stephen A. Marshall, Martin P. Michael, Rubin Baum Levin Constant & Friedman, New York City, for Eddy Potash, Inc.

Carol Alice Peterson, Dorsey & Whitney, Minneapolis, MN, Wayne A. Cross, New York City, Stephen A. Marshall, Martin P. Michael, Rubin Baum Levin Constant & Friedman, New York City, Robert Shelley Draper, O’Melveny & Myers, Los Angeles, CA, for New Mexico Potash Corp.

Victor S. Friedman, Fried Frank Harris Shriver & Jacobson, New York City, for Rio Algom, Ltd.

Scott Kimrey Goldsmith, Frank Alan Taylor, Popham Haik Schnobrich & Kaufman, Minneapolis, MN, for PPG Canada Ltd., PPG Indus. Inc.

MEMORANDUM ORDER

ERICKSON, United States Magistrate Judge.

I. Introduction

This matter came before the undersigned United States Magistrate Judge pursuant to a special assignment, made in accordance with the provisions of Title 28 U.S.C. § 636(b)(1)(A), upon the following Motions of the parties:

1. The Plaintiffs’ Motion for the issuance of letters rogatory.
2. The Plaintiffs’ Motion to Compel the Defendants to respond to their Interrogatories numbered 5, 6 and 7, and their Requests for Production of Documents numbered 30 and 31.1
3. The Defendants Motion for a Protective Order to preclude the taking of the deposition of Keith Barton.
4. The PPG Defendants’ Motion to Compel the Plaintiff John Peterson, d/b/a Al-melund Feed & Grain, to more fully respond to its Request for Admissions and Interrogatories.

A Hearing on these Motions was conducted on April 13, 1995,2 at which time the Plaintiffs appeared by Mark Reinhardt and Joel C. Meredith, Esqs.; the Defendants jointly appeared by David C. Gustman, Gerald Zin-gone, Richard J. Favretto, Michael Evan Jaffe, Esqs.; and the PPG Defendants appeared by Frank A. Taylor, Esq.

For reasons which follow, we substantially grant the Plaintiffs request for letters roga-tory and their Motion to Compel, we grant the Defendants’ Motion for a Protective Order, and we deny, as moot, the Motion of the PPG Defendants to compel.3

II. Discussion

By prior Order of this Court, and with the concurrence of the Defendants, the Court *409limited the total number of depositions to be taken by the opposing parties. Unless subsequently modified, the Plaintiffs are limited to a total of 50 depositions and, understandably, the Plaintiffs have no desire to needlessly expend the limited number of their depositions to the discovery of information that can be readily ascertained by less expensive means. As a consequence, the Plaintiffs have formulated Interrogatories 5, 6 and 7, to identify any key officials of the Defendants who may have been engaged in meetings which had a price-fixing motivation. As originally framed, however, Interrogatories 5, 6 and 7 were unduly expansive and would have required the Defendants to engage in a discovery exercise that would have been both unnecessarily burdensome and unproductive. Quite properly, the Defendants objected to the initial scope of Interrogatories 5, 6 and 7.

Upon further remolding, however, the Plaintiffs have attempted to limit their discovery and, we think, they have appropriately restricted their factual inquiries to fall within manageable limits. Contrary to the position espoused by the Defendants, we view discovery, via Interrogatories, to serve a proper function in avoiding unfruitful depositions, in inexpensively narrowing the areas of discovery, in minimizing delay, and in narrowing the issues for Trial. See, e.g., Compagnie Francaise D’Assurance v. Phillips Petroleum Company, 105 F.R.D. 16, 43 (S.D.N.Y.1984). Accordingly, we reject the Defendants’ prodding to direct the Plaintiffs to exhaust their depositional discovery in determining who among the Defendants’ officers, directors and employees may have conferred in an effort to fix the price of potash in the United States’ market. In this respect, we agree with the Courts which have preceded us in recognizing the superiority of Interrogatories in effectively ferreting out information that could be ascertained by the more invasive and costly means of a deposition—at least as a classic instrument of first-wave discovery. See, e.g., In re Shopping Carts Antitrust Litigation, 95 F.R.D. 299, 307 (S.D.N.Y.1982);4 Casson Const. Co., Inc. v. Armco Steel Corp., 91 F.R.D. 376, 380-81 (D.Kan.1980); In re Folding Carton Antitrust Litigation, 76 F.R.D. 417, 419 (N.D.Ill. 1977).

We also reject the Defendants’ view that the Plaintiffs be limited to discovering only those communications which have been exchanged by and between the Defendants. While such a restriction may well be appropriate for admissibility purposes, at the time of Trial, our analysis at this stage of the case is not driven by issues of admissibility, but by fairly minimalistic precepts of relevancy. As a consequence, we view the Plaintiffs’ proposed reworking of their Interrogatories 5, 6 and 7 as an appropriate exercise of their legitimate discovery interests, and as not contravening the Defendants’ proper concern for burdensome or oppressive discovery. Accordingly, we adopt the versions of Interrogatories 5, 6 and 7 which have been promoted by the Plaintiffs.5

*410With respect to the letters rogatory, we are satisfied that the Plaintiffs are entitled to request the production of documents incident to the taking of the deposition of Steven Dechka (“Dechka”), who serves as the President of Canpotex. As we stated at the time of the Hearing, we are satisfied that the Courts of Canada will extend the full faith and credit to our Letter of Request that they would expect our Court to extend to theirs. Further, we find that the Plaintiffs have satisfied the minimal threshold of relevance, for discovery purposes,- in seeking to investigate the involvement, if any, of Canpotex in the pricing of potash in the United States. To that extent, the ownership, organizational structure, and the influence and control of Canpotex over the potash market in the United States may be explored by the Plaintiffs during the deposition of Dechka.

Lastly, we regard the Plaintiffs’ interest in noting the deposition of Keith Barton (“Barton”) to precipitously approach an ill-considered dismissal of the District Court’s prior Orders in this matter. Given the dialectic which occurred with Plaintiffs’ counsel at the Hearing in this matter, we are satisfied that any effort to depose Barton would seriously jeopardize the cleansing impact that the Court’s previous disqualification Orders were designed to effectuate. As the cases relied upon by the District Court evidence, the taint of professional indiscretion, if not woeful misconduct, cannot be compartmentalized such that the offending personage will be able to testify to that which is not privileged while preserving the confidences that his profession dictates. See, e.g., MacDonald Estate v. Martin [1990] 77 D.L.R. (4th) 249 (Can.). Absent compelling cause, which the Plaintiffs have failed to establish, we have no basis to believe that the amalgam of Barton’s knowledge of the potash industry can be reliably balkanized into privileged and non-privileged compartments. Accordingly, we grant the Defendants’ Motion for a Protective Order, to preclude the taking of Barton’s deposition, but without prejudice to the Plaintiffs’ right to seek leave to depose Barton upon a proper showing.

NOW, THEREFORE, It is—

ORDERED:

1. That the Plaintiffs’ Motion for the Court to issue a Letter of Request to the Court of Queen’s Bench for Saskatchewan [Docket No. 369a] is GRANTED.

2. That the Plaintiffs’ Motion to Compel responses to their Interrogatories numbered 5, 6 and 7, and to their Requests for Production of Documents numbered 30 and 31 [Docket No. 373], are GRANTED in part and DENIED in part.

3. That the Defendants’ Motion for a Protective Order to preclude the Plaintiffs from taking the deposition of Keith Barton [Docket No. 376] is GRANTED.

4. That the PPG Defendants’ Motion to Compel the Plaintiff John Peterson, d/b/a Almelund Feed & Grain, to further respond *411to' their discovery requests [Docket No. 385] is DENIED as moot.

In re Potash Antitrust Litigation
161 F.R.D. 405

Case Details

Name
In re Potash Antitrust Litigation
Decision Date
Apr 24, 1995
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161 F.R.D. 405

Jurisdiction
United States

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