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Winn-Dixie Stores, Inc. v. Southeast Milk, Inc.

United States District Court, E.D. Louisiana

April 12, 2018

WINN-DIXIE STORES, INC., ET AL.
v.
SOUTHEAST MILK, INC., ET AL.

         SECTION: “R” (4)

          Philip Dore for Donald Bernos.

          Thomas Colletta, Jr. for Defendants.

          MINUTE ENTRY AND ORDER

          KAREN WELLS ROBY CHIEF UNITED STATES MAGISTRATE JUDGE

         Before the Court is a Motion Quash Deposition Subpoena (R. Doc. 1) filed by a non-party witness, Donald Bernos. The motion is opposed. R. Doc. 2. Oral argument was heard on April 11, 2018.

         I. Background

         This action was filed by Winn-Dixie Stores, Inc. and Bi-Lo Holdings, LLC in the Middle District of Florida, in which they allege that the Defendants, entities in the dairy industry, conspired to artificially inflate the price of raw milk by running a program that paid dairy farmers a subsidy to sell their cows for beef in violation of the Sherman Act. R. Doc. 2, pp. 1-2.

         The instant motion was filed by Donald Bernos seeking to quash a deposition subpoena. R. Doc. 1. Bernos argues that the subpoena subjects him to undue burden and that he does not possess relevant information. R. Doc. 1-1, pp. 4-5.

         The Defendants have opposed the motion and also title their opposition as a “Cross-Motion to Compel.” R. Doc. 2. The Defendants state they have raised an affirmative defense that the claim for damages is barred by the applicable statutes of limitation since Plaintiffs should or did know of the subsidy program while it was in effect from 2003 to 2010. They state that the subsidy program, the Herd Retirement Program, was widely publicized throughout the nation, but Plaintiffs claim they were unaware of it until 2013. Id. at p. 2. Defendants argue that Bernos managed two of Winn-Dixie's processing plants in Louisiana and knew of the program. They argue that Bernos's deposition and testimony is highly relevant and proportional to the needs of the case.

         II. Standard of Review

         Federal Rule of Civil Procedure (“Rule”) 45 governs subpoenas. A subpoena may command a person to attend a trial, hearing, or deposition within 100 miles of where the person resides, is employed, or regularly transacts business in person. Fed.R.Civ.P. 45(c)(1). The party or attorney responsible for issuing the subpoena “must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena.” Fed.R.Civ.P. 45(d)(1). The Court in the district where compliance is required must impose this duty. Id.

         “On a timely motion, the court for the district where compliance is required must quash or modify a subpoena that: … (iv) subjects a person to undue burden.” Fed. R. Ci. P. 45(d)(3). If the court where compliance is required did not issue the subpoena “it may transfer a motion under this rule to the issuing court if the person subject to the subpoena consents or if the court finds exceptional circumstances.” Fed.R.Civ.P. 45(f).

         III. Analysis

         The motion before the Court was filed by Donald Bernos seeking an order quashing the deposition subpoena issued to him. R. Doc. 1. He argues that the deposition subpoena was served on March 1, 2018 and was scheduled for March 27, 2018. Id. at p. 1. Bernos states that having to deal with the subpoena has caused chest pains or tightness and he suffers from multivessel artery disease. Attached to the motion is a note from a physician's office stating that Bernos has a history of multivessel coronary artery disease with history of bypass, is known to have inadequate revascularization, recent events have caused significant chest tightness, and asking for Bernos to be excused from additional ...


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