United States District Court, E.D. Louisiana
WINN-DIXIE STORES, INC., ET AL.
SOUTHEAST MILK, INC., ET AL.
Dore for Donald Bernos.
Colletta, Jr. for Defendants.
MINUTE ENTRY AND ORDER
WELLS ROBY CHIEF UNITED STATES MAGISTRATE JUDGE
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.
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.
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.
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.
Standard of Review
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.
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).
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 ...