DAVID I. LONGMAN, et al.,
FOOD LION, INC., et al.,
Defendants. Misc. No. 95-ms-265
File Nos. 4:92CV696,
JEFFREY FEINMAN, et al., 4:92CV705 (M.D.N.C.)
FOOD LION, INC., et al.,
GOVERNMENT ACCOUNTABILITY PROJECT,
In this action, shareholders allege under federal securities laws and state common law that defendants misled them and caused them to lose money on the stock of Food Lion, a supermarket chain, by concealing facts pertaining to unsanitary handling of meat and fish in Food Lion stores. Food Lion's stock price fell after the ABC News program PrimeTime Live ("PTL") disclosed the practices on national television. Food Lion claims that it is the victim of a conspiracy by a union, ABC News, and others to injure its business by lying about it, and subpoenaed the Government Accountability Project ("GAP"), a Washington-based public interest group that aids whistleblowers, for the supposed purpose of pursuing that defense.
Despite its belief that this discovery is sought for ulterior purposes unrelated to the shareholder suit, and to harass a whistleblower group to prevent it from consorting with groups Food Lion does not like, GAP staff spent 125 hours reviewing its files for all documents pertaining to the alleged conspiracy against Food Lion, copying 655 pages of non-confidential documents to produce to Food Lion, and preparing an objection log for the remainder. The parties have begun discussing GAP privilege and other objections to the production of those documents, pursuant to Local Rule 108(m).
Before completing those discussions, Food Lion now moves to compel GAP to conduct a further search of its files for all documents pertaining to the meat and poultry industry and to two specified meat packing companies. As demonstrated below, however, such documents are totally unrelated even to the farfetched theory of relevance that Food Lion has set forth in its papers. Moreover, searching for those documents would require review of ten years worth of advocacy files, and disclosure of sufficient information about their contents to assert privilege claims, a burden that GAP should not be required to undertake even if Food Lion were willing to pay full market rates for such services. Accordingly, both the discovery rules and the First Amendment bar Food Lion from requiring GAP to conduct the further searches that this motion demands. Moreover, Food Lion complied with neither the personal conference requirements of Local Rule 108(m) nor the service requirements of the Federal Rules. The motion should be denied, and the Court should impose sanctions on Food Lion for having filed its motion.
1. Background: Food Lion's Practices and GAP's Investigation.
This subpoena arises from the failure of Food Lion, a large supermarket chain, to maintain safe and clean food handling practices in its stores, and from statements that tended to mislead investors into believing that Food Lion's sanitation practices were acceptable. According to the complaint, Food Lion's failure to tell investors the truth caused them to lose money when Food Lion's stock price fell after its practices were exposed.
Many Food Lion employees have stated that management pressured employees to sell meat, fish and dairy products after they had sat on the shelf well past the "sell by" date which supposedly marked the deadline for their sale. These pressures, according to the employees, led to such practices as removal of labels once the "sell by" had expired, and relabeling the produce with new, later dates; retrieving food from the trash or the floor and packaging it for sale; selling produce that had been infested by rodents; rinsing old, slimy or putrid produce with water or bleach to remove foul odors and color, and then repackaging it (with lemon juice) for sale; regrinding spoiled meat with fresh meat to hide the spoilage; and failure to follow proper practices for cleaning processing machines and areas. Def. Exh. 7, ¶ 13.
GAP heard about Food Lion's practices. GAP is a public interest organization that has developed a national reputation for its work with whistleblowers among both government and private sectors employees. See United States v. Garde, 673 F. Supp. 604, 606 (D.D.C. 1987), app. dism., 848 F.2d 1037 (D.C. Cir. 1988). As part of its work, GAP has provided legal representation to whistleblowers in connection with discharges and other forms for retaliation that they have suffered for their courage; given whistleblowers advice and assistance in communicating their information to law enforcement authorities, the media and other entities that can take action to rectify the wrongs of which the whistleblowers are aware; and pressed Congress and government agencies to adopt better ways of responding to reports from whistleblowers as well as protecting them from retaliation. In addition, GAP publishes a newsletter addressing both its involvement with whistleblowers and its more substantive commitments. Clark Decl., ¶¶ 2-4.
GAP has long been concerned that steps taken to deregulate the meat and poultry industry had caused a drastic decline in public health protections. GAP believes that, as a result of this change, consumers are poorly informed about the safety of the food they buy, and neither government nor corporate entities are sufficiently accountable for food safety at the retail level. The best sources for information about these problems are the workers involved in food handling. Because workers typically fear retaliation from employers and from communities where they live (which* often depend on large companies for their economic well-being if they blow the whistle, GAP's experience and -- most important -- its reputation for protecting confidentiality -- made it the ideal entity for these whistleblowers seeking help and advice. Id. ¶¶ 9, 11.
Accordingly, after GAP learned in the fall of 1991 from the United Food and Commercial Workers Union ("UFCW") that current and former Food Lion employees might be willing to speak about Food Lion's disgusting practices, it contacted all former employees whom it was able to identify, interviewed them, and drafted affidavits for employees who indicated that they would be willing to sign one. Consistent with confidentiality commitments that GAP made to the UFCW as a condition of getting names in the first place, GAP promised the persons whom it contacted that it would not reveal their names, the substance of the communications, or even the affidavits without the express permission of each employee. Id. ¶¶ 12-13.
The ABC News program PrimeTime Live ("PTL") expressed interest in learning more about the allegations. Believing that the disinfecting light of publicity might be the best way to stop the unsanitary food handling practices that these employee-informants disclosed, GAP obtained their consent to release their information to PTL. The understanding was that it would then be up to each individual employee to decide whether to authorize PTL to release his or her name or information. Id. ¶¶ 18; Def. Exh. 7, ¶ 16.
PTL then pursued its own, independent investigation of Food Lion's practices. It spoke not only with the employees whom GAP had identified, but with others as well, and conducted an "undercover" investigation pursuant to which two ABC employees -- without the aid or even the knowledge of GAP -- managed to get hired as food-handling employees in various Food Lion stores. The employees then brought hidden cameras into the stores, where they recorded discussions with fellow workers and supervisors, and were able to shoot footage that appears to show some of the filthy practices that Food Lion's employees had described. Def. Exh. 7, ¶ 16.
2. Food Lion's Other Litigation and Similar Subpoenas.
During litigation that was on-going between Food Lion and some of its employees, Food Lion learned about GAP's and PTL's investigations into its practices, and initiated efforts to punish the messengers and discourage them from pursuing their inquiries.
First, taking advantage of Henderson v. Food Lion, No. 92-40174-WS (N.D. Fla.), a then-pending suit in which several Food Lion employees alleged violations of the Fair Labor Standards Act ("FLSA"), Food Lion served a subpoena demanding both testimony and document production from GAP. GAP Exh. 1. Although Henderson concerned only the FLSA, Food Lion's subpoena sought documents and testimony on any Food Lion related activities or contacts, as well as on the UFCW, communications with the Department of Labor, and other subjects. Among the subjects on which documents were sought were several suits in which the courts had expressly stayed discovery, raising the inference that Food Lion was trying to take advantage of discovery in one case in order to pursue its interests in a number of other cases. GAP Exh. 2, at 3-4. On motion of the Henderson plaintiffs (who had not been notified of the deposition), the court in that case promptly stayed all discovery, and the subpoena was never enforced against GAP. GAP Exh. 3.
Even before PTL aired its report on Food Lion (hereafter "the PTL broadcast"), Food Lion, apparently anticipating that the report would be negative, sued ABC alleging that ABC was colluding with Food Lion's enemies, including the UFCW, to injure its business (hereafter "the PTL case"). GAP Exh. 4, at 7. The show aired anyway, and included compelling hidden camera footage and interviews with some of Food Lion's employees, and Food Lion's stock price fell for a period of time.
Next, in a multi-district case entitled In re Effective Scheduling, Food Lion subpoenaed GAP again. The new subpoena, GAP Exh. 5, sought even more information than the Henderson subpoena, including data on GAP's contacts with a variety of labor organizations, other entities, and persons connected with such groups, and contacts with attorneys representing employees in litigation against Food Lion. GAP moved to quash the subpoena; the matter was settled by GAP's stipulation to ask its confidential sources whether they were willing for their affidavits to be given to Food Lion's counsel, and to provide any affidavits for which consent was given. GAP Exh. 6. Food Lion later stipulated that GAP had complied with the first stipulation, and withdrew its subpoena. GAP Exh. 7.(1)
Meanwhile, Food Lion pursued the PTL case. Recognizing that it could not prove that the broadcast was false or meet the standards of New York Times v. Sullivan for proving actual malice, Food Lion alleged only that PTL used improper methods to secure employment for its undercover investigators, and obtained improper entry to Food Lion's property through the use of such methods. Much of that suit has been dismissed on First Amendment and statutory grounds, because the court concluded that Food Lion was trying to pursue claims tantamount to libel without being willing to meet the standards imposed on such cases by the First Amendment. Food Lion v. Capital Cities/ABC, 887 F. Supp. 811 (M.D.N.C. 1995).
Food Lion has also sued the UFCW, alleging that UFCW abused process by filing a FLSA suit against Food Lion on behalf of some employees, and by taking discovery in that suit to obtain information for use in publicity, union organizing and other, non-litigation efforts by the union against Food Lion (hereafter, "the abuse of process case"). After that action was removed to United States District Court for the District of South Carolina, Food Lion directed a subpoena in 1994 to the Kamber Group, a public relations firm that had done work for the UFCW. GAP Exh. 8. The subpoena sought information about the same conspiracy that Food Lion alleges in its moving papers in this case, and relating to a similar collection of entities. Food Lion moved to compel production, representing that the discovery cut-off in the case was April 1995. GAP Exh. 9.
Even though Food Lion is suing the UFCW for alleged misuse of discovery to obtain information for publicity campaigns, and without the slightest hint of irony, Food Lion is apparently doing exactly the same thing through its own litigation. It prepared videotapes to be furnished to Congress and to its own employees, proclaiming its innocence of the charges against it and claiming to be the victim of a wide-ranging conspiracy. And it co-operated with a sympathetic reporter for the magazine, Insight on the News, which published an article describing documents and other information that Food Lion had obtained in the litigation and which, according to Food Lion, support its claim that ABC News is not to be trusted. Felten, Food Lion Bares Its Claws (March 14, 1993). The article praises Food Lion for using litigation to support its publicity claims against the media, and holds up the suit as a model for company efforts "to expose . . . cozy [media] relationships." This article describes the obtaining of such evidence, and not a judgment, as the real purpose of the litigation:
And the search for evidence to prove this -- more than the pursuit of an apology -- is what this lawsuit is all about. By litigating, Food Lion is able not only to take depositions from Prime Time Live's staff; it has also forced ABC to hand over 55 hours of the undercover tape, unedited. [Article then describes discovery materials].
Id. at 8.
As an article published in yesterday's Washington Post makes clear, Pl. Exh. 10, the press, not the courts, continues to be Akin Gump's and Food Lion's forum of choice for their charges that the PTL broadcast was false, using evidence obtained through litigation.
Last month, following delivery of the subpoena that is at issue here, Food Lion filed yet another lawsuit against the UFCW, along with several of its lawyers and employees, other groups allegedly involved in the grand conspiracy, and even some of the lawyers representing employees in Title VII and FLSA suits against Food Lion, alleging that almost everybody except the Elders of Zion are participants in a massive conspiracy and racketeering scheme to bring Food Lion to its knees. GAP Exh. 11. The 178-page complaint alleges that actions by litigation opponents, briefs and affidavits, broadcasts, reports, and other activities, even Congressional testimony, were all part of the conspiracy. Most of the individuals and groups about whom the subpoena to GAP seeks information are named in the complaint as either defendants or co-conspirators. The inference that the subpoena at issue here, seeking information with no plausible relevance to the shareholder suit, was actually designed to secure information to support the civil RICO complaint is indeed difficult to avoid.
3. The Underlying Lawsuit.
On November 12, 1992, Food Lion shareholders sued Food Lion and its CEO, Tom Smith, on behalf of all persons who purchased Food Lion securities between May 7, 1990, and the date of the PTL broadcast, November 5, 1992. The complaint alleged that defendants had repeatedly represented to shareholders that Food Lion's earnings and profit margins were based in part on its close attention to, and maintenance of, clean conditions and safe produce; that Food Lion had increased its earnings and margins by the disgusting practices revealed by the PTL broadcast; that Food Lion's representations were false and had maintained artificially high earnings; that Food Lion's actual practices operated as a fraud and deceit on the plaintiff class; and that the class suffered damages through their reliance on defendants' representations.
On April 14, 1995, as the discovery deadline in the UFCW abuse of process suit arrived, defendants tried to use the shareholder case as an excuse to pursue the discovery against GAP that they had initially sought in Henderson and then again in Effective Scheduling, by sending a new subpoena to GAP. As if to provide an excuse for the subpoena, defendants amended their answer on April 17, 1995, alleging that the accusations about Food Lion in PTL broadcast were false and that a conspiracy organized by the UFCW and unnamed persons affiliated with it was to blame for the PTL broadcast. GAP Exh. 12. Even this amended answer, however, contained no allegations about matters into which the parts of the subpoena contested in this motion inquire -- the meat and poultry industry.(2)
4. Delivery of the Subpoena and GAP's Attempt to Comply.
On April 14, a process server brought the subpoena at issue here to GAP's offices, but did not find an officer or authorized agent of GAP. As shown by the declaration of Robert Seldon, an in-house GAP attorney, Mr. Seldon came to the reception area to speak to the process server. He explained that he was not authorized to accept service, but was taking the subpoena only as a courtesy.
The subpoena's document demand runs on for 17 pages (including definitions), with 36 separately numbered paragraphs. GAP Exh. 14. Food Lion demands all documents in GAP's possession that bear any relationship to Food Lion, or the UFCW, or to any contacts with ABC News or PTL about Food Lion. Many of the requests describe the same documents in different ways. For example, in addition to a paragraph demanding all documents relating to Food Lion, there is another one demanding documents relating to contacts with the media about Food Lion, and another demanding all documents involving any entity and relating to Food Lion, and still another series of paragraphs seeking documents involving GAP and a variety of entities relating to the PTL broadcast.
Moreover, the subpoena is so broad that it also seeks documents having no relevance even to Food Lion or the UFCW. For example, it demands all GAP documents relating generally to the meat and poultry industry, to two named meatpacking companies, and to any contacts with the media on such topics. ¶¶ 22, 34. Several paragraphs, ¶¶ 24-32, demand documents relating to a number of individuals and organizations, whether or not in connection with Food Lion or the PTL broadcast. As discussed below, GAP looked for documents pertaining to these individuals insofar as the documents related to Food Lion or the PTL broadcast. Therefore, it is only to the extent that Food Lion's requests seek documents wholly unrelated to Food Lion or to the broadcast about Food Lion that are they are at issue on this motion.
A complete response to this subpoena, as drafted, would have required GAP to search through a score of file cabinets, plus many file boxes retrieved from closed storage, reviewing perhaps hundreds of thousands of pages of documents. There is no question that many of the documents demanded would have been privileged and totally irrelevant to the issues in this case. Moreover, given GAP's small staff, it would have taken months just to review the documents, not to speak of creating a privilege log. GAP would be especially hard-pressed to respond because Elaine Dodge, the GAP staff attorney responsible for GAP's investigation of Food Lion, departed for maternity leave on the day the subpoena arrived. And yet the subpoena demanded production of documents on April 24, 1995, only five business days delivery of the subpoena.
Therefore, pursuant to Rule 45(c)(2)(B), of the Federal Rules of Civil Procedure, on April 24, 1995, GAP served objections to the subpoena on Food Lion, GAP Exh. 15, and a letter from its counsel that more fully described the objections. GAP Exh. 16. Among other things, the objections specifically identified the undue burden that compliance would place on GAP, the completely unreasonable amount of time that had been allowed, the irrelevant and privileged nature of the documents sought, and Food Lion's failure to effect service in compliance with the Federal Rules. The letter also objected to Food Lion's subpoena as an attempt to harass GAP, and warned that Food Lion was risking an abuse of process suit.
Larry Tanenbaum, Esquire, and Robert Miller, Esquire, responded for Food Lion on May 1, 1995. GAP Exh. 17. Although disagreeing with GAP's objections, Mess'rs Tanenbaum and Miller agreed to work with GAP to establish a "reasonable time schedule" to respond to the subpoena, and sought to minimize GAP's objection that responding to the subpoena would cause GAP unreasonable burden and expense by promising to pay "any reasonable expenses GAP incurs in searching for and producing" documents. After this exchange of correspondence, the parties met through their respective counsel in mid-May. Food Lion was represented by four attorneys from the law firm of Akin, Gump, Strauss, Hauer & Feld; GAP was represented by Paul Alan Levy. GAP's in-house general counsel, Robert Seldon, also attended in order to explain the nature of GAP's files and thus to help Food Lion understand why, in the circumstances, its subpoena was so burdensome.
At this meeting, Mr. Levy objected that many of the requests in Akin Gump's subpoena overlapped, making it especially difficult to respond to the subpoena in an orderly manner. Akin Gump explained that the reason for the overlapping requests was that different judges take different views of the sort of discovery requests that are appropriate, some preferring highly detailed and precise descriptions of the most relevant documents, while others consider general requests to be more proper. Moreover, different litigants are more or less straightforward in construing the scope of discovery requests. In any event, Akin Gump explained that they wanted to be sure they got all documents relevant to their thirteenth and fourteenth affirmative defenses, which posit that any decline in stock value was not caused by alleged misrepresentations about its food handling processes, and that those processes were sound. Rather, the PTL broadcast (and thus the loss of stock value) was alleged to be the product of a conspiracy to harm Food Lion organized by the UFCW, with a number of others (possibly including GAP). The Akin Gump attorneys stated that they hoped to use discovery to demonstrate the existence of this scheme, and expressly disclaimed any other basis for the subpoena. GAP Exh. 18.
Mr. Seldon, for his part, told Akin Gump that GAP's investigation of Food Lion flowed from its own policy interests, not any desire to help the UFCW with its organizing, and that GAP's files would not reflect the conspiracy that Food Lion imagines. He also emphasized that, in any event, most of the papers relating to Food Lion and the PTL broadcast were to be found in the files of Elaine Dodge, who was on leave. The meeting concluded as GAP agreed, despite its belief that the defense had no logical bearing on the litigation and so did not form a proper basis for discovery, to begin by reviewing Ms. Dodge's files, and then contact Food Lion to discuss where the subpoena production would go from there.
After this meeting, GAP's staff worked diligently to find documents that might pertain to the theory of the case stated by Akin Gump, so that any such documents could be reviewed by GAP staff and by counsel for relevance and privilege. Meanwhile, discussions between Mr. Tanenbaum and Mr. Levy put more limits on the scope of the subpoena, and so enabled GAP to fix the date by which it could complete its search and review process. Thus, in several letters and telephone calls on May 23, 24, and May 25, 1995, GAP Exh. 19-22, counsel agreed that GAP would produce any documents that it was willing to disclose within three weeks, by Monday, June 12, 1995, and would produce a privilege log within four days after that, or June 16, 1995. Mr. Tanenbaum agreed that GAP need not look in every file that might have arguably relevant documents, but only in locations that were "likely" to contain such documents, and that the cut-off dates that the forum court had adopted limiting Food Lion's obligation to produce documents to plaintiffs, would also apply to GAP's obligations under the subpoena. GAP Exh. 23. Lastly, because many of the documents might be responsive to several different discovery requests, Mr. Tanenbaum agreed that GAP's response to the subpoena could consist of a document-by-document log, stating the objections pertaining to each document, instead of a request-by-request response stating objections to each request.
When June 12 arrived, GAP requested an extra two to three days to finish; Mr. Tanenbaum agreed to extend the time for responding but asked that, instead of requiring him to come look at whatever documents GAP was willing to provide, GAP should just make copies and send them to him. He promised that, on delivery, he would "pay the costs of both copying and GAP's work to get to this point." GAP Exh. 24. By letter of June 15, Mr. Levy provided copies of the documents that GAP was willing to produce (despite continuing relevance objections), and submitted the bill for GAP's copying and work. GAP Exh. 25.
On June 21, 1995, GAP's privilege log was completed as promised. The log consisted of three parts. First was a seven-page letter from Mr. Levy that described the search that GAP had performed, the limitations that had been imposed on the search, and the general objections that applied to each and every document that had been withheld. GAP Exh. 26. As Mr. Levy explained, and as the affidavit of Sarah Levitt recounts, GAP searched all files that were likely to contain any documents relating either to Food Lion, the PTL broadcast, or the UFCW in connection with either Food Lion or the retail food industry generally. Although GAP did not perform a general search for documents pertaining to a variety of other individuals or organizations identified in Food Lion's subpoena, GAP does not maintain its files based on organizations or individuals; its files are project-based. Thus, any documents GAP had relating to any of those persons in connection with Food Lion, the PTL broadcast, or the UFCW's retail food side would have been found and reviewed through the search. GAP further identified all members of its staff whose files had been searched, as well as some sources outside GAP's own files that had been considered to ensure that documents within GAP's "control" and not just its possession and custody, were reviewed.
The letter also explained that, because of the explanations provided by Akin Gump during the May meeting, GAP did not look for categories of documents unrelated to Food Lion, the PTL broadcast, or UFCW's operations in connection with retail food.(3) Specifically, Mr. Levy explained, GAP had not undertaken to review its ten years of work on food safety issues generally, including studies and policy work relating to the meat and poultry industry.(4)
Finally, the letter portion of the log detailed GAP's general objections to the production of documents covered by the request. First, Mr. Levy explained, each document withheld was irrelevant to the issues in the case and beyond the scope of discovery under Rule 26. Although Akin Gump now claims that GAP somehow failed to make relevance objections for each of the documents in the log, page 4 of the cover letter was unambiguous -- "the foregoing objections apply to every document that GAP is withholding."
The letter also explained that although the relevance objection (and other objections stated in GAP's April 24 papers) applied to every withheld document, a number of privileges applied only to particular documents. The letter went on to explain the legal basis for each of the privileges and objections set forth in the log.
The second part of the log, GAP Exh. 27, was a twenty-five page enumeration of each responsive documents that fell within the date limitations -- hundreds of pages in all. For each document, the log set forth the number of pages, the title, a brief description of the contents of the document (including a date where available), and the list of privileges that applied to that document.
The third part of the log was a cover sheet that defined abbreviations used in the log and reiterated that GAP continued to assert the objections (such as relevance and failure of service) that were first advanced on April 24, 1995. GAP Exh. 28.
Although the log (including its cover letter) was ready for delivery on June 21, Akin Gump had not yet paid as it had promised. Therefore, Mr. Levy sent Mr. Tanenbaum a letter asking when payment would be received. GAP Exh. 29. Mr. Tanenbaum responded that he would pay only for copies, not for GAP's work. GAP Exh. 30. Mr. Levy reminded Mr. Tanenbaum that GAP would not have been obligated either to perform its search or to prepare the necessary objection log had Food Lion not agreed to pay for that work, and that GAP had relied on Food Lion's promise of payment in foregoing its right to move to quash. GAP Exh. 31. In effect, Food Lion had tried to obtain information about the contents of GAP's files, in the form of descriptions in its objection log, based on a promise to pay, then reneging on its promise.
Ultimately, after GAP explained that the actual cost to GAP of the time of Sarah Levitt (who did most of the work) was $27 per hour, Mr. Tanenbaum agreed to pay for her work at that rate. GAP Exh. 32-36. In an effort to get the discussions between the parties moving, and even though in the forum court, a party demanding discovery may be required to pay attorney fees for time spent by nonparties responding to discovery, Angell v. Shawmut Bank Connecticut Nat'l Ass'n, 153 F.R.D. 585, 590-591 (M.D.N.C. 1994), GAP agreed to provide its log so long as Ms. Levitt's actual cost was covered up front. The log was then provided by letter of June 29, GAP Exh. 37, which explained that Mr. Levy would be unavailable for the next two weeks due to family matters and an office move.(5)
On July 3, Mr. Tanenbaum wrote to complain that GAP had not complied with its agreement to provide a document-by-document response, including both privilege and relevance objections "on the log." Mr. Tanenbaum demanded that GAP provide this information immediately, and insisted that GAP's own staff meet with him to discuss the subpoena during Mr. Levy's absence. GAP Exh. 39. Mr. Tanenbaum then began to deal directly with Mr. Seldon, demanding that he provide specified information by certain deadlines. GAP Exh. 40-42. Specifically, by letter of July 6, Mr. Tanenbaum demanded (1) a list of document requests for which GAP did not search; (2) production of all documents withheld by GAP but not listed on the objection log; and (3) a description of the limits placed on GAP's search for documents relating to certain topics.
Mr. Levy tried without success to reach Mr. Tanenbaum by telephone, then responded to these demands on July 7. GAP Exh. 18. As Mr. Levy explained, Mr. Tanenbaum's accusation rested on an apparent misunderstanding of GAP's log. He pointed to the three parts of the log -- the document list, the key to the list, and the cover letter explaining the log. The letter part of the log specifically reiterated GAP's objections, including the objections based on relevance, that applied without exception to every document listed in the log; the log could have included the word "relevance" next to every document, but that would have been an unnecessary exercise in formalism. Mr. Levy further explained that GAP had, in fact, searched for and identified in its log every document relating to Food Lion, to the PTL broadcast, and the UFCW if related to retail food, despite GAP's view that these issues were beyond the scope of discovery. Moreover, he stressed, any document relating to the variety of entities and individuals named in Mr. Tanenbaum's letter were included in the search, and would be in the log if they were found, so long as the document was within the date restrictions and had anything to do with Food Lion, the PTL broadcast, or retail food. Mr. Levy also indicated that, pursuant to an oral request from Mr. Tanenbaum to Mr. Seldon, GAP was willing to provide a list of the specific document requests for which GAP had found no documents. Finally, Mr. Levy expressed a willingness to hear Mr. Tanenbaum's explanation of why GAP should look for documents beyond the issues of Food Lion, the PTL broadcast, and retail food, and suggested a personal conference for that purpose.
By letter of July 10, Mr. Tanenbaum flatly refused to conduct a personal conference with respect to the subpoena or to provide any explanation of why GAP should search any further for documents. GAP Exh. 43, at 3. He simply asserted that the documents sought were "clearly relevant." Despite the detailed responses contained in Mr. Levy's July 7 letter, Mr. Tanenbaum upbraided Mr. Levy for refusing to answer the three questions.
Finally, on July 21, Mr. Levy provided Mr. Tanenbaum with the list of document requests with respect to which no responsive documents had been found. GAP Exh. 44. Although continuing to object to Food Lion's complaints about the scope of GAP's search in response to the subpoena, Mr. Levy emphasized that he remained ready and willing to meet with Mr. Tanenbaum to discuss the scope of the search, and to hear any explanations for expanding the search. Indeed, at no time, either in person or in correspondence, had Food Lion ever explained why, for example, GAP's contacts with the media about whistleblowers in the nuclear energy industry have any bearing on this lawsuit. As the letter acknowledged, however,
You have said that you are unwilling to entertain such further discussions, because you think you have told us enough. If you continue to maintain this position, then there is nothing more that we can do at this time.
Id. at 2.
Almost three weeks later, having made no further communication about the search, Food Lion filed this motion to compel.
1. Introduction and Summary of Argument
Food Lion's motion to compel is based on two fundamentally incorrect assertions. On the "processing agreement" issue, Food Lion asserts that GAP violated an agreement about the manner in which GAP would respond to the subpoena duces tecum, by failing to identify documents that had been withheld on grounds of relevance. On the "scope of the search" issue, Food Lion claims that GAP improperly failed to search for and identify documents covered by most of the document requests. Food Lion is wrong on both points.
It is also important, however, to emphasize what is not at issue in this motion -- the validity of the privileges and other objections that GAP has raised to the production of identified documents. The privileges and objections are not at issue because, as Food Lion admits, it has not yet met its "meet and confer" obligations under the local rules with respect to those privileges. Indeed, at the time it filed its motion, it had barely identified in writing the parts of GAP's privilege log that it deemed deficient. Mem. at 15-16 n.17 ("just begun to discuss" these issues). Food Lion does, to be sure, invoke the issue of the privileges through its contention that GAP's alleged non-compliance with the processing agreement between the parties warrants a declaration that all privileges have been waived by GAP. However, because the non-compliance argument is so clearly fallacious, there is no ground for waiver, and Food Lion's effort to short-circuit GAP's First Amendment, newsgathers', attorney-client, work-product, and other privileges and objections must fail.(6)
Another matter that is not at issue in this motion is whether Food Lion's basic theory of relevance -- that alleged GAP participation in a conspiracy with the UFCW and PTL to harm Food Lion is a defense to a federal and state shareholder fraud suit -- provides a proper ground for discovery against GAP. As shown below, and as Food Lion has been repeatedly informed, GAP has searched for and identified in its privilege logs all of the documents in its files that bear on that theory. The only documents for which GAP has not searched and that is had not identified are those which are unrelated even to that theory. Accordingly, the question on this motion, apart from GAP's alleged noncompliance with the processing agreement, is whether Food Lion may force GAP to search even for documents with no bearing on Food Lion, the UFCW's retail food operations, or the PTL broadcast.
In sections 4 and 5 of the Argument below, we respond to the "processing agreement" and "scope of search" issues in turn. But, before reaching those arguments, we address two procedural objections to Food Lion's motion that warrant the Court's denying the motion to compel without reaching the processing agreement or scope of search issue at this time.
2. Because Food Lion Has Not Served Its Subpoena on GAP in the Manner Required by the Federal Rules, the Court Has Not Acquired Personal Jurisdiction Over GAP.
As this opposition is filed, Food Lion has yet to file a proof of service of the subpoena. There is a reason for this failure -- service has never properly been effected on GAP, and so the Court has yet to acquire personal jurisdiction over GAP. The motion to compel must be denied for that reason alone.
When personal jurisdiction is contested, the party seeking relief from the Court bears the burden of demonstrating the Court's power over the other litigant. Reuber v. United States, 787 F.2d 599 (D.C. Cir. 1986). GAP's initial objections, served on Food Lion's counsel before the return time stated on the subpoena, stated, "Service of the subpoena was not effected in accordance with Rule 4(h)(1) of the Federal Rules of Civil Procedure," Exh. 15, ¶ 1, and GAP's privilege log incorporated these objections by reference. GAP Exh. 28. Given this notice from GAP, Food Lion's failure to discuss the issue of service in its memorandum, not to speak of placing its proof of service in the record, is inexcusable.(7)
Under the Federal Rules, when process is delivered for the first time to a person that has not yet become subject to the jurisdiction of the court, service must be effected in the manner prescribed by Rule 4 of the Federal Rules. This is true whether the process is a summons and complaint under Rule 8 or an amended complaint that adds a new party under Rule 14, Rule 15 or Rule 25. E.g., Ransom v. Brennan, 437 F.2d 513 (5th Cir. 1971). Food Lion's own authority, cited (on a different proposition) in its memorandum, at 20, provides that Rule 4 service is required for a subpoena served on a nonparty pursuant to Rule 45. Ghandi v. Detroit Police Dep't, 74 F.R.D. 115, 120-121 (E.D. Mich. 1977); In re Electric & Musical Indus., 155 F. Supp. 892, 893 (S.D.N.Y. 1957). Mere service under Rule 5 on the subpoena target's attorney does not give the Court power to enforce the subpoena. Harrison v. Prather, 404 F.2d 267, 273 (5th Cir. 1968). GAP is not a party to the underlying case, and consequently service upon it must comply with Rule 4.
Because GAP is a corporation, Rule 4(h)(1) requires delivery of the process "to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process." The process server did not give the subpoena to an officer, managing or general agent. Instead, he gave it to Robert Seldon, GAP's "general counsel," who is not authorized to accept service. Indeed, as Mr. Seldon's declaration reflects, he specifically told the process server that he was not authorized to accept service but was taking it as a courtesy only.(8)
Accordingly, GAP was not properly served, and the motion to compel should be denied for that reason.(9)
3. Food Lion Has Not Conferred in Person or by Telephone With Undersigned Counsel About the Issues Raised in this Motion.
The motion to compel should also be denied because Food Lion did not comply with Rule 108(m) of the Local Rules, which requires a party desiring to file a non-dispositive motion to confer with the target of the motion, either in person or by telephone, in an attempt to resolve the dispute and thus avoid the need to file the motion. Had Food Lion met this duty, the conference would surely have resolved most matters about which it complains. Instead, it unilaterally declared that no conference was needed or appropriate because of alleged non-compliance by GAP with the "processing agreement" reached during a conference in the immediate aftermath of the delivery of the subpoena.
Food Lion's explanation is misplaced. GAP based its initial search on the discussions conducted by the parties about the scope of the subpoena and the reasons why it had been served. Although GAP believes that its search was sufficient, and told Food Lion the reasons for that belief, GAP had also agreed to meet after the initial search to consider whether a further search were needed, and again made quite clear that it remained open to the possibility of a broader search, if Food Lion could explain what search was needed, and why. GAP repeatedly urged that the parties meet to discuss the scope of the search issue.(10)
Food Lion's counsel flatly refused to meet for this purpose. Its excuse for taking this position was that GAP would not respond to three written questions posed by Food Lion, supra page 20. GAP Exh. 41 (posing questions), 43 (refusing to meet and confer). Food Lion cites no authority for the proposition that a movant can unilaterally impose conditions on an adversary that will excuse compliance with the "meet and confer" requirement. Moreover, GAP met all three conditions. See supra pages 20-21; GAP Exh. 18.
Then Food Lion made a new demand for information, which it told GAP's staff was an adequate substitute for a request-by-request response to the subpoena. It demanded a list of requests for which no documents had been found. GAP Exh. 18 at 2, 44. Again trying to meet Food Lion half-way and establish a basis for personal discussions, GAP provided that list, sought a personal conference to resolve any remaining issues about the scope of the search, and urged Food Lion's counsel to reconsider its refusal to meet. GAP Exh. 45. Food Lion still would not meet with GAP's counsel.
4. GAP Complied With the "Processing Agreement" By Identifying the Documents Within the Scope of Its Search and Providing a Log of Privileges and Objections for Each Document.
Food Lion contends that GAP breached the agreement reached between counsel about the manner in which GAP would respond to the subpoena, and that GAP then failed to provide a response to the subpoena that listed each request and the reasons why each was objectionable. As a remedy for this breach, Food Lion asks the Court to impose sanctions in the form of a waiver of all objections, plus attorney fees and costs. In fact, however, as explained in this section of this memorandum, GAP complied with all of its agreements with Food Lion. The motion on this ground should be denied.
Food Lion correctly asserts the existence of a agreement about the manner of responding to the subpoena. Indeed, given the extraordinarily intrusive subpoena, seeking a huge number of documents involving contacts with confidential sources, the media, and a variety of lawyers and other policy groups on a wide range of subjects over a ten-year period, with a return date only five business days after issuance, Food Lion had to reach some agreement to avoid a motion to quash the subpoena outright. Moreover, as Food Lion explained, many of the requests were deliberately framed to cover the same documents in a number of different ways, in order to appeal to the preferences of whichever judge might ultimately receive a motion to compel. See supra page 14. In those circumstances, responses to many of the document requests would have included the same lists of documents, thus imposing unnecessary burdens on GAP.
To avoid a motion to quash based on the extreme burdensomeness of the subpoena, Food Lion agreed in late May that GAP would respond to the subpoena by mid-June, and further agreed to pay for the work that GAP's staff and representatives would have to do in order to prepare a response. Moreover, Food Lion agreed that GAP need not respond on a request-by-request basis, so long as it provided a document-by-document log showing which privileges and other objections, including relevance, were being advanced for each of the documents being withheld. See supra pages 15-16.
Accordingly, even if GAP would otherwise have had to provide a request-by-request response -- which is doubtful, given the burdens created by the deliberate overlap in the subpoena -- Food Lion's agreement relieved GAP of any such obligation. And Food Lion presents no basis for releasing it from its agreement to accept a document-by-document response.
In fact, GAP fully complied with the agreement. It completed a lengthy search of its files, within the scope of the search to which Food Lion had apparently agreed -- it tried to find all documents relating in any way to Food Lion, all documents relating to the PTL broadcast, and all documents relating to the UFCW (at least insofar as the retail food industry is concerned). It Bates-numbered the responsive documents (insofar as they were within the dates on which counsel had agreed), and created a document log that identified each and every document responsive to the search terms, whether or not the document was ultimately released to Food Lion. Levitt Decl., ¶¶ 4-5, 7-17.
Although GAP believes that none of the documents withheld, and indeed none of the documents produced, are relevant to the litigation, no document was withheld solely on ground of relevance. GAP produced every document to which no valid privilege applied. On the other hand, GAP believes that every document that has been withheld is both irrelevant and privileged. The relevance objections are the same for every document. The privilege objections, however, vary from document to document, as the log indicates.
The document log identifies the bases for withholding in different places, depending on whether the objection is advanced for all documents uniformly, or only with respect to specific documents. For those objections that vary from document to document (namely, the privileges), the individual objections are listed next to each document to which they pertain. The objections that do not vary from document to document, however, are set forth in the cover letter which, in turn, incorporates by reference the objections previously served on Food Lion.
Food Lion does not deny that GAP has clearly stated that it objects on relevance grounds to the production of every document, whether or not withheld -- that fact has been conveyed so often that even Food Lion cannot claim otherwise. Instead, Food Lion's motion is based on the formalism that the document-by-document part of the log does not have a separate column labeled relevance so that relevance objections might be individually indicated next to each document. It would have been just as silly to list "improper service" next to each document. Because the relevance objections were clearly made, GAP complied with its agreement. Insofar as the motion contends otherwise, it is simply wrong and should be denied.
5. GAP Has Searched for, and Identified in Its Log, All Documents Covered by the Theory of Relevance Advanced in Food Lion's Motion to Compel; the Few Remaining Requests Should Be Denied Enforcement.
According to Food Lion's Memorandum In Support of Motion to Compel, both the subpoena, and the motion to compel, seek to aid its investigation of its defense that any loss sustained as a result of the PTL broadcast was the consequence of a conspiracy by the UFCW against Food Lion, in which GAP allegedly participated. "In establishing this defense, Food Lion needs to investigate the role GAP and the UFCW played in the development of the extremely negative portrayal of Food Lion on the PrimeTime Live show, as well as GAP's relationship with the UFCW and other associated entities." Mem. at 21. The correspondence on which Food Lion relies to establish that it conferred with GAP's counsel before filing the motion similarly described the purpose of the subpoena in narrow terms: "In your letter (at p.4), you try to manufacture a controversy by claiming that our inquiry suggests we are looking for documents totally unrelated to Food Lion, the UFCW or PrimeTime Live. You are wrong. All of the requests at issue deal with the subjects just described." GAP Exh. 43, at 2-3 (emphasis added). This description of the focus of the subpoena is the same one that Akin Gump gave in its initial meeting with GAP, on which GAP formed the parameters of its document search.
According to Food Lion, it has moved to compel because GAP refused to search its files for all documents relating to these three subjects, and then tried to obfuscate the matter by refusing to describe the limits that it had placed on its search. This charge is false. These are precisely the subjects for which GAP conducted its document search, and if the subpoena and the motion were genuinely limited to these subjects, the motion would be moot.
Food Lion's subpoena ranges far beyond the theory of relevance offered to justify its motion to compel. The subpoena demands all documents pertaining to investigations of the meat and poultry industry, even though, so far as GAP is aware, Food Lion is involved only in the retail food industry. The subpoena demands documents specifically related to two identified slaughterhouses. And it lists several entities and organizations for which it demands all documents, even if unrelated to the three subjects on which the memorandum claims that its subpoena and motion are based. These extraneous matters are wholly unrelated to the theory of relevance on which the motion to compel is predicated.
As GAP has explained to Food Lion in the correspondence that preceded this motion, and as the accompanying declarations now attest, the search performed by GAP was fully adequate to locate the documents within GAP's possession, custody and control relating to the three subjects. GAP's files are not centrally organized, and it generally does not maintain files on individuals (such as, to take a names from the subpoena, Nicholas Clark), or organizations (such as the Food Service and Allied Trades Department of the AFL-CIO). Instead, it maintains files on substantive projects or cases (such as the Food Lion investigation). Thus, any items in the various categories covered by the subpoena would be in specific subject files. To search for documents under the subpoena, GAP had to identify the project and case files that were likely to contain documents described by the subpoena, and review the items in each such file for responsiveness and privilege. Levitt Decl., ¶¶ 4-5.
As Ms. Levitt's declaration establishes, GAP searched every file that had any bearing on Food Lion, on the PTL broadcast, or on the UFCW insofar as related to retail food. Id. All documents described by the subpoena would have been found by the search, so long as they were within those three parameters. Thus, GAP's search covered not only the general requests for all documents relating to Food Lion (¶¶ 1, 36), but also the following paragraphs that incorporate a reference to Food Lion as a necessary part of the search terms: ¶¶ 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 15, 16, 17, 18, 19, 20, 23, 33, 35. And the search also included each of the following paragraphs of the subpoena, even though they do not expressly refer to Food Lion, to the extent that the documents relate to Food Lion, the PTL broadcast, or the UFCW's retail food operations: ¶¶ 24, 25, 26, 27, 28, 29, 30, 31, 32.
Because GAP searched for documents covered by each of these paragraphs, there is no basis for Food Lion's motion to compel GAP to look for them. Accordingly, the following parts of Food Lion's motion alleging inadequacy of GAP's search should be denied: Part C, sections 1, 2, 3, 4, 5, 7, and 8 (pages 23-30 and 31-32).(11)
Food Lion's real objection here is not that GAP failed to look for these documents, but that it didn't find any. But the reason for this failure is that, so far as GAP is aware, the massive conspiracy on whose existence Food Lion purports to be staking its defense of the shareholder suit does not exist, and certainly is not evidenced by GAP's files. Food Lion's disappointment over the dearth of evidence in GAP's files that bear on its claims cannot sustain its motion to compel.
In its motion, Food Lion speculates that GAP must have failed to search diligently, because given "GAP's long-standing relationship with the UFCW and the year-long 'investigation' of Food Lion that GAP conducted in conjunction with the UFCW, it is implausible that GAP does not have additional documents relating to its relationship with the UFCW . . .." Mem. at 27. The reason for the dearth of documents is not, however, a failure of diligence in the search, but the error in Food Lion's assumptions about the way in which GAP conducted its investigation. GAP makes no bones about the fact that it obtained names of potential interviewees from the UFCW, but the UFCW did not participate in GAP's investigation -- it did not review the results, did not have access to the affidavits, and did not participate in editing. Clark Decl., ¶ 20. That, and not Food Lion's baseless charge of inadequate search, is why so few documents exchanged with the UFCW appear in the document log.(12)
The one group of documents for which GAP has not searched are those pertaining to the meat and poultry industry generally, and to two specific meat packers. GAP has conducted a long-term advocacy campaign against government deregulation of that industry; it has conducted investigations on its own, and it has participated in discussions about the industry with other groups as part of the "Safe Food Coalition." Levitt Decl., ¶ 3; Clark Decl., ¶ 9. Although the subpoena itself does not demand documents relating to the Safe Food Coalition generally -- the Coalition is mentioned only in paragraphs relating to Food Lion, and GAP searched for all documents described by those paragraphs -- GAP's relationship to the Coalition involves consideration of the health and sanitation conditions in the meat and poultry industry.
Thus, read literally, subpoena paragraphs 22 and 34 pertaining to the meat and poultry industry would require GAP to search all of its files pertaining to its advocacy and investigatory work with this Coalition on such issues. Once the search was completed, GAP would have to review all documents in these files and list them, one by one, with sufficient description of their contents to show the privileged nature of such documents, while, at the same time, effectively conveying to Akin Gump key information about the nature and extent of the work of the Safe Food Coalition over the years.
As Ms. Levitt's declaration attests, ¶ 6, this process would be extremely burdensome, dwarfing the 125 hours that GAP had to spend on the search already performed for documents relating to Food Lion, the PTL broadcast, and the UFCW's retail food side, in which GAP's involvement has been far more recent and far more limited. Moreover, because GAP devotes its resources to attorneys rather than support staff, GAP would be forced to assign attorneys to the search and review process, as it did in responding to other portions of the subpoena. Clark Decl. ¶ 22. Ms. Levitt estimates that more than 700 hours of staff time would be required for this project, diverting GAP's scarce resources from its substantive work. Decl. ¶ 6. Even if GAP were compensated at market rates for its staff attorneys' work in this regard, GAP does not generally inform the public of the details of its operations and those of the Safe Food Coalition, and it does not desire to begin selling such services to its adversaries now.
Nor, indeed, is burdensomeness the only reason why GAP objects to the meat and poultry industry aspects of the subpoena. In order to create a document log, pursuant to both the processing agreement and by the normal rules that apply to the determination of relevance and privilege objections, GAP would likely have to disclose many confidential details about its policy and advocacy work, both with confidential sources and with other advocacy organizations. Such details would include the topics of correspondence and other papers prepared by GAP or received from others; the dates on which various issues were being addressed; the government officials to which GAP and its allies were addressing themselves; and similar pieces of information.
Political adversaries who oppose the kinds of regulations and decisions advocated by GAP and its allies would find such information about GAP's and the Safe Food Coalition's invaluable in deciding where to focus their own efforts, even if the details of the communications were ultimately held privileged. Clark Decl. ¶ 26. And GAP's disclosure of such information could easily make other groups less willing to include GAP in confidential discussions of strategy. Id. ¶ 27. We do not doubt that Akin Gump, as Washington representative for such large food comglomerates as Archer Daniels Midland, id. ¶ 25, has a keen interest in obtaining such information; however, discovery in this unrelated case is not a proper way to obtain it.
Nor is there any reason to believe that documents about the meat and poultry industry are within the proper scope of discovery in this case. Food Lion's memorandum, at 30-31, reveals the relevance argument that it refused to provide in advance by personal conference with GAP's counsel -- it speculates that the documents will "demonstrate a pattern of participation by GAP in union-sponsored campaigns against employers and thus the likelihood that the purpose of GAP's alliance with the UFCW and ABC in developing the PrimeTime Live story was to generate negative publicity about Food Lion." This argument is so preposterous that it is not at all surprising that Food Lion is reduced to arguing that lack of relevance is not a valid ground for objecting to its discovery. Mem. at 20.
It is hard enough to believe that an alleged conspiracy involving ABC News and PTL is relevant to the case. After all, the complaint's allegation that Food Lion misleadingly characterized sanitation and food safety conditions in its stores may place in issue the truth of the allegations on the PTL broadcast, but the broadcast itself is mere hearsay, which cannot be introduced as evidence on the merits of the allegations made by the shareholders. Thus, ABC News' state of mind simply is irrelevant to the issues in this case, and the possibility that PTL may have made misjudgments in deciding whom to believe in its investigation, or even if it deliberately set about to defame Food Lion, is quite beside the point. Significantly, Food Lion cites no authority for the proposition that a conspiracy by others to injure a company is a defense to a shareholder suit.
The effort to drag GAP into its conspiracy accusations against PTL goes off on still a further tangent, because PTL has made clear that it conducted its own interviews of anybody identified by GAP, not to speak of doing its own investigation. GAP Exh. 4, at 7, 9. Accordingly, GAP's mens rea, whatever it may be, is irrelevant to the issues in the shareholder case.
But even this factually flawed theory is not sufficient to support Akin Gump's attempt to use the subpoena power to look into GAP's work in the meatpacking industry. For that, Akin Gump must go even further afield. Unable to show the anti-Food Lion conspiracy it imagines, and noting that GAP's records show little involvement with the UFCW in that connection, Akin Gump seeks to take the next step away from reality, saying that it hopes to show that the world is full of conspiracies against employers generally, and thus it is more likely that Food Lion, too, is the victim of a conspiracy. Food Lion provides no reason to believe that it has any hope of turning up the evidence that provides its rationalization for taking this fishing expedition into the Sahara desert.
In a desperate attempt to shore up this argument, Akin Gump uses phony citations to suggest that there is evidence of conspiracy between GAP and the UFCW in the meatpacking industry, thus warranting this part of it