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In re Processed Egg Products Antitrust Litigation

United States District Court, E.D. Pennsylvania

October 22, 2019

IN RE PROCESSED EGG PRODUCTS ANTITRUST LITIGATION THIS DOCUMENT APPLIES TO: ALL DIRECT ACTION PLAINTIFF CASES

         MULTIDISTRICT LITIGATION

          MEMORANDUM

          GENE E.K. PRATTER, UNITED STATES DISTRICT JUDGE

         Introduction

         With trial fast approaching, the parties have tasked the Court with a flock of motions in limine. The Court has already resolved all but three of the remaining motions, two of which are addressed in this Memorandum.

         First is the Direct Action Plaintiffs' (DAPs) motion in limine to preclude reference to a deposition taken without their participation in a separate action. Doc. No. 1895. The DAPs ask the Court to prohibit the defendants from admitting prior deposition testimony taken in a separate state court antitrust action in Kansas. The Court denies the motion because neither the Federal Rules of Civil Procedure nor the Federal Rules of Evidence require excluding the evidence.

         Second is the defendants' motion in limine to exclude complaints filed by Compassion Over Killing and associated documents. Doc. No. 1903. The defendants argue that such complaints and their associated documents are inadmissible because they are irrelevant, prejudicial, hearsay, and concern settlement agreements. The Court grants the motion in part and denies the motion in part as set forth below.

         Background

         The DAPs accuse the defendants of conspiring to reduce the supply of eggs, in turn artificially driving up prices and causing the DAPs to pay more for eggs than they would have paid absent the alleged conspiracy. At the center of this scheme is the UEP Animal Care Certified Program, participation in which was marketed to consumers in part through placement of a UEP Certified Seal on members' egg cartons. The DAPs allege that the UEP Certified Program was not created to promote animal welfare, but to depress egg supply. The defendants deny that the UEP Certified Program or any of its members restrained trade.

         Discussion

         I. The DAPs' Motion to Preclude Reference to a Deposition Taken Without Their Participation in a Separate Action

         The DAPs seek to prohibit the defendants from presenting at trial the prior deposition testimony of Beth Schnell, the president and CEO of Sparboe Farms, Inc., who was deposed in connection with a separate state court antitrust action in Kansas. The DAPs claim that because they were not parties or successors in interest to any parties in that action, use of the prior deposition testimony at this trial would be improper under the Federal Rules of Civil Procedure.

         A. Admissibility Under the Federal Rules of Civil Procedure and Evidence

         Federal Rule of Civil Procedure 32(a)(8) permits an earlier "lawfully taken" deposition to "be used in a later action involving the same subject matter between the same parties, or their representatives or successors in interest, to the same extent as if taken in the later action." Rule 32(a)(8) also instructs that "[a] deposition previously taken may also be used as allowed by the Federal Rules of Evidence." Fed. R Civ. P. 32(a)(8). The defendants agree that the DAPs were not parties to the Kansas action but argue that the deposition is still admissible under Federal Rule of Evidence 804(b)(1), rendering it also admissible under Rule 32(a)(8). The Court agrees and therefore denies the DAPs' motion.

         Federal Rule of Evidence 804(b)(1) provides a hearsay exception for testimony that was given by an unavailable witness at a "lawful deposition, whether given during the current proceeding or a different one," that "is now offered against a party... whose predecessor in interest had ... an opportunity and similar motive to develop it by direct, cross-, or redirect examination." Here, Ms. Schnell is "unavailable" for the purposes of Rule 804 because she lives outside of the Court's subpoena power, making (1) Ms. Schnell "absent from the trial," and (2) the defendants unable, "by process or other reasonable means, to procure [her] attendance." Fed.R.Evid. 804(a)(5)(A). The key question then ...


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