United States District Court, E.D. Pennsylvania
IN RE PROCESSED EGG PRODUCTS ANTITRUST LITIGATION THIS DOCUMENT APPLIES TO: ALL DIRECT ACTION PLAINTIFF CASES
E.K. PRATTER, UNITED STATES DISTRICT JUDGE
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.
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
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.
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.
The DAPs' Motion to Preclude Reference to a Deposition
Taken Without Their Participation in a
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.
Admissibility Under the Federal Rules of Civil Procedure and
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.
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 ...