The opinion of the court was delivered by: Karen E. Schreier Chief Judge
Beef Product, Inc. (BPI), a nonparty to the above entitled action, moves to quash two subpoenas issued by Greater Omaha Packing Company (GOPAC) and for a protective order prohibiting GOPAC from seeking further discovery. GOPAC does not resist the motion. The motion is granted.
BPI manufactures boneless lean beef. BPI is based in Dakota Dunes, South Dakota, and has processing plants in South Sioux City, Nebraska; Waterloo, Iowa; Finney County, Kansas; and Amarillo, Texas.
In the fall of 2009, a strain of E coli bacteria broke out in New England from beef products. As a result of this outbreak, multiple individuals brought separate actions against Fairbank and GOPAC, including the underlying action in this case Lori Precourt v. Fairbank Reconstruction Corp. et. al. (Precourt), pending in the District of New Hampshire. The action alleges that on October 1, 2009, Carolyn Black consumed ground beef and two days later become ill with symptoms consistent with E coli. Black was hospitalized and died on October 30, 2009. Lori Precourt, as administrator of Black's estate, claims that the ground beef containing the E coli bacteria was processed and distributed first by GOPAC and then by Fairbank.
Various state and federal agencies commenced investigations about the E coli outbreak. On October 31, 2009, the United States Department of Agriculture (USDA) Food Safety and Inspection Services announced that Fairbank would voluntarily recall over 500,000 pounds of ground beef produced at its Ashville facility between September 14 and September 16, 2009. The recalled beef was processed by Fairbank using raw beef trim manufactured by GOPAC. BPI also supplies product to Fairbank.
Besides the meat sold to Fairbank, GOPAC also sold product to Culver City Meat Company located in California. Culver processed the GOPAC meat on September 22, 2009. When the USDA tested the ground beef at Culver's facility, it found that it contained E coli bacteria and that E coli was a genetic match to the strain associated with the New England outbreak. After investigating GOPAC's operations, the USDA issued a Notice of Intended Enforcement and threatened to shut down GOPAC's facilities.
Before GOPAC issued subpoenas in this case, it twice served subpoenas on BPI in Long v. Fairbank Farms et. al., a similar action pending in Maine (Long). BPI did not respond because GOPAC failed to comply with the procedural rules for serving subpoenas. On November 24, 2010, GOPAC reissued courtesy copies of subpoenas for documents and ordered BPI to produce documents at the Holiday Inn Express in Vermillion, South Dakota, on December 10, 2010. GOPAC also issued a subpoena for a Rule 30(b)(6) deposition for the same time and location. On November 30, 2010, BPI informed GOPAC that if it effected service of the subpoenas, BPI would object. On December 1, 2010, the two subpoenas were delivered to Rich Jochum, BPI's corporate administrator and registered agent.
BPI informed GOPAC, in writing, that it objected to the subpoenas on December 6, but offered to voluntarily produce certain documents if GOPAC would forgo further discovery from BPI. Among the documents BPI agreed to voluntarily produce were all sale invoices and certificates of laboratory analysis relating to the BPI products that could have potentially been part of any product processed by Fairbank on the dates involved in the recall. BPI also offered an affidavit stating that the company made no sales to Culver or its entities during the pertinent time period.
During a December 8 telephone conversation, BPI's counsel again offered to GOPAC's counsel that BPI would voluntarily disclose the above-mentioned documents, but GOPAC's counsel did not accept the offer. When asked what specific documents it sought, GOPAC's counsel failed to identify any particular documents. Instead, GOPAC's counsel stated that it would serve new subpoenas on BPI. Because discovery closed in Long on December 20, GOPAC stated that it would serve new subpoenas in Precourt.
On December 14, 2010, GOPAC served two subpoenas in Precourt on BPI by leaving the subpoenas with Jochum's wife at his home. One subpoena commands BPI to produce certain requested documents at the Holiday Inn Express in Vermillion, South Dakota on December 29, 2010, (document subpoena). The other subpoena directs BPI to attend a deposition on the same date at the same location (deposition subpoena). See Docket 1-1 and 1-2.
On December 17, 2010, Fairbank served a document subpoena on BPI seeking limited documents. BPI fully complied with the subpoena and most of the documents produced to Fairbank would have been voluntarily produced to GOPAC if GOPAC had accepted BPI's offers. On December 22, 2010, BPI advised GOPAC in a written letter that its service of the December 14 subpoenas was ineffective. In this letter, BPI indicated that it had responded to Fairbank's subpoena and produced all documents related to BPI's sale, shipment, and laboratory analysis of product sent to Fairbank during the relevant time frame.
On December 28, 2010, BPI's counsel had a telephone conference with GOPAC's attorney. GOPAC's attorney acknowledged that he had not reviewed BPI's production in response to Fairbank's subpoena, but he believed it was insufficient. GOPAC's counsel further indicated that court ...