Wade Clark Mulcahy LLP

<p style="text-align: justify;">In <em><a href="https://www.wcmlaw.com/wp-content/uploads/2020/08/Winn-Dixie-Stores-Inc.-et-al.-v.-Eastern-Mushroom-Marketing-Cooperative-et-al..pdf">Winn-Dixie Stores, Inc., et al. v. Eastern Mushroom Marketing Cooperative, et al.,</a></em> the United States District Court for the Eastern District of Pennsylvania ruled that the moving party has the burden of proof on a motion to compel.</p>
<p style="text-align: justify;">In <em>Winn-Dixie</em>, the plaintiff supermarket claimed that the Eastern Mushroom Cooperative (“EMC”) colluded to raise the price of fresh agarics mushrooms in violation of antitrust law. More specifically, Winn-Dixie claimed that EMC’s alleged collusion caused Winn-Dixie to pay inflated prices for mushrooms.</p>
<p style="text-align: justify;">Winn-Dixie initially served EMC with requests for EMC to produce “all documents concerning your sale of Mushrooms to plaintiffs.” The court later clarified the requests to include all “price lists, negotiations, communications and contracts relating to the sale or potential sale of mushrooms to the Winn-Dixie plaintiffs.” Counsel for EMC subsequently indicated that EMC had searched its files and had no responsive documents. At the court’s request, EMC then described its search process, which included a review of paper files, emails, and electronic documents. Still unsatisfied, Winn-Dixie filed a motion to compel further documents from EMC.</p>
<p style="text-align: justify;">In its motion to compel, Winn-Dixie argued that (1) EMC failed to provide information on a large range of topics; (2) “it simply cannot be” that EMC does not have responsive documents; and (3) EMC’s search for documents was inadequate. The court denied the motion to compel because it reasoned that the burden is not on the producing party when considering a motion to compel. A “lack of documents” does not prove that the documents exists. Rather, it is the moving party’s burden to prove that the alleged documents exist. A claim that “it simply cannot be” that documents do not exist will not lead to a successful motion to compel.</p>
<p style="text-align: justify;">The Eastern District’s decision clarifies the standard on a motion to compel in Federal Court. Regardless of how much a party insists that documents exist, it will be unsuccessful on a motion to compel if it cannot definitively prove the existence of the documents.</p>
Thanks to John Lang for his contribution to this post. Please contact <a href="mailto:Haquino@wcmlaw.com">Heather Aquino</a> with any questions.