IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

BARRY K. WINTERS dba BKW FARMS, 

et al., 

Plaintiffs, 

vs. 

OCEAN SPRAY CRANBERRIES, INC. 

and OCEAN SPRAY BRANDS, LLC, 

Defendants. 

David A. Jacobs 

Luvaas Cobb 

777 High St., Suite 300 

Eugene, OR 97401 

Attorney for Bussmann 

Cranberries LLC 

Norman Jackman 

Jackman & Roth LLP 

1600 Massachusetts Ave., Suite 502 

Cambridge, MA 02138 

Arthur R. Miller 

Arthur R. Miller, Esq. 

University Professor, NYU School of Law 

40 Washington Square South, Room 430F 

New York, NY 10012 

James A. Olsen, Pro Hae Vice 

Lawton & Cates, S.C. 

345 W. Washington Ave., Suite 201 

P.O. Box 2965 

Madison, WI 53701-2965 

Page 1 - OPINION AND ORDER 

Case No. 6:15-mc-492-AA 

OPINION AND ORDER 

Case 6:15-mc-00492-AA Document 13 Filed 12/02/15 Page 1 of 12
Manuel C. Hernandez, Pro Hae Vice 

Hernandez & Associates, LLC 

P.O. Box 979 

Bandon, OR 97411 

Frederick J. Carleton, Pro Hae Vice 

Shala McKenzie Kudlac, Pro Hae Vice 

Carleton Law Offices 

P.O. Box 38 

Bandon, OR 97411 

Attorneys for plaintiffs 

Jens Schmidt 

James E. Mountain, Jr. 

Harrang Long Gary Rudnick P.C. 

360 East 10th Ave., Suite 300 

Eugene, OR 97401 

Alfred C. Pfeiffer, Jr. 

Latham & Watkins LLP 

505 Montgomery Street, Suite 2000 

San Francisco, CA 94111-6538 

Lawrence E. Buterman 

Margaret M. Zwisler 

Latham & Watkins LLP 

555 Eleventh St., N.W., Suite 1000 

Washington, DC 20004-1304 

Attorneys for defendants 

AIKEN, Chief Judge: 

Defendants Ocean Spray Cranberries, Inc. and Ocean Spray 

Brands, LLC ("Ocean Spray") move pursuant to Fed. R. Civ. P. 26, 

34, and 45 for an order compelling nonparty Bussmann Cranberries 

LLC ("Bussmann") to produce documents and data responsive to Ocean 

Spray's July 7, 2015 subpoena. For the reasons set forth below, 

Ocean Spray's motion to compel is GRANTED on the condition that a 

protective order with terms agreeable to Bussmann is signed and 

filed prior to production. 

BACKGROUND 

The plaintiffs in the underlying action are sixteen individuals 

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Case 6:15-mc-00492-AA Document 13 Filed 12/02/15 Page 2 of 12
and corporate entities that own and operate cranberry farms. The 

plaintiffs are either independent growers who sell raw cranberries 

to non-Ocean Spray buyers, or growers in Ocean Spray's agricultural 

cooperative called the "B Pool" that contract directly with Ocean 

Spray. 

On March 1, 2013, plaintiffs filed their third amended class 

action complaint in the District of Massachusetts alleging Ocean 

Spray violated antitrust and agricultural laws, including the 

Sherman Act and the Capper-Volstead Act, as well as violating the 

Final Judgment in Case No. 55-418-3. Plaintiffs allege Ocean Spray 

illegally depressed the price of fresh, frozen, and processed 

cranberries through its operation of the Cranberry Auction and 

influence on the price of cranberry concentrate. As a result of 

Ocean Spray's alleged illegal practice, plaintiffs maintain that 

Ocean Spray's "B Pool" growers received prices for their raw 

cranberries that were below market value and/or below the cost of 

production, and Ocean Spray's pricing scheme also caused independent 

handlers to pay independent cranberry growers below market prices. 

To better understand the claims in the underlying lawsuit, 

plaintiffs explained that Ocean Spray divided its cranberry growing 

cooperative into two classes of cranberry growers in 2006, forming 

the "A Pool" and the "B Pool." The price paid to A Pool growers for 

their cranberries is based on the sales and profitability of Ocean 

Spray's branded and value-added products; the price paid to B Pool 

growers for their raw cranberries is based on the commodity price 

of processed cranberries. Plaintiffs allege that this model creates 

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Case 6:15-mc-00492-AA Document 13 Filed 12/02/15 Page 3 of 12
a conflicting incentive structure: the lower the price paid to B 

Pool growers, the higher the profit margin for A Pool growers. Thus, 

plaintiffs allege Ocean Spray is not acting for the mutual benefit 

of its cooperative members because it is driving the price of 

cranberries artificially low so that A Pool growers can enjoy 

increased profit margins at the expense of B Pool growers. 1 

The motion to compel comes before this Court due to plaintiffs' 

additional allegation that independent growers who are not 

associated with Ocean Spray are also harmed because the prices they 

receive from "independent handlers" for their raw cranberries depend 

on the price of cranberry concentrate set artificially low by Ocean 

Spray at the Cranberry Auction. Plaintiffs allege that smaller 

independent handlers 2 , like nonparty Bussmann, are unable to sustain 

their operation without either reducing the amount of cranberries 

they purchase or lowering the price offered to independent growers. 

As a result of the artificially low price of cranberries, plaintiffs 

allege that independent growers are essentially forced to join Ocean 

Spray's B Pool or exit the cranberry market. 

To prepare its defense, Ocean Spray seeks discovery to support 

1

Prior to 2006, all growers in Ocean Spray's cooperative 

were paid based on the compensation structure now reserved only 

for Pool A growers. Plaintiffs allege there is no difference in 

the quality of fruit between A Pool and B Pool growers and Ocean 

Spray's Board of Directors, comprised solely of A Pool growers, 

restrict who may join the A Pool. 

2

0cean Spray is the largest "handler" in the business. Ocean 

Spray explains that it does not purchase raw cranberries from 

independent growers. Rather, "independent handlers" contract with 

independent growers to purchase their raw cranberries and process 

them into a variety of cranberry-based products. Ocean Spray then 

contracts with the independent handlers. 

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Case 6:15-mc-00492-AA Document 13 Filed 12/02/15 Page 4 of 12
its argument that Ocean Spray's pricing at the Cranberry Auction did 

not cause independent growers injury because independent handlers 

could and did remain profitable without lowering the prices they 

offered to independent growers. Thus, Ocean Spray maintains that it 

must obtain information concerning the exact prices independent 

handlers paid independent growers and what factors contributed to 

setting those prices. Ocean Spray served subpoenas on more than a 

dozen independent handlers throughout the country seeking targeted 

information about the handlers' cranberry purchase contracts, 

payments to growers, sales of cranberry products, and other business 

and financial information. 

Ocean Spray maintains that Bussmann is an independent handler 

of cranberries and is the only independent handler subpoena 

recipient to categorically refuse to produce any documents without 

a court order. On September 28, 2015, Ocean Spray filed a motion to 

compel Bussman to comply with its subpoena requests 1-11. 

STANDARD OF REVIEW 

Federal Rule of Civil Procedure 26 authorizes parties to 

"obtain discovery regarding any nonprivileged matter that is 

relevant to any party's claim or defense." Fed. R. Civ. P 26(b) (1). 

Rule 45 authorizes a party to a lawsuit to issue a subpoena 

commanding a nonparty to produce documents in its possession, 

custody, or control that are discoverable under Rule 26(b). Fed. R. 

Civ. P. 45(a) (1) (A) (iii); Boston Scientific Corp. v. Lee, No. 5:14-

MC-80188-BLF-PSG, 2014 WL 3851157, at *3 (N.D. Cal. Aug. 4, 2014). 

A court determines the propriety of a subpoena by balancing 

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"the relevance of the discovery sought, the requesting party's need, 

and the potential hardship to the party subject to the subpoena." 

Fed. R. Civ. Pro. 45(d); Boston Scientific Corp., 2014 WL 3851157, 

at *4. However, "[o]nce the moving party establishes that the 

information requested is within the scope of permissible discovery, 

the burden shifts to the party opposing discovery. An opposing party 

can meet its burden by demonstrating that the information is being 

sought to delay bringing the case to trial, to embarrass or harass, 

is irrelevant or privileged, or that the person seeking discovery 

fails to show need for the information." Id. at *4 (internal 

quotations omitted). 

Further, a court may "limit discovery if the discovery sought 

is obtainable from some other source that is more convenient, less 

burdensome, or less expensive or if the burden or expense of the 

proposed discovery outweighs its likely benefit." Id. (internal 

quotations omitted). A court is permitted to quash or modify a 

subpoena that requires disclosure of a trade secret or other 

confidential research, development, or commercial information, but 

must quash or modify if it subjects a person to undue burden. Fed. 

R. Civ. P. 45 (d) (3) (B) (i); Fed. R. Civ. P. 45 (d) (3) (A) (iv); Mount 

Hope Church v. Bash Back!, 705 F.3d 418, 429 (9th Cir. 2012); 

Boston Scientific CorP., 2014 WL 3851157, at *4. 

DISCUSSION 

Ocean Spray moves to compel documents from Bussmann ranging 

from 2004 to the present, including (1) documents and data 

reflecting Bussmann' s purchases from growers, including its pricing, 

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Case 6:15-mc-00492-AA Document 13 Filed 12/02/15 Page 6 of 12
transaction terms, and any contracts with growers (requests 1-4); 

(2) documents and data reflecting Bussmann's sales of cranberries 

or cranberry products (requests 2-3); and (3) documents showing 

Bussmann's financial and organizational structure, and other 

business information (requests 5-11). 

Ocean Spray alleges that at certain points from 2004 to the 

present, Bussmann purchased fresh cranberries from named plaintiffs 

and relatives Christian Bussmann and Deanna Bussmann, as well as 

from named plaintiffs John L. Meyer Cranberries, Inc., Winter Sogn 

Farm, Scott Vierck, and Michael Webb. Defs.' Mot. at 5. Ocean Spray 

maintains that "[d)etermining whether these plaintiffs failed to 

receive adequate payment for their sales to Bussmann requires a 

careful analysis of the prices, quantities, and other key negotiated 

terms of each transaction, as well as the factors considered by 

handlers, including Bussmann, in agreeing to pay those prices." Id. 

at 7. Ocean Spray further alleges that documents related to 

Bussmann's financial condition and the costs incurred from 

processing and selling cranberry products are unique to Bussmann and 

not readily available from plaintiffs. Id. at 7-8. Ocean Spray 

maintains that such discovery is necessary to test plaintiffs' 

assertion that smaller independent handlers were unable to sustain 

operations at concentrate prices unless they reduced their demand 

for cranberries or paid lower prices to growers. Id. at 8. Ocean 

Spray represents to the Court that Bussmann has been uncooperative 

during conferral and that confidentiality concerns are unjustified 

because a protective order is in place for discovery in the 

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underlying litigation. 

Bussmann argues the information sought by Ocean Spray is 

protected confidential commercial information, is not relevant to 

Ocean Spray's defense, and can be obtained from other independent 

handlers and actual plaintiffs. Bussmann Resp. at 4, 5, 8. In 

addition to these objections, Bussmann objects to Ocean Spray's 

subpoena requests on the grounds that the time and expense to 

produce responsive documents would be unduly burdensome, the 

requests are overbroad, and Bussmann simply does not possess 

documents responsive to some of the requests. Bussmann Resp. at 6, 

9; Defs.' Mot. Ex. I. Bussmann strongly emphasizes that he is a 

nonparty desiring no involvement in the underlying litigation, and 

other than one small cranberry purchase from his cousin who is a 

plaintiff, he does not do business with plaintiffs. Bussmann Resp. 

at 2. Additionally, Bussmann's attorney represents the conferral 

regarding the discovery at issue was professional and at that time, 

Ocean Spray's counsel implied that it might not pursue records from 

Bussmann. Id. 

The Court has carefully weighed the relevancy of the discovery 

sought, Bussmann's arguments for protection of the documents 

requested, and Ocean Spray's substantial need for the information. 

Given the very broad scope of discovery allowed under Federal Rule 

of Civil Procedure 26 and the fact that nonparty status does not 

automatically serve as a shield from producing relevant evidence, 

the Court finds Ocean Spray's arguments persuasive. 

The information sought in Ocean Spray's subpoena must be 

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Case 6:15-mc-00492-AA Document 13 Filed 12/02/15 Page 8 of 12
relevant to the claims and defenses in the underlying case. See 

Gonzales v. Google, Inc., 234 F.R.D. 674, 679-80 (N.D. Cal. 2006). 

In other words, "the information sought must be reasonably 

calculated to lead to admissible evidence. This requirement is 

liberally construed to permit the discovery of information which 

ultimately may not be admissible at trial." Id. at 680 (internal 

citations and quotations omitted). Moreover, this Court does not 

have the benefit of involvement with the underlying litigation which 

is currently pending in the U.S. District Court for the District of 

Massachusetts. Significantly, " [al district court whose only 

connection with a case is supervision of discovery ancillary to an 

action in another district should be especially hesitant to pass 

judgment on what constitutes relevant evidence thereunder. Where 

relevance is in doubt . . the court should be permissive." Id. at 

681. 

Ocean Spray has met its burden of showing that the information 

sought from Bussmann is relevant to its defense. First, the Court is 

persuaded that Bussmann falls into the category of "independent 

handler" despite his argument that he is only a "middle man" and not 

a true independent handler. 3 Second, Ocean Spray has attached to its 

motion, as Exhibits D-H, evidence that Bussmann has at times 

3

0cean Spray cites a website where Bussmann is registered 

with the U.S. Department of Agriculture's Cranberry Marketing 

Committee as a supplier that sells fresh and frozen cranberries 

via direct and wholesale channels. Ocean Spray's subpoena to 

independent handlers defines "Handler" in accordance with the 

Federal Cranberry Marketing Order regulations as someone who 

"convert[s] cranberries into canned, frozen or dehydrated 

cranberries or other cranberry products . "Defs.' Mot. Ex. 

A at 6. 

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Case 6:15-mc-00492-AA Document 13 Filed 12/02/15 Page 9 of 12
purchased cranberries from named plaintiffs in the underlying 

lawsuit. Thus, Bussmann possesses information relevant to Ocean 

Spray's defense, particularly information relating to its argument 

that independent handlers were not forced to offer lower prices to 

independent growers because of Ocean Spray's Cranberry Auction 

prices. Finally and significantly, the Court is not convinced that 

Bussmann is entitled to treatment different from the eleven other 

independent handlers who have already complied with Ocean Spray's 

subpoena requests. Defs.' Mot. at 9, 11; Bussmann Resp. at 8. 

Once the moving party has shown that the discovery sought is 

relevant in accordance with Rule 26(b) (1), the burden shifts to the 

party opposing the motion to show that the discovery requested is 

unreasonably duplicative or can be obtained from a more convenient 

or less burdensome source. Callwave Commc'ns, LLC v. Wavemarket, 

Inc., No. Cl4-80112JSW(LB), 2014 WL 2918218, at *2 (N.D. Cal. June 

26, 2014) (citing Fed. R. Civ. P. 26(b) (2) (C)). However, a nonparty 

must be protected if the subpoena requests privileged or protected 

information or subjects the nonparty to an undue burden, and may be 

protected if disclosure involves commercial information. Id. (citing 

Fed. R. Civ. P. 45 (d) (3) (A)- (B)). 

Bussmann argues the information sought specifically from his 

company is duplicative of information already produced by eleven 

recipients of the identical subpoena. Bussmann Resp. at 8. The Court 

finds the information sought from Bussmann not unreasonably 

duplicative given that the prices offered to independent growers by 

independent handlers may vary from company to company. While true 

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"[a] court may prohibit a party from obtaining discovery from a 

non-party if that same information is available from another party 

to the litigation," the information sought from Bussmann cannot be 

obtained from a more convenient or less burdensome source because it 

is specific to his company alone. Amini Innovation Coro. v. McFerran 

Home Furnishings, Inc., 300 F.R.D. 406, 410 (C.D. Cal. 2014) (quoting 

Rocky Mountain Med. Mgmt. v. LHP Hosp. Grp., Inc. et al., 2013 WL 

6446704, at *4 (D. Idaho Dec. 9, 2013)). Further, Ocean Spray 

represents to this Court the information already gathered from 

plaintiffs who transacted with Bussmann omits key information 

concerning price, quantity, and other terms. Defs.' Mot. at 7 n.3. 

Thus, a party to the litigation cannot provide the specific 

information sought. 

The Court also finds the burden of production to Bussmann does 

not outweigh the benefit of production. Bussmann declared that 

producing the responsive discovery will take his bookkeeper 

approximately two days to make copies at a cost of approximately 

$500. Bussmann Deel. 'II 8. The Court is required to protect a 

nonparty from significant expense resulting from compliance with a 

subpoena. Fed. R. Civ. P. 45(d) (2) (B) (ii). Courts have defined what 

constitutes a "significant expense." Callwave Commc'ns, LLC, 2014 WL 

2918218, at *3 ($20,000 was "clearly" significant versus $9,000 "may 

be" significant) . Although $500 may not ordinarily fall into the 

realm of "significant expense," what is considered significant to a 

small family-run business may be insignificant to a global financial 

institution. U.S. v. McGraw-Hill Cos., Inc., 302 F.R.D. 532, 536 

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Case 6:15-mc-00492-AA Document 13 Filed 12/02/15 Page 11 of 12
(C.D. Cal. 2014). Moreover, the determination of what is significant 

falls to the discretion of the district court. Callwave Commc'ns, 

LLC, 2014 WL 2918218, at *3. Given the considerations in this case, 

the Court shifts the expense of obtaining discovery to Ocean Spray. 

Finally, the Court is cognizant of the confidential nature of 

the business information sought in Ocean Spray's subpoena and 

appreciates Bussmann's predominant concern that his private business 

information could be made available to his customers and 

competitors. The Stipulated Protective Order on file in the 

underlying litigation, submitted as Exhibit A to Ocean Spray's 

motion to compel, is a two-tiered protective order allowing for the 

designation of documents as "Highly Confidential Material" which 

prohibits disclosure of such documents to the parties to the 

litigation. Any discovery produced by Bussmann pursuant to Ocean 

Spray's subpoena must be produced subject to the confidential 

protections provided by the Stipulated Protective Order. 

CONCLUSION 

For the reasons set forth above, Ocean Spray's motion to compel 

(doc. 1) Bussmann's response to its July 7, 2015 subpoena is GRANTED 

subject to the protective order on file in the underlying case. 

IT IS SO ORDERED. 

Dated this ).., day of ~ ~ 2015. 

Ann Aiken 

United States District Judge 

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