IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF TEXAS 

SHERMAN DIVISION 

ALL CLASS AND DIRECT ACTION 

PLAINTIFFS, 

Plaintiffs, 

BRADLEY SHAFER, 

Defendant. 

Case No. 23-1133 

PLAINTIFFS’ MOTION TO COMPEL 

AND ENFORCE COMPLIANCE WITH 

SUBPOENA 

Pursuant to Fed. R. Civ. P. 45(d)(2)(B)(i), Class and Direct Action Plaintiffs to the multidistrict litigation pending in the United States District Court for the District of Minnesota, see In 

re Cattle and Beef Antitrust Litigation, No. 22-md-3031 (D. Minn.), hereby move the Court to 

compel and enforce compliance with the subpoena served on Defendant Brad Shafer. Plaintiffs do 

not request a hearing on this Motion. 

I. INTRODUCTION 

This Motion to Compel concerns a multi-district litigation (“MDL”) pending in the United 

States District Court for the District of Minnesota involving allegations of an antitrust conspiracy 

in the cattle and beef packing industries. See In re Cattle and Beef Antitrust Litigation, No. 22-

md-3031 (D. Minn.). The Class and Direct-Action Plaintiffs to that action (collectively, 

“Plaintiffs”) successfully served a subpoena to produce mobile device data on Brad Shafer, a 

former employee of Defendant Tyson and a document custodian in that action.1

 Mr. Shafer has 

yet to comply with multiple requests from Plaintiffs and counsel for Tyson, and he has not 

1

 Tyson Foods, Inc. or Tyson Fresh Meats, Inc. is collectively referred to herein as “Tyson.” 

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produced the requested data. Accordingly, Mr. Shafer has waived all objections to the subpoena. 

Plaintiffs respectfully move the Court for an order compelling compliance therewith. 

I. FACTUAL BACKGROUND 

A. PLAINTIFFS SUCCESSFULLY SERVED A SUBPOENA SEEKING 

MOBILE DEVICE DATA ON MR. SHAFER. 

Mr. Shafer is designated as a document custodian in the MDL because he possesses 

information relevant to the parties’ claims and defenses. Custodial discovery in the MDL has 

included mobile device data—specifically, text messages, social media data, and contact 

information. For document custodians whose mobile device data is in the possession, custody, or 

control of a Defendant, Plaintiffs have obtained that discovery from the Defendant. For other 

document custodians, however, Plaintiffs have obtained the discovery directly from the individual 

custodian.2

 

On November 18 and December 14, 2022, Tyson disclosed that Mr. Shafer used his cell 

phone for business purposes, but that Tyson did not have possession, custody or control of that cell 

phone or associated mobile device data. See Freese Decl. ¶ 2. On May 31, 2023, Plaintiffs served 

on Mr. Shafer a subpoena to produce documents and information limited to mobile device data.3

 

See Ex. 1-1 (subpoena); see also Ex. 1-2 (proof of service). The subpoena consists of five requests 

2

 To that end, the MDL parties developed and agreed to search terms that will be used exclusively 

to identify responsive text messages, and also agreed that inter-Defendant text messages would be 

reviewed linearly. See Case No. 20-cv-01319-JRT-HB, ECF No. 572 (“Search Methodology 

Order”). Those same search terms and methods would be utilized here. 

3

 Plaintiffs served Mr. Shafer at his address: 1424 Harrell Rd, Howe, Grayson County, TX 75459. 

Ex. 1-2. 

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substantially similar to requests for custodians whose mobile device data is in Tyson’s possession, 

custody, or control:4

REQUEST 1: All Documents concerning your Communications, including Text 

Messages, that you sent to or received from a current or former Representative of a 

Defendant other than Tyson during the Relevant Time Period, and which concerns 

(1) fed cattle producers, fed cattle supply, fed cattle purchases, and/or fed cattle 

prices (general or specific) in the United States; (2) fed cattle slaughter levels in the 

United States, including operation of Defendants’ plants and short-term closures; 

(3) beef supply, beef sales, beef customers, and/or beef prices (general or specific) 

in the United States; (4) live cattle futures or options on live cattle futures 

transactions involving trades on the CME, for specific trades and market dynamics 

generally; (5) participation in a Trade Association meeting or event, or other 

Industry Meeting or Investor Conference; or (6) proposed or actual meetings, calls, 

or other communication of unspecified or unclear purpose. 

REQUEST 2: All Documents concerning your Communications, including Text 

Messages, regarding that you sent to or received from a current or former 

Representative of Tyson during the Relevant Time Period, and that relate to (1) fed 

cattle producers, fed cattle supply, fed cattle purchases, and/or fed cattle prices 

(general or specific) in the United States; (2) fed cattle slaughter levels in the United 

States, including operation of Defendants’ plants and short-term closures; (3) beef 

supply, beef sales, beef customers, and/or beef prices (general or specific) in the 

United States; (4) live cattle futures or options on live cattle futures transactions 

involving trades on the CME, for specific trades and market dynamics generally; 

or (5) participation in a Trade Association meeting or event, or other Industry 

Meeting or Investor Conference. 

REQUEST 3: All Documents concerning your Communications, including Text 

Messages, sent to or received from any Third-Party Conduit, potential (or actual) 

Beef customers, or Cattle suppliers during the Relevant Time Period, and that relate 

to (1) fed cattle producers, fed cattle supply, fed cattle purchases, and/or fed cattle 

prices (general or specific) in the United States; (2) fed cattle slaughter levels in the 

United States, including operation of Defendants’ plants and short-term closures; 

(3) beef supply, beef sales, beef customers, and/or beef prices (general or specific) 

in the United States; (4) live cattle futures or options on live cattle futures 

transactions involving trades on the CME, for specific trades and market dynamics 

generally; or (5) participation in a Trade Association meeting or event, or other 

Industry Meeting or Investor Conference. 

REQUEST 4: All Social Media Data: (1)(a) sent to or received from a current or 

former Representative of a Defendant, a Third-Party Conduit, or potential (or 

4

 Plaintiffs’ Requests were modified to match their compromises in their opposition briefing 

regarding the Cargill custodians’ motions to compel, and therefore, are nearly identical to those 

ordered by the District of Minnesota in July. See infra. 

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actual) Beef customers or Cattle suppliers during the Relevant Time Period, or (b) 

posted to a public or private forum; and (2) concerning the markets for Beef, Cattle, 

and/or Cattle Futures. 

REQUEST 5: Documents reflecting contact information for any person who is or 

was an owner, Employee, consultant, officer, board member, representative, or 

agent of: (i) a Defendant; (ii) a cattle/beef industry or financial analyst; or (iii) a 

Trade Association. 

Ex. 1-1 at 12–13. The deadline for production was June 30, 2023. Id. at 3. However, Mr. Shafer 

did not formally respond—either through written objections, a motion to quash, or compliance—

to Plaintiffs’ subpoena. Although Mr. Shafer did initially informally discuss the subpoena with 

Plaintiffs’ counsel, Zach Freese, he eventually stopped responding to Plaintiffs’ communications. 

See infra. 

B. THE MDL COURT SUSTAINED THE SCOPE OF NEARLY IDENTICAL 

SUBPOENAS. 

Three individuals in the same position as Mr. Shafer challenged substantially similar 

subpoenas in the MDL. See In re Rule 45 Subpoena Issued to Nancy Lucas Dated February 10, 

2023, Nos. 23-mc-00040 (JFD), 23-mc-00041 (JFD), 23-mc-00042 (JFD), 2023 WL 4561320 (D. 

Minn. July 17, 2023).5

 Nancy Lucas, Scott Howard, and Don Porter are former employees of 

Defendant Cargill who are also document custodians that used their mobile devices for business 

purposes. Id. at *1. The three former Cargill employees separately moved to quash their 

subpoenas on several grounds, including that the productions made by Cargill would suffice; the 

responsive information and communications on their personal cell phones was not relevant or 

proportional; and that producing these communications and information would be unduly 

burdensome.6 Id.

5

 A copy of this order is attached to Freese Decl. as Ex. 2. 

6

 The Cargill custodians agreed to Request No. 1 (Requests Nos. 1-2 here) prior to the briefing. 

See Freese Decl. ¶ 4. 

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Applying Federal Rules of Civil Procedure 26 and 45, Magistrate Judge Docherty ordered 

the former Cargill employees to comply with Plaintiffs’ mobile device subpoenas, narrowing just 

one of the requests. Id. at *2–4.7 In doing so, Magistrate Judge Docherty found that although the 

former Cargill employees had “a substantial privacy interest in their personal cell phones and 

communications”, and that while temporary loss of their cell phones would be “inconvenien[t] and 

[a] slight burden”, the MDL Plaintiffs had shown a compelling need for the communications and 

information therein. Id. at *2. Magistrate Judge Docherty also made specific findings as to 

subpoena requests Nos. 2–4, which, as narrowed by Plaintiffs or the District of Minnesota, are 

nearly identical to Mr. Shafer’s subpoena, finding that each request was relevant and proportional 

and not unduly burdensome. Id. at *3–4. 

Additionally, with respect to the relevant periods for the Cargill employees, Magistrate 

Judge Docherty agreed with an earlier “ruling by U.S. Magistrate Judge Hildy Bowbeer . . . that 

unstructured-data discovery predating the class period [beginning January 1, 2015] by two years 

7

 Request No. 2 (Request No. 3 here) “[a]ll Documents concerning your Communications, 

including text messages, regarding the U.S. markets for Beef, Cattle and/or Cattle Futures that, 

during the Relevant Time Period, you sent to or received from any other Person who was not at 

the time a Representative of a Defendant” was narrowed by Plaintiffs to communications sent or 

received from third-party conduits, beef customers, or cattle suppliers. In re Rule 45 Subpoena,

2023 WL 4561320, at *3. Plaintiffs also agreed to include the same subject matter limitations as 

reflected in Request No. 3 here but agreed to exclude text messages about meetings or 

communications with an unspecified or unclear purpose. Id. Request No. 3 (Request No. 4 here) 

“[a]ll Social Media Data during the Relevant Time Period concerning the markets for Beef, Cattle 

and/or Cattle Futures or reflecting Communications with a current or former Representative of a 

Defendant” was narrowed by Plaintiffs to “all Social Media Data: (1)(a) sent to or received from 

a current or former Representative of a Defendant, a third-party conduit, or potential (or actual) 

Beef customers or Cattle suppliers during the Relevant Time Period, or (b) posted to a public or 

private forum; and (2) concerning the markets for Beef, Cattle, and/or Cattle Futures.” Id. at *4. 

The Court further narrowed this request by requiring Plaintiffs to identify the relevant Beef 

customers and Cattle suppliers. Id. Finally, Request No. 4 (Request No. 5 here) was narrowed by 

Plaintiffs to “contact information for any person who is or was an owner, Employee, consultant, 

officer, board member, representative, or agent of: (i) a Defendant; (ii) a cattle/beef industry or 

financial analyst; or (iii) a Trade Association.” Id.

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is relevant and proportional.” Id. at *3. Similarly, Plaintiffs seek mobile device data from January 

1, 2013 through March 22, 2017 (the end of Mr. Shafer’s employment with Tyson). See Ex. 1-1 

at 6. 

C. MR. SHAFER’S FAILURE TO RESPOND TO PLAINTIFFS AND 

TYSON’S COUNSEL. 

On June 1, 2023, Plaintiffs’ counsel Zach Freese spoke on the phone with Mr. Shafer 

“regarding [the] subpoena for your phone records regarding your time at Tyson[,]”8

 Ex. 3, during 

which he acknowledged that he used his cell phone for beef and work-related communications 

during his employment and that he has had the same phone number since leaving Tyson. Freese 

Decl. ¶ 6. Thereafter, on August 4, 2023, Plaintiffs emailed Mr. Shafer asking him to comply with 

the subpoena by providing his cell phone data to one of three forensic companies located in the 

Dallas metropolitan area and offered to cover his expenses. See Ex. 4 at 4–5. Mr. Shafer responded 

with some questions to which Plaintiffs answered. Id. at 3–4. On September 29, 2023, having not 

received a response from Mr. Shafer, Plaintiffs followed up with Mr. Shafer concerning the 

subpoena. Id. at 2–3. Mr. Shafer responded with more questions, which Plaintiffs again answered. 

Id. at 1–2. On October 13, 2023, again having not received a response from Mr. Shafer, Plaintiffs 

followed up with Mr. Shafer. Id. at 1. Mr. Shafer never responded. See Freese Decl. ¶ 10; see also 

Ex. 4. To date, Mr. Shafer has not complied with Plaintiffs’ initial subpoena request, nor has he 

responded or otherwise communicated with Plaintiffs. Freese Decl. ¶¶ 10, 12. Out of an abundance 

of caution, Plaintiffs once again reached out to Perkins Coie to confirm they did not represent Mr. 

Shafer, which they confirmed on November 15, 2023. See Freese Decl. ¶ 11. 

8

 Freese and Mr. Shafer set up a call for July 10, 2023, see Ex. 3; however, due to Perkins Coies’ 

possible representation of Mr. Shafer communications concerning the subpoena briefly halted. On 

or around July 25, 2023, counsel from Perkins Coie confirmed that they would not represent Mr. 

Shafer. See Freese Decl. ¶ 8. 

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Accordingly, Plaintiffs move to compel Mr. Shafer’s compliance with the subpoena as 

slightly modified by the MDL Court’s July 17, 2023 Order. 

II. ARGUMENT 

A. THIS DISTRICT SHOULD COMPEL PRODUCTION SINCE MR. 

SHAFER WAIVED HIS ABILITY TO OBJECT TO OR QUASH THE 

SUBPOENA. 

Rule 45 governs nonparty subpoenas. See Andra Grp., LP v. JDA Software Grp., Inc., 312 

F.R.D. 444, 447 (N.D. Tex. 2015) (“Federal Rule of Civil Procedure 45 explicitly contemplates 

the use of subpoenas in relation to non-parties.”) (internal citation omitted). Nonparties have an 

obligation “once subject to a subpoena, to participate in transparent and collaborative discovery.” 

Id. at 450 (internal citations omitted). In response to a subpoena, nonparties may formally move 

to quash the subpoena or file written objections. See Fed. R. Civ. P. 45(d)(2)(B), (d)(3)(A). Written 

objections must be made “before the earlier of the time specified for compliance or 14 days after 

the subpoena is served.” Fed. R. Civ. P. 45(d)(2)(B); see also MetroPCS v. Thomas, 327 F.R.D. 

600, 615 (N.D. Tex. 2018) (finding that, in general, motions to quash are timely filed prior to the 

return date of the subpoena). 

If a nonparty does not timely file objections or move to quash, they waive their ability to 

challenge the subpoena. See MetroPCS, 327 F.R.D. at 607 (“Thus, in the majority of cases, a 

person—whether a traditional party (i.e., a plaintiff or defendant) or a non-party—waives 

objections if he/she/it fails either to serve timely objections on the party seeking discovery or to 

file a timely motion with the court.”) (cleaned up); Arthur J. Gallagher & Co. v. O’Neill, No. CV 

17-2825, 2017 WL 5713361, at *1 (E.D. La. Nov. 27, 2017), on reconsideration, No. CV 17-2825, 

2017 WL 6524044 (E.D. La. Dec. 21, 2017) (for a nonparty, ignoring a subpoena is the “worst 

option, almost certain to result in a contempt citation under Rule 45(g) and a finding that all 

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objections have been waived”). Rule 45 enables the serving party to move for an order to seek 

compliance with the subpoena. See Fed. R. Civ. P. 45(d)(2)(B)(i). Motions to compel should be 

filed in the district “where compliance is required.” Id. 

Here, the Eastern District of Texas is the appropriate court to compel Mr. Shafer’s 

compliance with the subpoena. Mr. Shafer is a resident of Grayson County, Texas, and Grayson 

County is where he was served; thus, the Eastern District of Texas is “where [his] compliance is 

required.” See Fed. R. Civ. P. 45(d)(2)(B)(i). Next, because Mr. Shafer did not formally object to 

the mobile device data that Plaintiffs requested within 14 days of receiving the subpoena and did 

not file a motion a quash prior to June 30, 2023, he has waived any objections. See MetroPCS, 

327 F.R.D. at 607. Indeed, Plaintiffs contacted Mr. Shafer on multiple occasions through 

telephonically and through email in an effort to avoid motion practice and to allow Mr. Shafer 

sufficient time to avail himself of his procedural rights. See Exs. 3, 4; Freese Decl. ¶ 6. His failure 

to do so despite Plaintiffs’ patience reinforces his waiver. Simply put, all that is left for the Court 

is to do is order compliance. 

B. PLAINTIFFS SEEK INFORMATION RELEVANT AND PROPORTIONAL 

TO THE MDL, AS FOUND BY THE MDL COURT ITSELF. 

Rule 26 applies to subpoenas. Louisiana Corral Mgmt., LLC v. Axis Surplus Ins. Co., 650 

F. Supp. 3d 491, 499 (E.D. La. 2023) (“Although governed in the first instance by Rule 45, nonparty subpoenas are also subject to the parameters of Rule 26.”) (footnote omitted). Liberal in 

application, Rule 26 governs the scope of discoverable information permitted by parties in 

litigation, including subpoenas. In text, Rule 26 provides: “parties may obtain discovery regarding 

any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the 

needs of the case.” Fed. R. Civ. P. 26(b)(1). “The party resisting discovery must show specifically 

how each discovery request is not relevant or otherwise objectionable.” Carr v. State Farm Mut. 

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Auto. Ins. Co., 312 F.R.D. 459, 463 (N.D. Tex. 2015) (citing McLeod, Alexander, Powel & Apffel, 

P.C. v. Quarles, 894 F.2d 1482, 1485 (5th Cir. 1990)). Discovery must also be proportional, which 

takes into consideration “the importance of the issues at stake in the action, the amount in 

controversy, the parties’ relative access to relevant information, the parties’ resources, the 

importance of the discovery in resolving the issues, and whether the burden or expense of the 

proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1); see also Hall v. RentA-Ctr., Inc., No. 4:16CV978, 2018 WL 4293141, at *3 (E.D. Tex. Aug. 31, 2018) (“The burden is 

on the party resisting discovery to establish the discovery is not proportional.”). 

Even if Mr. Shafer timely objected to the subpoena or moved to quash, the mobile device 

data Plaintiffs seek meets the standards of Rule 26. First, the documents are plainly relevant. The 

mobile device data Plaintiffs request from Mr. Shafer are text messages and social media data 

concerning the United States markets for beef, cattle, and cattle futures, as well as associated 

contact information. See Ex. 1-1 at 12–13. These communications will, among other things: (1) 

show the decisions and impact of Defendants’ decisions on cattle and beef prices; (2) reveal the 

motivations underlying otherwise innocuous operational decisions; (3) help identify third-parties 

who acted as “go-betweens” for the Defendants, passing information about one to the other. See, 

e.g., In re Pork Antitrust Litig., No. 18-cv-01776 (JRT/HB), 2022 WL 972401, at *14 (D. Minn. 

Mar. 31, 2022) (noting relevance of text messages between Defendants and other integrators about 

pork supply, demand, and pricing and acknowledging they could reveal the substance of the alleged 

conspiracy and help plaintiffs understand the tone, language, and content of their 

communications); Thomas v. City of New York, 336 F.R.D. 1, 5 (E.D.N.Y. 2020) (“Defendants are 

required to search and produce Squad 8 GroupMe chat messages.”); V5 Techs. v. Switch, Ltd., 332 

F.R.D. 356, 367 (D. Nev. 2019) (ordering production of personal emails and texts, with sworn 

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declaration detailing searches conducted); IQVIA, Inc. v. Veeva Sys., Inc., No. 17-cv-00177, 2018 

WL 4952595, at *7 (D.N.J. Oct. 12, 2018) (compelling production of text messages); see also, 

e.g., Plymouth Cnty. Retirement Sys. v. Patterson Cos., Inc., No. 18-cv-00871 (MJD/SER), 2019 

WL 3336119 at * 2–12, 19–20 (D. Minn. July 25, 2019), adopted with modification, 2019 WL 

4277302 (D. Minn. Sept. 10, 2019) (supporting inference of scienter for antitrust claim with texts 

and emails used not only to pass information up and down levels of employees, but also to check 

in with counterparts at other businesses with which they should have been competing to confirm 

compliance with boycott and pricing-fixing plan). 

Second, the requested information is also proportional to the needs of the case. Plaintiffs 

seek mobile device data from July 6, 2014 through March 22, 2017 (the length of Mr. Shafer’s 

employment with Tyson). See Ex. 1-1 at 6. Each request is related to Mr. Shafer’s employment at 

Tyson, id. at 12–13, and the subpoena’s instructions clarify that Plaintiffs seek only information in 

Mr. Shafer’s possession, custody, or control. Id. at 6; see also Ex. 4 at 1–2. Plaintiffs further 

represent, as they offered throughout their early communications, Ex. 4 in toto, that they would 

work with Mr. Shafer to complete cellphone imaging as quickly as possible, cover the costs, and 

explained that it is often completed within 24 hours or less. See Freese Decl. ¶ 13; Ex. 4. 

Third, the MDL court determined that nearly identical mobile device data sought from 

former Cargill employees is relevant and proportional to the MDL, and that the relevant time 

period is consistent with court-ordered discovery limits. See In re Rule 45 Subpoena, 2023 WL 

4561320, at *3–4. Accordingly, not only could this Court independently determine that the 

subpoenaed mobile device data is relevant to the MDL and proportional to the needs of the 

litigation, it could also rely on the conclusions reached by the very court overseeing that litigation. 

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See Sparkman v. Charles Schwab & Co., 336 F. App’x 413, 415 (5th Cir. 2009) (“One court may 

take judicial notice of another district court’s judicial actions.”). 

Accordingly, Plaintiffs request this Court compel Mr. Shafer to comply with the properly 

served subpoena. 

III. CONCLUSION 

For the foregoing reasons, Plaintiffs respectfully request that this Court enter an Order 

Granting the Motion to Compel and requiring Mr. Shafer to comply with the subpoena. 

Dated: December 21, 2023 Respectfully submitted, 

/s/ Zachary J. Freese 

David M. Cialkowski (MN# 0306526) 

Ian F. McFarland (MN# 0392900) 

Zachary J. Freese (MN# 0402252)* 

ZIMMERMAN REED LLP 

1100 IDS Center 

80 S. 8th St. 

Minneapolis, MN 55402 

Tel: (612) 341-0400 

Fax: (612) 341-0844 

david.cialkowski@zimmreed.com 

ian.mcfarland@zimmreed.com 

zachary.freese@zimmreed.com 

*Pro Hac Vice application filed 

contemporaneously 

Attorney for Plaintiffs 

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CERTIFICATE OF CONFERENCE

Pursuant to Local Rule CV-7(i), Plaintiffs certify that they have communicated with 

Bradley Shafer telephonically regarding Plaintiffs’ subpoena and have attempted to negotiate 

production, but the parties were unable to reach an agreement. 

/s/ Zachary J. Freese 

Zachary J. Freese 

CERTIFICATE OF SERVICE

I hereby certify that on this 21st day of December 2023, I have mailed a copy of this 

document by United States First Class mail to the following non-CM/ECF participants at: 

Brad Shafer 

1424 Harrell Road 

Howe, TX 75459 

/s/ Zachary J. Freese 

Zachary J. Freese 

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