In re High Fructose Corn Syrup Antitrust Litig.

• Decision Date: 27 April 1999
• Docket Number: No. MDL 1087.,MDL 1087.
• Parties: In re HIGH FRUCTOSE CORN SYRUP ANTITRUST LITIGATION. This Document Relates To All Actions.
• Court: U.S. District Court — Central District of Illinois

46 F.Supp.2d 819

In re HIGH FRUCTOSE CORN SYRUP ANTITRUST LITIGATION.

This Document Relates To All Actions.

No. MDL 1087.

United States District Court, C.D. Illinois.

April 27, 1999.

H. Laddie Montague, Jr., Charles P. Goodwin, Berger & Montague, P.C., Philadelphia, PA, Robert N. Kaplan, Gregory K. Arenson, Kaplan, Kilsheimer & Fox LLP, New York City, Michael J. Freed, Edit F. Canter, Barat S. McClain, Much Shelist Freed Denenberg Ament & Rubenstein, P.C., Chicago, Illinois, for the plaintiff Class.

William F. Martson, Jr., Brian J. Posewitz, David S. Aman, Tonkon Torp LLP, Portland, Oregon, for plaintiff Gray & Company.

Aubrey M. Daniel, III, Steven R. Kuney, Paul Mogin, Williams & Connolly, Washington, D.C., for defendant Archer Daniels Midland Company.

Mark W. Ryan, Robert E. Bloch, Mayer Brown & Platt, Washington, D.C., for defendant Cargill, Incorporated.

Terrence M. Grimm, Joseph Spiegler, Winston & Strawn, Chicago, Illinois, for defendant A.E. Stanley Manufacturing Company.

Donald R. Harris, Edward F. Malone, Jenner & Block, Chicago, Illinois, for defendant American Maize Products Company.

John R. Horan, Oleg Rivkin, Fox, Horan & Camerini, LLP, New York City, for defendants Hubinger Company and Roquette America, Inc.

Terry M. Henry, United States Department of Justice, Civil Division, Washington, D.C., for United States Department of Justice.

Jeffrey Cole, Andrew Staes, Cole & Staes, Ltd., Chicago, Illinois, for James R. Randall.

AMENDED ORDER

MIHM, District Judge.

This matter is before the Court on Defendant Archer Daniels Midland Company's ("ADM") Motion to Quash or, in the Alternative, to Modify Plaintiffs' Subpoena and James R. Randall's ("Randall") Motion to Intervene and to Quash Class Plaintiffs' Subpoena Duces Tecum. For the reasons stated herein, ADM's Motion to Quash is GRANTED IN PART and DENIED IN PART, and Randall's Motion to Intervene and to Quash is GRANTED IN PART and DENIED IN PART.

Factual Background

For a period of approximately two and one half years, Mark Whitacre ("Whitacre"), former corporate vice president and president of ADM's BioProducts division, recorded or consented to the recording of hundreds of hours of his conversations with other ADM personnel and third parties. On October 28, 1996, Plaintiffs served a subpoena duces tecum on the custodian of records for the United States Department of Justice ("the DOJ") seeking production of the tapes made by or with the consent of Whitacre. After unsuccessful negotiations with the DOJ, Plaintiffs moved to compel compliance with the subpoena. On February 26, 1997, this Court held a hearing on the Motion to Compel and ruled that those tapes pertaining to lysine only and those tapes which had been disclosed to the law firm of Simpson Thatcher & Bartlett, counsel to a committee of ADM's board should be disclosed to Plaintiffs.

On April 10, 1997, the Court granted the DOJ's request for certification of interlocutory appeal under 28 U.S.C. § 1292(b). On October 30, 1997, the Seventh Circuit reversed this Court's ruling with instructions to quash Plaintiffs subpoena for invading the law enforcement investigatory privilege. See Dellwood Farms, Inc. v. Cargill, Inc., 128 F.3d 1122, 1126, 1128 (7th Cir.1997).

On November 24, 1998, Plaintiffs served a subpoena duces tecum on the Department of Justice seeking, inter alia, all recordings made by or with the consent of Whitacre during the FBI's investigation. On January 22, 1999, the DOJ agreed to produce the approximately 200 tapes that remain from the DOJ's criminal antitrust investigation. Those tapes introduced in the criminal trial of United States v. Andreas, 96 CR 762 (N.D.Ill), which are not included in the 200 figure, are already part of the public record and have been delivered to Plaintiffs and Defendants. On February 12, 1999, ADM moved to quash, or in the alternative, to modify Plaintiffs' subpoena seeking the disclosure of the remaining tapes. In its Motion to Quash, ADM argues that the subpoena must be quashed because Whitacre's taping violated Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 et seq., in that the tapes were not made under color of law pursuant and/or were made with a criminal or tortious purpose. See 18 U.S.C. §§ 2511(2)(c) and (2)(d). ADM further argues that even if the tapes were lawfully made either pursuant to § 2511(2)(c) or (2)(d), Title III does not permit the disclosure of the tapes in an action in which the Government is not a party. See 18 U.S.C. § 2517(3). In the alternative, ADM argues that if this Court holds that the tapes may be discovered by Plaintiffs that it appoint a special master to recommend to the Court which portions, if any, of the tapes should be redacted due to a lack of relevancy.

On March 2, 1999, Randall, who served as president of ADM until 1997, moved to intervene and to quash Plaintiffs' subpoena. In his Motion to Intervene and to Quash and accompanying Memorandum in Support, Randall asserts that he is an "aggrieved person" under 18 U.S.C. § 2510(11) because he believes that approximately 20 of his conversations were unlawfully intercepted by Whitacre. Therefore, according to Randall, he should be allowed to intervene pursuant to 18 U.S.C. § 2518(10)(a). In support of his Motion to Quash, Randall asserts the same or similar arguments that are asserted by ADM: the tapes were unlawfully made and Title III does not authorize disclosure to private civil litigants in a case in which the Government is not a party.

The Court held oral arguments on March 22, 1999. This Order follows.

Discussion

I. Standing

Section 2518(10) of Title III provides:

Any aggrieved person in any trial, hearing, or proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States, a State, or a political subdivision thereof, may move to suppress the contents of any wire or oral communication intercepted pursuant to this chapter, or evidence derived therefrom, on the grounds that—

(i) the communication was unlawfully intercepted;

(ii) the order of authorization or approval under which it was intercepted is insufficient on its face; or

(iii) the interception was not made in conformity with the order of authorization or approval.

Such motion shall be made before the trial, hearing, or proceeding unless there was no opportunity to make such motion or the person was not aware of the grounds of the motion. If the motion is granted, the contents of the intercepted wire or oral communication, or evidence derived therefrom, shall be treated as having been obtained in violation of this chapter. The judge, upon the filing of such motion by the aggrieved person, may in his discretion make available to the aggrieved person or his counsel for inspection such portions of the intercepted communication or evidence derived therefrom as the judge determines to be in the interest of justice.

18 U.S.C. § 2518(10)(a). Section 2510(11) of Title III defines "aggrieved person" as "a person who was party to any intercepted wire, oral, or electronic communication or a person against whom the interception was directed." 18 U.S.C. § 2510(11). This provision has been interpreted as conferring standing upon those persons who are (1) "person[s]" under 18 U.S.C. § 2510(6) and (2) either were parties to the intercepted communication or parties on whose premises the intercepted communication took place. See Alderman v. United States, 394 U.S. 165, 176 & n. 9, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969); United States v. Civella, 648 F.2d 1167, 1171 & n. 11 (8th Cir.), cert. denied, 454 U.S. 867, 102 S.Ct. 330, 70 L.Ed.2d 168 (1981).

Plaintiffs do not argue that ADM does not have standing to challenge the disclosure of the tapes. They do, however, argue that Randall does not have standing to intervene. In support of this argument, Plaintiffs cite the case of United States v. Dorfman, 690 F.2d 1217 (7th Cir.1982) ("Dorfman I"). In Dorfman I, five defendants in the underlying criminal case filed a motion to suppress material obtained by a court-authorized electronic surveillance. The district court denied the motion to suppress. In addition to the defendants' challenge to the wiretap, there were two other related challenges. The first related challenge was brought by five persons whose conversations were intercepted but who were not charged in the indictment. Following the entry of the order denying the defendants' motion to suppress, these five persons filed a motion to suppress the intercepted conversations in which they participated and to obtain access to the transcripts of those intercepted conversations. The district court held that Title III does not grant a suppression remedy broader than that provided by the Fourth Amendment and, therefore, as non-parties, the five people did not have standing under Title III to challenge the wiretap conversations in which they unknowingly participated. These five people appealed the district court's order. See id. at 1219-21.

The second related challenge was filed by a gentleman by the name of William Webbe ("Webbe"). Webbe was named in the indictment as an unindicted co-conspirator. Six days after the district court entered its order denying the nonparties' motion to suppress, Webbe filed his own motion to suppress the conversations in which he was a party. After allowing Webbe access to the recordings at issue, the district court denied Webbe's motion to suppress because: (1) Webbe was fully aware of the earlier hearings involving the defendants' motion to suppress but chose not to participate, thereby raising a "classic case for the application of the common law doctrine of laches"; (2) Webbe had already challenged the lawfulness of the surveillance when he was called to testify before the grand jury; (3) Webbe was not a named interceptee on the authorization order and, therefore, lacked standing to challenge the facial validity of the...