Whole Foods v. FTC - Motion For Expedited Discovery

Case 1:08-cv-02121-PLF Document 13 Filed 12/19/2008 Page 1 of 23
IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA
)
WHOLE FOODS MARKET, INC., )
)
Plaintiff, )
)
v. ) Case No. 1:08-cv-02121 PLF
)
FEDERAL TRADE COMMISSION, )
)
Defendant. )
)
PLAINTIFF WHOLE FOODS MARKET, INC.’S

MOTION FOR EXPEDITED DISCOVERY
Plaintiff Whole Foods Market, Inc. (“Whole Foods”), by and through its
undersigned counsel, respectfully moves this Court, pursuant to Federal Rule of Civil Procedure
26 for expedited discovery regarding the extent and substance of the FTC Commissioners’
(i) contacts with the prosecutorial and investigative members of Defendant Federal Trade
Commission (“FTC” or “Commission”) and (ii) prejudgments and biases on the merits of Whole
Foods’ merger case, in connection with the FTC’s efforts to unwind Whole Foods’ 2007 merger
with Wild Oats Markets, Inc. In support of this Motion, Whole Foods refers the Court to the
accompanying Memorandum of Points and Authorities and attachments thereto. Whole Foods is
also filing herewith a Proposed Order.
Pursuant to Local Civil Rule 7(f), for the reasons set forth the accompanying
Memorandum of Points and Authorities, Whole Foods respectfully requests a hearing on this
motion at the earliest possible date.
-1-
Pursuant to Local Civil Rule 7(m), counsel for Whole Foods conferred with the
FTC’s counsel by telephone in a good-faith effort to determine whether the FTC opposes the
relief sought herein. The FTC’s counsel indicated that such relief is opposed.
Dated: December 19, 2008 Respectfully submitted,
/s/ Lanny J. Davis

Lanny J. Davis (D.C. Bar No. 158535)
Garret G. Rasmussen (D.C. Bar No. 239616)
Antony P. Kim (D.C. Bar No. 489553) (app. pending)
ORRICK, HERRINGTON & SUTCLIFFE LLP
1152 15th Street, N.W.
Washington, D.C. 20005
Telephone: (202) 339-8400
W. Stephen Cannon (D.C. Bar No. 303727)

Todd Anderson (D.C. Bar No. 462136)
CONSTANTINE CANNON, LLP
1627 I Street, N.W.
Telephone: (202) 204-3500
Attorneys for Plaintiff Whole Foods

Market, Inc.
-2-

)
)
Plaintiff, )
)
v. ) Case No. 1:08-cv-02121 PLF
)
)
Defendant. )
)
PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES

IN SUPPORT OF ITS MOTION FOR EXPEDITED DISCOVERY
Plaintiff Whole Foods Market, Inc. (“Whole Foods”) seeks narrow, expedited discovery
regarding the extent and substance of (i) the FTC Commissioners’ contacts with the prosecutorial
and investigative members of Defendant Federal Trade Commission (“FTC” or “Commission”)
and (ii) their prejudgments and biases against Whole Foods, in connection with the FTC’s efforts
to unwind Whole Foods’ merger with Wild Oats Markets, Inc. Whole Foods’ narrow proposed
document requests, deposition notice of Commissioner J. Thomas Rosch, and Rule 30(b)(6)
deposition notice of the Commission are attached hereto.
The requested discovery is not only reasonably calculated to lead to the discovery of
admissible evidence, Fed. R. Civ. P. 26, but will aid this Court’s resolution of Whole Foods’
pending Motion for a Preliminary Injunction (“PI Motion”) and Amended Complaint for
Declaratory and Injunctive Relief (“Amended Complaint”) — which are based on the
Commission’s violations of Whole Foods’ constitutional rights to equal protection and a fair and
impartial administrative proceeding. “[C]ourts have routinely granted expedited discovery in
cases involving challenges to constitutionality of government action.” Ellsworth Assocs. v.
1
United States, 917 F. Supp. 841, 844 (D.D.C. 1996) (granting expedited discovery in case
alleging Administrative Procedure Act and Equal Protection claims against government where
plaintiffs’ discovery requests were “germane to their claims and . . . [would] expedite the
resolution of this matter”); see also Stanley v. Univ. of S. Cal., 13 F.3d 1313, 1326 (9th Cir.
1994) (good cause for immediate depositions “may exist because of the urgent need for
discovery in connection with an application for . . . preliminary injunction”) (citations omitted).
Further, there are compelling equitable and public interest reasons for expediting discovery in
this case, most importantly, because the administrative trial to unwind Whole Foods’ merger is
set to begin on February 16, 2009. Whole Foods contends that the Commission is not a fair and
impartial tribunal and has not afforded Whole Foods an opportunity to adequately prepare for
trial. Absent expedited discovery and preliminary injunctive relief, Whole Foods will be
irreparably denied these fundamental due process rights and subjected to losses that cannot be
recovered against the Commission.
Statement of Facts
As alleged in Whole Foods’ Amended Complaint and PI Motion, the Commission
violated Whole Foods’ constitutional due process rights to a fair and impartial proceeding by:
· Prejudging, in appearance if not in reality, the outcome of Whole Foods’ case in

public legal briefs by reaching categorical, unqualified conclusions on the ultimate
merits of the Whole Foods/Wild Oats merger prior to commencing what is required to
be a fair and impartial administrative proceeding;
· Failing to separate the Commission’s investigative/prosecutorial members from its
adjudicatory members; resulting, upon information and belief, in Commissioners
conferring with and giving guidance to the attorneys drafting the Commission’s
aforementioned legal briefs;
· Imposing an unreasonably truncated and arbitrary discovery schedule that was
developed by a Commissioner (not an independent Administrative Law Judge) acting
as Presiding Official over the proceedings, and that prejudices Whole Foods by
giving it just five months to defend its merger in 29 separate geographical markets
across the United States; and
2
· Appointing as Presiding Official of the administrative proceeding one of its own

Commissioners who had prejudged the case, and then subsequently replacing the
Commissioner with an Administrative Law Judge (“ALJ”) and stripping the ALJ of
his independence to modify the truncated schedule without the full Commission’s
permission.
Am. Compl. at ¶4. The Commission’s statements indicating prejudgment and bias on the merits
of Whole Foods’ case included statements in the Commission’s briefs to the D.C. Circuit that it
had already:
· “established that premium natural and organic supermarkets constitute a distinct

market for antitrust purposes;”
· “proved that the premium natural and organic supermarkets market is the appropriate
relevant product market in which to analyze the Whole Foods-Wild Oats merger;”
· reached the “conclusion that the relevant product market is premium natural and
organic supermarkets is supported by extensive evidence presented to the district
court;”
· concluded that “the combination of Whole Foods and Wild Oats will substantially
lessen competition;”
· concluded that Whole Foods’ expert economic analysis is “garbage,” a “sheer guess”
and lacks “any” empirical foundation and that the pricing study of Whole Foods’
expert, Dr. Scheffman, “must be given little weight in a Section 7 case;”
· Whole Foods’ witnesses are “exceptionally unreliable” and “subject to

manipulation.”
Am. Compl. at ¶28.
The Commission’s own Rules of Practice provide that “[w]hile a proceeding is in
adjudicative status within the Commission,”
[n]o member of the Commission, the Administrative Law Judge, or

any other employee who is or who reasonably may be expected to
be involved in the decisional process in the proceeding, shall make
or knowingly cause to be made to . . . any employee or agent of the
Commission who performs investigative or prosecuting functions
in adjudicative proceedings, an ex parte communication relevant
to the merits of that or a factually related proceeding.
16 C.F.R. § 4.7(b)(2) (emphasis added); see also id. at § 4.7(b)(1) (same prohibition on
3
communications from investigative/prosecutorial staff to the Commission or ALJ). An
administrative proceeding enters “adjudicative status” as soon as “the complaint has issued and
the adjudication phase has begun.” See Complaint Counsel’s Response to Respondents’ Motion
For Recusal of Commissioner Rosch, In the matter of Inova Health System Foundation, et al.,
FTC Docket No. 9326, at 5 (May 27, 2008) (hereinafter, “Inova Health”). “For this reason, after
a Part III complaint is voted out, the Commissioners, ALJ, and staff adhere to a strict firewall
that prohibits ex parte communications.” Id. (emphasis added).
Here, the Commissioners voted out the administrative complaint against Whole Foods on
June 27, 2007 — at which time the case entered “adjudicative status” and a “firewall” was
erected between the Commissioners and the investigative/prosecutorial staff. See 16 C.F.R. §
4.7(b)(1), (2). Subsequently, both the General Counsel of the Commission (thus the
Commissioners) and the investigative/prosecutorial staff (including the Bureau of Competition)1
worked on and jointly signed briefs to the D.C. Circuit that contained the statements of
prejudgment and bias on the factual and legal merits of Whole Foods’ case, noted above. Am.
Compl. at ¶94. Upon information and belief, one or more Commissioners conferred with and
gave guidance to the counsel drafting and working on these legal briefs. Id. at ¶95. In addition,
some of the same Complaint Counsel who are currently prosecuting the administrative action
against Whole Foods also served as federal court counsel and signed at least one brief to the D.C.
Circuit along with the Commission’s General Counsel. See Response of FTC to Petition for
Rehearing En Banc, No. 07-5276 (D.C. Cir. 2008); Am. Compl. at ¶96.
1
The D.C. Circuit briefs were signed by both the Director and Deputy Director of the Bureau of Competition, and
the Bureau’s Director of Litigation. According to the FTC’s website: “[t]he Bureau of Competition investigates
potential law violations and seeks legal remedies in federal court or before the FTC’s administrative law judges.”
Statement by David Wales, Acting Director of Bureau of Competition, “About the Bureau of Competition,”
available at http://www.ftc.gov/bc/about.htm (last accessed Dec. 13, 2008) (emphasis added).
4
While in certain contexts it may be proper for the Commissioners to confer with and give
guidance to federal court counsel (e.g., when those counsel are not also prosecuting an
administrative action involving the same underlying merger), it is not proper in this case where
some FTC attorneys are serving as both federal court and administrative Complaint Counsel. By
communicating with these attorneys, the Commissioners have effectively “ma[de] or knowingly
caused to be made” communications to the FTC’s investigative and prosecutorial staff regarding
the merits of the Whole Foods/Wild Oats merger. See 16 C.F.R. § 4.7(b)(1), (2).
Further, the FTC complaint counsel in the Inova Health matter, supra, stated that in that
case, “the Commission ha[d] gone out of its way to limit the conflict inherent in every
proceeding before the members of an administrative body which both votes out and adjudicates
complaints.” See Complaint Counsel’s Response to Respondents’ Motion For Recusal of
Commissioner Rosch, Inova, at 5-6 (May 27, 2008). No such limitations on this “inherent”
conflict were implemented in the present case, as demonstrated below:
Inova Health - FTC Docket No. 9326 Whole Foods - FTC Docket No. 9324
Commissioner Rosch did not participate in the Commissioner Rosch participated in the
Commission’s issuance of the administrative Commission’s issuance of the administrative
complaint.2 complaint.
Commission’s order appointing him as the Commission’s order appointing him as the ALJ
Administrative Law Judge (“ALJ”).3 for the Scheduling Conference.
2
See Respondents’ Motion To Recuse Commissioner J. Thomas Rosch as Administrative Law Judge, Inova Health,
FTC Docket No. 9326, at 2-3 (May 23, 2008), available at, http://www.ftc.gov/os/adjpro/d9326/080523
respmorecuseroschasalj.pdf (last accessed Dec. 12, 2008).
3
See Order Certifying Respondents’ Motion To Recuse To The Commission and Accompanying Statement by J.
Thomas Rosch, Inova Health, FTC Docket No. 9326, at 1-2 (May 29, 2008), available at, http://www.ftc.gov/os/
adjpro/d9326/080529ordercert.pdf (last accessed Dec. 12, 2008).
5
Commissioner Rosch participated in the

Commission’s issuance of the amended
administrative complaint during his service as
the ALJ.
Commissioner Rosch (as the ALJ) set the Commissioner Rosch (as the ALJ) set the
discovery/trial schedule and the Commission discovery/trial schedule and participated in the
did not issue a binding Scheduling Order that Commission’s issuance of a Scheduling Order
limited the ALJ’s discretion to change the that precluded any subsequent modifications to
schedule in any manner. the schedule absent leave of the Commission.
Commission’s order that stated Commissioner Commission’s order that stated Commissioner
Rosch would not participate in any appeal from Rosch would participate in any appeal from
ALJ’s initial decision. 4 the newly-appointed ALJ’s initial decision.
The prejudgments and biases of the Commission demonstrated in its D.C. Circuit briefs,
the alleged contacts between the Commissioners and the FTC’s investigative/prosecutorial staff,
and the failure to limit Commissioner Rosch’s role to protect against the “inherent” conflict in
FTC proceedings (as was done in the Inova Health case), collectively suggest an unfair and
biased proceeding. Thus, the expedited discovery requests below are warranted and relevant to
Whole Foods’ constitutional claims.
Argument
This Court has broad discretion to order discovery and the Federal Rules of Civil
Procedure provide that the Court may expedite discovery. See Watts v. SEC, 482 F.3d 501, 507
(D.C. Cir. 2007); see also Arista Records LLC v. Does 1-19, 551 F.Supp. 2d 1, 6 (D.D.C. 2008).
Where, as here, the plaintiff has a pending PI Motion, expedited discovery is particularly
appropriate to “better enable[] the court to judge the parties’ interests and respective chances for
success on the merits.” Edudata Corp. v. Scientific Computers, Inc., 599 F. Supp. 1084, 1088
(D. Minn. 1984) (granting expedited discovery). Further, as set forth above, “courts have
4
See Order Designating Administrative Law Judge, Inova Health, FTC Docket No. 9326, at 2 (May 9, 2008),
available at, http://www.ftc.gov/os/adjpro/d9326/080509order.pdf (last accessed Dec. 12, 2008).
6
routinely granted expedited discovery in cases [such as Whole Foods' case] involving challenges
to constitutionality of government action.” Ellsworth, 917 F. Supp. at 844.
Coastal States Gas Corp. v. Department of Energy, 84 F.R.D. 278 (D. Del. 1979) is
instructive. In Coastal, the plaintiff-gas company sued the Department of Energy (the “DOE”)
in district court seeking to enjoin ongoing administrative proceedings at the DOE. The plaintiff
discovered some evidence of ex parte communications suggesting that the DOE was “prejudiced,
biased and had prejudged [a key issue in the case], without the benefit of Coastal’s views,
thereby constituting a fundamental denial of Coastal’s rights to due process.” Id. at 281. The
court granted Coastal’s motion for expedited discovery, holding that it was entitled to “uncover
evidence of illegal ex parte communication that will demonstrate that [DOE] is prejudiced,
biased, and had prejudged . . . .” Id. at 282.
Moreover, the Coastal court also held that expedited discovery should “precede”
consideration of the parties’ motions to dismiss and for a preliminary injunction because the
“alleged agency bias” and “allegations of ex parte communications” could demonstrate “an
infirmity serious enough to bring the fairness of the entire proceeding into question.” Id. at 283
(emphasis added); id. (“Coastal must be given a fair opportunity to discover whether those
factors [of fundamental due process violations warranting immediate jurisdiction] that would
rebut DOE’s jurisdictional claim are present in this case.”) (citing Amos Treat & Co v. SEC, 306
F.2d 260 (D.C. Cir. 1962)).
Further, in Amos, the D.C. Circuit held that a SEC Commissioner’s alleged involvement
in prosecutorial/investigative activities leading up to an agency proceeding justified immediate
district court intervention and a preliminary injunction restraining further conduct of the
7
proceedings because “litigants are entitled to an impartial tribunal.” 306 F.2d at 264 (citation
omitted). The court explained:
It is not enough that here no corruption has been charged, indeed

the [SEC] appellants expressly disclaim personal bias and
prejudice. What must control is the policy this court has
previously applied . . . that the investigative as well as the
prosecuting arm of the agency must be kept separate from the
decisional function.
Id. at 266. Accordingly, the court issued an order to the SEC to show cause why a permanent
injunction should not be entered, as to which the SEC could sufficiently respond (i) by
terminating the agency proceedings or (ii) by holding a “full evidentiary hearing for the purpose
of determining upon a complete record whether or not any Commissioner should have been
disqualified” for improper involvement in prosecutorial/investigative activities. Id.
Similarly, in Whole Foods’ case, as set forth above, there is evidence of the
Commission’s prejudgments and biases against Whole Foods contained in D.C. Circuit briefs.
Those briefs were signed by both the Commission’s General Counsel and its
prosecutorial/investigative members from the Bureau of Competition, suggesting improper
contacts between the Commissioners and the investigative/prosecutorial staff regarding the
merger. Whole Foods seeks to uncover the extent and nature of those contacts and the
Commission’s prejudgments and biases. See Coastal States, 84 F.R.D. at 281; see also Amos,
306 F.2d at 264 (“The fundamental requirements of fairness in the performance of [quasi-judicial
functions] functions require at least that one who participants in a case on behalf of any party,
whether actively or merely formally by being on pleadings or briefs, take no part in the decision
of that case by any tribunal on which he may thereafter sit.”); cf. Grolier Inc. v. FTC, 615 F.2d
1215, 1220 (9th Cir. 1980) (“Congress intended to preclude from decision-making in a particular
case not only individuals with the title of ‘investigator’ or ‘prosecutor,’ but all persons who had,
8
in that or a factually related case, been involved with ex parte information, or who had
developed, by prior involvement with the case, a ‘will to win.’”).
Time is of the essence. The administrative trial is set to begin on February 16, 2009, and
Whole Foods has repeatedly argued that the Commission is not a fair and impartial tribunal, and
has denied it the opportunity to reasonably and adequately prepare for trial. Absent immediate
discovery and preliminary injunctive relief, Whole Foods will continue to suffer irreparable
deprivations of due process and incur significant losses, without any legal avenue to recover
money damages against the Commission.
Proposed Expedited Discovery
Whole Foods proposes that expedited discovery at this stage begin with Commissioner
Rosch based on his multiple roles in this matter as, among other things, (i) a member of the
Commission that voted out the administrative complaint against Whole Foods and that worked
on and signed the D.C. Circuit briefs noted above, (ii) as the Presiding Official in the
administrative action, and (iii) as a member of the Commission that will review the ALJ’s initial
decision. The proposed discovery and deadlines follow below.
q Expedited Production of Documents by January 7, 2009 (attached):
Document Request No. 1: All electronic and hardcopy documents, including all drafts,
that were prepared by, edited by or reviewed by Commissioner Rosch (including his
advisors and representatives), that refer to any draft of the administrative complaint filed
against Whole Foods Market, Inc. on or about June 27, 2007, FTC Docket No. 9324.
This request excludes all public documents filed in FTC Docket No. 9324, U.S. District
Court for the District of Columbia, No. 07-1021 and U.S. Court of Appeals for the
District of Columbia Circuit, No. 07-5276.
that were prepared by, edited by or reviewed by Commissioner Rosch (including his
advisors and representatives), after the filing of the initial administrative complaint in
FTC Docket No. 9324 on or about June 27, 2007, that relate or refer in any way to the
FTC’s administrative proceedings (FTC Docket No. 9324) or federal court proceedings
(District Court, No. 07-1021; D.C. Circuit, No. 07-5276) against Whole Foods Market,
Inc. This request excludes all public documents filed in FTC Docket No. 9324, U.S.
9
District Court for the District of Columbia, No. 07-1021 and U.S. Court of Appeals for
the District of Columbia Circuit, No. 07-5276.
that were prepared or edited after the filing of the initial administrative complaint in FTC
Docket No. 9324 on or about June 27, 2007, that contain, memorialize or constitute any
discussion or exchange of information between Commissioner Rosch (including his
advisors and representatives) and any member of the Bureau of Competition, including
but not limited to the administrative Complaint Counsel, that relate or refer in any way to
the FTC’s administrative proceedings (FTC Docket No. 9324) or federal court
proceedings (District Court, No. 07-1021 or D.C. Circuit, No. 07-5276) against Whole
Foods Market, Inc. This request excludes all public documents filed in FTC Docket No.
9324, U.S. District Court for the District of Columbia, No. 07-1021 and U.S. Court of
Appeals for the District of Columbia Circuit, No. 07-5276.
q Expedited Deposition of Commissioner Rosch on January 12, 2009 (attached)

regarding the following matters:
All contacts, communications, collaboration, and/or work of Commissioner Rosch

(including his advisors and representatives) with members of the Bureau of Competition,
including but not limited to administrative Complaint Counsel, that relate or refer in any
way to the FTC’s administrative proceedings (FTC Docket No. 9324) or federal court
proceedings (District Court, No. 07-1021; D.C. Circuit, No. 07-5276) against Whole
Foods Market, Inc.
q Expedited Rule 30(b)(6) Deposition of Federal Trade Commission on January 14,

2009 (attached) regarding the following matters:
All contacts, communications, collaboration, and/or work by any Commissioner

(including any agent, advisor or representative of any Commissioner) — excluding
Commissioner J. Thomas Rosch — with members of the Bureau of Competition,
Foods Market, Inc.
In addition to its clear relevance to Whole Foods’ PI Motion and Amended Complaint,
there are also equitable and public interest justifications for permitting expedited discovery in
this case. See In re Fannie Mae Derivative Litig., No. Civ. 04-1783 (RJL), 2005 WL 433271, *1
(D.D.C. Feb. 23, 2005) (standard for granting expedited discovery is based on the
“reasonableness of the request in light of all of the surrounding circumstances”).
10
First, as noted above, time is of the essence. The administrative trial to unwind the
Whole Foods/Wild Oats merger is scheduled to begin on February 16, 2009. Whole Foods
alleges that the proceeding is fundamentally unfair on constitutional grounds, so expedited
discovery in support of a PI Motion is warranted.
Second, the Commission will incur minimal burden in complying with the requested
discovery. Whole Foods has narrowly scoped its requests to, at this stage in the proceeding,
initially discover evidence of prejudgment by Commissioner Rosch and his potentially improper
contacts with prosecutorial/investigative staff. See Semitool, Inc. v. Tokyo Electron Am., Inc.,
208 F.R.D. 273, 276 (N.D. Cal. 2002) (“Good cause may be found where the need for expedited
discovery, in consideration of the administration of justice, outweighs the prejudice to the
responding party.”). Moreover, when, as here, “one party has an effective monopoly on the
relevant information” the need for discovery is especially acute. See Ray v. Turner, 587 F.2d
1187, 1218 (D.C. Cir. 1987).
Finally, there are important public interests at stake in ensuring that Whole Foods is
given a fair and impartial hearing before an objective agency that has respected the “firewall”
between its prosecutorial/investigative and adjudicatory functions, and the independence of the
ALJ. See Comments of U.S. Chamber of Commerce to FTC’s Notice of Proposed Rulemaking,
73 Fed. Reg. 58832 (Oct. 7, 2008), available at, www.ftc.gov/os/comments/part3and4rules/
58311-00007.pdf (“[T]he ALJs should be truly independent with full power and authority to
oversee and initially decide all aspects of the administrative litigation . . . [o]therwise, the
appearance of independent fact finding is illusory.”) (last accessed Dec. 16, 2008).
11
Conclusion
For the foregoing reasons, Plaintiff respectfully requests that the Court issue an order
requiring Defendant to expedite responses to Plaintiff’s Request for Production of Documents
and Deposition Notices according to the schedule in the Proposed Order filed herewith.
Dated: December 19, 2008 Respectfully submitted,
/s/ Lanny J. Davis

Telephone: (202) 339-8400

1627 I Street, N.W.
Telephone: (202) 204-3500

Market, Inc.
12

)
)
Plaintiff, )
)
v. ) Case No. 1:08-cv-02121 PLF
)
)
Defendant. )
)
PLAINTIFF’S FIRST REQUEST FOR PRODUCTION OF DOCUMENTS
PLEASE TAKE NOTICE that, pursuant to Rules 26 and 34 of the Federal Rules of
Civil Procedure, Plaintiff Whole Foods Market, Inc., by its undersigned attorneys, hereby
requests that Defendant Federal Trade Commission (the “FTC”) produce, by January 7, 2009,
each of the documents defined and described below for inspection and copying at the offices of
Orrick, Herrington & Sutcliffe LLP, 1152 15th Street NW, Washington, DC 20005.
INSTRUCTIONS AND DEFINITIONS
1. This request covers all documents in the possession, custody, or control of the
FTC, as well as any and all documents within the possession, custody, or control of any third
party or parties who, upon request, would surrender possession, custody, or control to the FTC.
2. As used herein:
(a) “Document” or “documents” shall be defined as set forth in Rule 34 of the
Federal Rules of Civil Procedure.
(b) As used herein, the terms “relating to,” “relate to,” “related,”
“concerning,” “supporting,” and any similar term shall mean — unless otherwise indicated —
having any relationship or connection to, concerning, being connected to, commenting on,
responding to, containing, evidencing, showing, memorializing, describing, analyzing, reflecting,
pertaining to, comprising, constituting, or otherwise establishing any reasonable, logical, or
causal connection.
3. Each document request herein requires the production of each document in its
entirety, without abbreviation or expurgation.
4. In construing this request:
(a) The singular includes the plural and the plural includes the singular.
(b) As used herein, the words “or” and “and” mean “and/or.”
5. For each document requested herein which is sought to be withheld under claim
of privilege, provide the following information:
(a) The place, approximate date, and manner of recording, or otherwise
preparing the document;
(b) The name and title of the author, and the name and title of the recipient of
the document;
(c) The name and agency position within the FTC, if any, of each person to
whom the contents of the documents have heretofore been communicated by copy, exhibition,
reading, or substantial summarization;
(d) A statement of the basis on which privilege is claimed and whether or not
the subject matter of the contents of the documents is limited to legal advice or information
provided for the purpose of securing legal advice; and
(e) The number of the request to which the document is responsive.
6. This request shall be deemed continuing so as to require a supplemental response
upon the discovery of other or further documents responsive to these Requests.

DOCUMENT REQUESTS
Request No. 1: All electronic and hardcopy documents, including all drafts, that were
prepared by, edited by or reviewed by Commissioner Rosch (including his advisors and
representatives), that refer to any draft of the administrative complaint filed against Whole Foods
Market, Inc. on or about June 27, 2007, FTC Docket No. 9324. This request excludes all public
documents filed in FTC Docket No. 9324, U.S. District Court for the District of Columbia, No.
07-1021 and U.S. Court of Appeals for the District of Columbia Circuit, No. 07-5276.
prepared by, edited by or reviewed by Commissioner Rosch (including his advisors and
representatives), after the filing of the initial administrative complaint in FTC Docket No. 9324
on or about June 27, 2007, that relate or refer in any way to the FTC’s administrative
proceedings (FTC Docket No. 9324) or federal court proceedings (District Court, No. 07-1021;
D.C. Circuit, No. 07-5276) against Whole Foods Market, Inc. This request excludes all public
documents filed in FTC Docket No. 9324, U.S. District Court for the District of Columbia, No.
07-1021 and U.S. Court of Appeals for the District of Columbia Circuit, No. 07-5276.
prepared or edited after the filing of the initial administrative complaint in FTC Docket No. 9324
on or about June 27, 2007, that contain, memorialize or constitute any discussion or exchange of
information between Commissioner Rosch (including his advisors and representatives) and any
member of the Bureau of Competition, including but not limited to the administrative Complaint
Counsel, that relate or refer in any way to the FTC’s administrative proceedings (FTC Docket
No. 9324) or federal court proceedings (District Court, No. 07-1021; D.C. Circuit, No. 07-5276)
against Whole Foods Market, Inc. This request excludes all public documents filed in FTC
Docket No. 9324, U.S. District Court for the District of Columbia, No. 07-1021 and U.S. Court
of Appeals for the District of Columbia Circuit, No. 07-5276.
Dated: December 19, 2008 Respectfully,
/s/ Lanny J. Davis

Telephone: (202) 339-8400

1627 I Street, N.W.
Telephone: (202) 204-3500

Market, Inc.

)
a Texas Corporation, )
550 Bowie Street, Austin, TX 78703, )
)
Plaintiff, )
) Case No. 1:08-cv-02121
v. )
) Judge Friedman
a federal administrative agency, )
600 Pennsylvania Avenue, N.W., )
Washington, D.C. 20580, )
)
Defendant. )
)
PLAINTIFF’S NOTICE OF DEPOSITION OF

COMMISSIONER J. THOMAS ROSCH
To: Jeffrey A. Taylor

Rudolph Contreras
W. Mark Nebeker
United States Attorney’s Office
Judiciary Center Building
555 Fourth Street, N.W.
William Blumenthal
John F. Daly
Lawrence DeMille-Wagman
Federal Trade Commission
600 Pennsylvania Avenue, N.W.
PLEASE TAKE NOTICE that, pursuant to Fed. R. Civ. P. 30, Plaintiff Whole Foods
Market, Inc. will take the deposition upon oral examination of J. Thomas Rosch, Commissioner,
Federal Trade Commission, 600 Pennsylvania Avenue, N.W., Washington, D.C. 20580, on
January 12, 2009, at the offices of Orrick, Herrington & Sutcliffe LLP, 1152 15th Street N.W.,
Washington, D.C. 20005. This deposition will commence at 9:30 a.m. and will continue from
day to day until completed. This deposition will be taken before a notary public or other officer
authorized to administer oaths and shall be recorded by sound or stenographic means.
The deposition shall cover the following matters:
All contacts, communications, collaboration, and/or work of Commissioner Rosch

(including his advisors and representatives) with members of the Bureau of Competition,
Foods Market, Inc.
/s/ Lanny J. Davis

Telephone: (202) 339-8400

1627 I Street, N.W.
Telephone: (202) 204-3500

Market, Inc.

)
)
Plaintiff, )
)
v. ) Case No. 1:08-cv-02121 PLF
)
)
Defendant. )
)
PLAINTIFF’S NOTICE OF RULE 30(B)(6) DEPOSITION

OF DEFENDANT FEDERAL TRADE COMMISSION
To: Jeffrey A. Taylor

Rudolph Contreras
W. Mark Nebeker
United States Attorney’s Office
Judiciary Center Building
555 Fourth Street, N.W.
William Blumenthal
John F. Daly
Lawrence DeMille-Wagman
Federal Trade Commission
600 Pennsylvania Avenue, N.W.
PLEASE TAKE NOTICE that, pursuant to Fed. R. Civ. P. 30(b)(6), Plaintiff Whole
Foods Market, Inc. will take the deposition upon oral examination of Defendant Federal Trade
Commission, 600 Pennsylvania Avenue, N.W., Washington, D.C. 20580, on January 14, 2009,
at the offices of Orrick, Herrington & Sutcliffe LLP, 1152 15th Street N.W., Washington, D.C.
20005. This deposition will commence at 9:30 a.m. and will continue from day to day until
completed. This deposition will be taken before a notary public or other officer authorized to
administer oaths and shall be recorded by sound or stenographic means.

Pursuant to Rule 30(b)(6) of the Federal Rules of Civil Procedure, Defendant Federal
Trade Commission is directed to designate one or more person(s) to testify in this action on its
behalf as to the following matters:
All contacts, communications, collaboration, and/or work by any Commissioner

(including any agent, advisor or representative of any Commissioner) — excluding
Commissioner J. Thomas Rosch — with members of the Bureau of Competition,
Foods Market, Inc.
/s/ Lanny J. Davis

Telephone: (202) 339-8400

1627 I Street, N.W.
Telephone: (202) 204-3500

Market, Inc.
CERTIFICATE OF SERVICE
Pursuant to LCvR 5.3, I hereby certify that on the 19th day of December, 2008, I
electronically filed the with the Clerk of the Court Plaintiff Whole Foods Market, Inc.’s
Motion for Expedited Discovery, a supporting memorandum, and a proposed order, using
the CM/ECF system, which will automatically send notification of the filing to the
following counsel of record:
W. Mark Nebeker
Assistant United States Attorney
Civil Division
U.S. Attorney's Office for the District of Columbia
555 4th Street, NW
Washington, DC 20530
/s/ Lanny Davis___________________

Orrick, Herrington & Sutcliffe LLP
1152 15th Street, NW
Washington, DC 20005
(202) 339-8400

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Case 1:08-cv-02121-PLF Document 13 Filed 12/19/2008 Page 1 of 23

IN THE UNITED STATES DISTRICT COURT

PLAINTIFF WHOLE FOODS MARKET, INC.’S

also filing herewith a Proposed Order.

motion at the earliest possible date.

Dated: December 19, 2008 Respectfully submitted,

/s/ Lanny J. Davis

W. Stephen Cannon (D.C. Bar No. 303727)

Attorneys for Plaintiff Whole Foods

IN THE UNITED STATES DISTRICT COURT

PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES

and investigative members of Defendant Federal Trade Commission (“FTC” or “Commission”)

deposition notice of the Commission are attached hereto.

impartial administrative proceeding. “[C]ourts have routinely granted expedited discovery in

cases involving challenges to constitutionality of government action.” Ellsworth Assocs. v.

discovery in connection with an application for . . . preliminary injunction”) (citations omitted).

recovered against the Commission.

As alleged in Whole Foods’ Amended Complaint and PI Motion, the Commission

· Prejudging, in appearance if not in reality, the outcome of Whole Foods’ case in

· Appointing as Presiding Official of the administrative proceeding one of its own

· “established that premium natural and organic supermarkets constitute a distinct

· Whole Foods’ witnesses are “exceptionally unreliable” and “subject to

Am. Compl. at ¶28.

The Commission’s own Rules of Practice provide that “[w]hile a proceeding is in

adjudicative status within the Commission,”

[n]o member of the Commission, the Administrative Law Judge, or

communications from investigative/prosecutorial staff to the Commission or ALJ). An

that prohibits ex parte communications.” Id. (emphasis added).

Commissioners) and the investigative/prosecutorial staff (including the Bureau of Competition)1

complaints.” See Complaint Counsel’s Response to Respondents’ Motion For Recusal of

conflict were implemented in the present case, as demonstrated below:

Commissioner Rosch participated in the

Whole Foods’ constitutional claims.

to constitutionality of government action.” Ellsworth, 917 F. Supp. at 844.

biased, and had prejudged . . . .” Id. at 282.

F.2d 260 (D.C. Cir. 1962)).

in prosecutorial/investigative activities leading up to an agency proceeding justified immediate

omitted). The court explained:

It is not enough that here no corruption has been charged, indeed

disqualified” for improper involvement in prosecutorial/investigative activities. Id.

prosecutorial/investigative members from the Bureau of Competition, suggesting improper

developed, by prior involvement with the case, a ‘will to win.’”).

money damages against the Commission.

Proposed Expedited Discovery

decision. The proposed discovery and deadlines follow below.

q Expedited Production of Documents by January 7, 2009 (attached):

q Expedited Deposition of Commissioner Rosch on January 12, 2009 (attached)

All contacts, communications, collaboration, and/or work of Commissioner Rosch

q Expedited Rule 30(b)(6) Deposition of Federal Trade Commission on January 14,

All contacts, communications, collaboration, and/or work by any Commissioner

“reasonableness of the request in light of all of the surrounding circumstances”).

alleges that the proceeding is fundamentally unfair on constitutional grounds, so expedited

discovery in support of a PI Motion is warranted.

discovery, in consideration of the administration of justice, outweighs the prejudice to the

1187, 1218 (D.C. Cir. 1987).

73 Fed. Reg. 58832 (Oct. 7, 2008), available at, www.ftc.gov/os/comments/part3and4rules/

requiring Defendant to expedite responses to Plaintiff’s Request for Production of Documents

Dated: December 19, 2008 Respectfully submitted,

/s/ Lanny J. Davis

W. Stephen Cannon (D.C. Bar No. 303727)

Attorneys for Plaintiff Whole Foods

IN THE UNITED STATES DISTRICT COURT