Whole Foods V. Ftc - Motion For Expedited Discovery

Case 1:08-cv-02121-PLF

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

WHOLE FOODS MARKET, INC., Plaintiff, v. FEDERAL TRADE COMMISSION, Defendant.

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Case No. 1:08-cv-02121 PLF

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.

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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. Washington, D.C. 20006 Telephone: (202) 204-3500 Attorneys for Plaintiff Whole Foods Market, Inc.

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

WHOLE FOODS MARKET, INC., Plaintiff, v. FEDERAL TRADE COMMISSION, Defendant.

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Case No. 1:08-cv-02121 PLF

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

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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;

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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;

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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

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·

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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;”

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“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;”

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reached the “conclusion that the relevant product market is premium natural and organic supermarkets is supported by extensive evidence presented to the district court;”

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concluded that “the combination of Whole Foods and Wild Oats will substantially lessen competition;”

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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;”

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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

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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.

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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).

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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 Commission’s issuance of the administrative complaint.2

Commissioner Rosch participated in the Commission’s issuance of the administrative complaint.

Commissioner Rosch did not participate in the Commission’s order appointing him as the Administrative Law Judge (“ALJ”).3

Commissioner Rosch participated in the Commission’s order appointing him as the ALJ for the Scheduling Conference.

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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).

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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 discovery/trial schedule and the Commission did not issue a binding Scheduling Order that limited the ALJ’s discretion to change the schedule in any manner.

Commissioner Rosch (as the ALJ) set the discovery/trial schedule and participated in the Commission’s issuance of a Scheduling Order that precluded any subsequent modifications to the schedule absent leave of the Commission.

Commissioner Rosch did not participate in the Commission’s order that stated Commissioner Rosch would not participate in any appeal from ALJ’s initial decision. 4

Commissioner Rosch participated in the Commission’s order that stated Commissioner Rosch would participate in any appeal from 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).

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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

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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,

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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. Document Request No. 2: All electronic and hardcopy documents, including all drafts, 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

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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. Document Request No. 3: All electronic and hardcopy documents, including all drafts, 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, 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. 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”).

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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).

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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 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. Washington, D.C. 20006 Telephone: (202) 204-3500 Attorneys for Plaintiff Whole Foods Market, Inc.

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA WHOLE FOODS MARKET, INC., Plaintiff, v. FEDERAL TRADE COMMISSION, Defendant.

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Case No. 1:08-cv-02121 PLF

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,

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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.

5.

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.”

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

(c)

The name and agency position within the FTC, if any, of each person to

the document;

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) 6.

The number of the request to which the document is responsive.

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.

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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. Request No. 2: All electronic and hardcopy documents, including all drafts, 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. 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. Request No. 3: All electronic and hardcopy documents, including all drafts, 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; D.C. Circuit, No. 07-5276) against Whole Foods Market, Inc. This request excludes all public documents filed in FTC

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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 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. Washington, D.C. 20006 Telephone: (202) 204-3500 Attorneys for Plaintiff Whole Foods Market, Inc.

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA WHOLE FOODS MARKET, INC., a Texas Corporation, 550 Bowie Street, Austin, TX 78703, Plaintiff, v. FEDERAL TRADE COMMISSION, a federal administrative agency, 600 Pennsylvania Avenue, N.W., Washington, D.C. 20580, Defendant.

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Case No. 1:08-cv-02121 Judge Friedman

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. Washington, D.C. 20001 William Blumenthal John F. Daly Lawrence DeMille-Wagman Federal Trade Commission 600 Pennsylvania Avenue, N.W. Washington, D.C. 20580 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.,

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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, 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.

Dated: December 19, 2008

Respectfully, /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. Washington, D.C. 20006 Telephone: (202) 204-3500 Attorneys for Plaintiff Whole Foods Market, Inc.

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA WHOLE FOODS MARKET, INC., Plaintiff, v. FEDERAL TRADE COMMISSION, Defendant.

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Case No. 1:08-cv-02121 PLF

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. Washington, D.C. 20001 William Blumenthal John F. Daly Lawrence DeMille-Wagman Federal Trade Commission 600 Pennsylvania Avenue, N.W. Washington, D.C. 20580 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.

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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, 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.

Dated: December 19, 2008

Respectfully, /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. Washington, D.C. 20006 Telephone: (202) 204-3500 Attorneys for Plaintiff Whole Foods Market, Inc.

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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___________________ Lanny J. Davis (D.C. Bar No. 158535) Orrick, Herrington & Sutcliffe LLP 1152 15th Street, NW Washington, DC 20005 (202) 339-8400