Antitrust Law Daily Wrap Up, ANTITRUST—E.D.N.Y.: Court orders expanded discovery from Target in Gerber-Perrigo infant formula case, (Jan 27, 2026)

By Martin A. Steinberg, J.D.

Target’s internal and alternative-supplier communications are relevant to plaintiffs’ market definition and market power claims and are not unduly burdensome to produce.

The federal district court in Brooklyn, New York, granted modified a magistrate judge’s discovery ruling to require nonparty Target Corp. to produce additional documents in the infant formula antitrust litigation against Gerber Products Company, Perrigo Company PLC, L. Perrigo Company, and PBM Nutritionals, LLC. Plaintiffs, a group of consumers who purchased store-brand infant formula, sought records relating to Target’s private-label sourcing practices. The court concluded that Target’s internal communications and records concerning alternative suppliers are relevant to plaintiffs’ market definition and market power theories and fall within the permissible scope of discovery. While the court declined to compel production of broader categories of information, it determined that the targeted discovery sought by plaintiffs is proportional to the needs of the case and not unduly burdensome (Conry v. Gerber Products Co., No. 1:25-mc-04205-NG-AYS (E.D.N.Y. Jan. 26, 2026)).

Plaintiffs sought review under Federal Rule of Civil Procedure 72 of a magistrate judge’s November 20, 2025, discovery order denying portions of their subpoena requests directed to nonparty Target. The subpoena, served on February 13, 2025, sought documents and communications related to Target’s private-label infant formula business, including supplier relationships and alternative sourcing options.

Plaintiffs argued that the requested materials are relevant to their market definition and market power claims and could provide evidence regarding competitive alternatives available to large retailers. Target opposed the discovery, asserting that the requests were overbroad, imposed an undue burden on a nonparty, and were disproportionate to the needs of the case. The district court framed the dispute as whether the magistrate judge erred in limiting plaintiffs’ nonparty discovery requests and whether the order should be modified to permit additional targeted production.

Related case. The court noted that the discovery dispute arises in connection with a related antitrust action pending in the Eastern District of New York brought by P&L Development, LLC against Gerber and other defendants. In that case, P&L Development alleges that the defendants conspired to prevent its entry into the store-brand infant formula market to maintain market dominance and exclude lower-priced competitors.

Discovery order modified in part. Applying the Rule 72 standard of review, the district court concluded that the magistrate judge’s ruling should be modified in part. The court found that the plaintiffs established the relevance of specific categories of Target’s internal documents and communications concerning alternative infant formula suppliers and private-label sourcing decisions. It explained that these materials bear directly on the plaintiffs’ market definition and market power theories, including whether retailers had meaningful competitive alternatives to the defendants and whether supply constraints affected pricing and output.

The court rejected Target’s argument that the requested discovery was categorically disproportionate, emphasizing that the subpoenas were limited to specific subject areas and time periods tied to the alleged anticompetitive conduct. The court further found that Target failed to demonstrate that compliance would impose an undue burden, noting that nonparty discovery is appropriate where the requested materials are relevant, narrowly tailored, and reasonably accessible. However, the court declined to compel production of broader categories of information that were insufficiently connected to plaintiffs’ liability theories or extended beyond the competitive issues presented.

The court explained that the documents and communications sought from Target regarding alternative suppliers and sourcing decisions are probative of plaintiffs’ market definition and market power claims because they may show whether retailers had realistic competitive alternatives to defendants. This information could shed light on supply constraints and retailer negotiating leverage in the private-label infant formula market. Accordingly, the court held that the requested materials fall within the permissible scope of discovery, subject to proportionality limits.

In fashioning relief, the court ordered Target to produce additional responsive documents relating to internal assessments of supplier availability, communications with alternative manufacturers, and materials reflecting sourcing decisions relevant to the private-label infant formula market. At the same time, the court affirmed portions of the magistrate judge’s order that limited discovery requests deemed overly expansive or marginally relevant, emphasizing the need to balance plaintiffs’ evidentiary needs against proportionality concerns applicable to nonparty discovery.

The court granted plaintiffs’ Rule 72 objections in part and denied them in part, modifying the November 20, 2025, order accordingly, and directed the parties and nonparty Target to proceed with production consistent with the revised scope of discovery.

The Case is No. 1:25-mc-04205-NG-AYS.

Judge: Gershon, N.

Attorneys: Adrian John Buonanoce (Pearson Warshaw, LLP) for Thomas Conry.

Companies: Gerber Products Co.

Cases: Antitrust NewYorkNews