Lopes et al v. Vieira et al

Filing 256

MODIFIED ORDER Re Defendant Downey Brand's Motion for Summary Judgment Against Valley Gold LLC, Plaintiff's Motion to Compel Production of Documents and Defendant Downey Brand's Motion for Protective Order, Signed by Judge Oliver W. Wanger on 7/6/2010. (Arellano, S.)

Lopes et al v. Vieira et al

Doc. 256

1 2 3 4

J A M E S R. KIRBY II (SBN 088911) S E G A L & KIRBY LLP 7 7 0 L Street, Suite 1440 S a c ra m e n to , CA 95814 T e le p h o n e : [phone] F a c s im ile : [phone] A tto rn e ys for Defendant DOW N E Y BRAND LLP

5 6 U N IT E D STATES DISTRICT COURT 7 E A S T E R N DISTRICT OF CALIFORNIA 8 F R E S N O DIVISION 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 D e fe n d a n ts 25 26 27 28 / The Court issued a February 1, 2010 Memorandum Decision resolving th re e motions arising from attorney-client privilege and work product objections
-1 M o d if ie d Order re Downey Brand's MSJ Against Valley Gold LLC, Plaintiff's Motion to Com p e l Production of D o c u m e n ts , Downey Brand's Motion for a Protective Order and Downey Brand's Motion for R e c o n s id e r a t io n

M A N U E L LOPES and MARIANA L O P E S , dba LOPES DAIRY; R A Y M O N D LOPES; JOSEPH L O P E S and MICHAEL LOPES, in d ivid u a lly and dba W E S T S ID E H O L S T E IN ; ALVARO M A C H A D O and TONY ESTEVAM, P la in tiffs , vs .

C A S E NO. 1:06-CV-01243-OW W -S M S

M O D IF IE D ORDER RE DEFENDANT D O W N E Y BRAND'S MOTION FOR S U M M AR Y JUDGMENT AGAINST V AL L E Y GOLD LLC, PLAINTIFF'S M O T IO N TO COMPEL PRODUCTION OF D O C U M E N T S AND DEFENDANT D O W N E Y BRAND'S MOTION FOR A P R O T E C T IV E ORDER

G E O R G E VIEIRA; MARY V IE IR A ;C A L IF O R N IA MILK M A R K E T , a California Corporation; V A L L E Y GOLD, LLC, a California L im ite d Liability Company; GENSKEM U L D E R , LLP a California Limited L ia b ility Partnership; ANTHONY Judge Oliver W. Wanger C A R Y ; DOW N E Y BRAND LLP, a C a lifo rn ia Limited Liability P a rtn e rs h ip ; CENTRAL VALLEY D A IR Y M E N , INC. a California Food a n d Agricultural Nonprofit C o o p e ra tive Association, and DOES 1 through 25, inclusive,

Dockets.Justia.com

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

a s s e rte d by defendant Downey Brand LLP ("Downey Brand"). The Court issued a J u n e 23, 2010 Memorandum Decision granted Downey Brand's motion for re c o n s id e ra tio n of a portion of that ruling and modifying its original order. T h e combined effect of these rulings is as follows: (a ) On July 10, 2009, Downey Brand filed a motion for summary judgment, s e e k in g judgment on a cause of action for professional negligence asserted a g a in s t Downey Brand by Plaintiffs suing derivatively on behalf of Downey Brand's fo rm e r client, Valley Gold, LLC ("Valley Gold"). Downey Brand contended that it c o u ld not defend itself against the derivative cause of action without divulging in fo rm a tio n protected by the attorney-client privilege and, therefore, was entitled to ju d g m e n t on that claim. (b ) On August 3, 2009, Plaintiffs filed a motion to compel Downey Brand to p ro d u c e 21 categories of documents Downey Brand had declined to produce after a s s e rtin g the attorney-client privilege and work product doctrine objections. (c ) On August 7, 2009, Downey Brand filed a motion for a protective order, s e e k in g the return by Plaintiffs of any Downey Brand bills and invoices in Plaintiffs' p o s s e s s io n that had been sent by Downey Brand to its client, Valley Gold, and o ve r which Downey Brand asserted the protections of the attorney-client privilege a n d work product doctrine. T h e two discovery motions, to compel production of records and for a p ro te c tiv e order, were initially assigned to Magistrate Judge Snyder, who on S e p te m b e r 16, 2009 held a telephonic conference with counsel for the parties. T e le p h o n ic a lly participating at the conference were Douglas Applegate on behalf o f Plaintiffs, James Kirby on behalf of Downey Brand, and Vincent O'Gara on b e h a lf of Genske Mulder LLP ("Genske Mulder"). M a g is tra te Judge Snyder held a further hearing on the two motions on O c to b e r 9, 2009. James Kirby appeared and argued on behalf of Downey Brand.
-2M o d if ie d Order re Downey Brand's MSJ Against Valley Gold LLC, Plaintiff's Motion to Com p e l Production of D o c u m e n ts , Downey Brand's Motion for a Protective Order and Downey Brand's Motion for R e c o n s id e r a t io n

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

D o u g la s A. Applegate appeared telephonically on behalf of Plaintiffs; and Vincent O 'G a ra appeared telephonically on behalf of Genske Mulder. After further briefing on the issues, the parties on December 21, 2009 a p p e a re d in Courtroom Three of the District Court for an extended hearing on p e n d in g motions for summary judgment and summary adjudication, before the H o n o ra b le Oliver W . W a n g e r, presiding. Douglas A. Applegate appeared on b e h a lf of Plaintiffs; James Kirby appeared on behalf of Downey Brand; and V in c e n t O'Gara appeared on behalf of Genske Mulder. By order issued on D e c e m b e r 23, 2009, the discovery motions were reassigned from Judge Snyder fo r decision by Judge W a n g e r. O n February 1, 2010, the Court issued a Memorandum Decision addressing th e issues and arguments raised by the three motions, and announcing its ruling o n all three motions. On June 23, 2010, the Court issued a Memorandum D e c is io n granting Downey Brand's motion for reconsideration of a portion of that r u l in g . T h e re fo re , having considered the arguments of counsel and the evidence b o th in favor of and against all motions, with good cause appearing and for those re a s o n s set forth more particularly in the Court's February 1, 2010 Memorandum o f Decision and the June 23, 2010, Memorandum of Decision, IT IS HEREBY O R D E R E D THAT: 1 . Downey Brand's Motion for Summary Judgment against Valley Gold filed o n July 10, 2009 is DENIED. 2 . Downey Brand's Motion for Protective Order filed August 7, 2009 is D E N IE D . 3 . Plaintiffs' motion to compel filed August 3, 2009 is GRANTED in part and D E N IE D in part as follows: (a ) the portion of Plaintiffs' motion to compel production of billing records
-3 M o d if ie d Order re Downey Brand's MSJ Against Valley Gold LLC, Plaintiff's Motion to Com p e l Production of D o c u m e n ts , Downey Brand's Motion for a Protective Order and Downey Brand's Motion for R e c o n s id e r a t io n

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

a n d invoices related to Central Valley Dairymen, Inc., category 1 of the 21 c a te g o rie s of documents sought by Plaintiffs, is DENIED; (b ) the portion of Plaintiffs' motion seeking to compel production of d o c u m e n ts concerning a cheese distributorship for Valley Gold, sought in c a te g o rie s 13 through 17 of Plaintiffs' request, is DENIED; (c ) the portion of Plaintiffs' motion seeking to compel production of d o c u m e n ts responsive to category 1 (as it pertains to Valley Gold) and categories 2 through 12 of Plaintiffs' request for documents is GRANTED, the Court finding th a t because of the cessation of the business of Valley Gold, LLC, the lack of a n yo n e to act on its behalf and for the other reasons set forth in the Memorandum o f Decision, the protection of the attorney-client privilege does not now apply to a n y communications between Downey Brand and Valley Gold, LLC; (d) Downey Brand's request for reconsideration of the Court's February 1, 2 0 1 0 Memorandum Decision is GRANTED and Plaintiffs' request to compel p ro d u c tio n of documents responsive to categories 18 to 21 of Plaintiffs' request is D E N IE D the Court finding that the requested documents are within the work p ro d u c t doctrine and are not relevant to any claim Plaintiffs make against Downey B ra n d for the reasons set forth in the June 23, 2010 Memorandum Decision; (e ) the Clerk of Court is directed to file and docket Downey Brand's Second C o rre c te d Privilege Log; (f) Downey Brand shall retain the two binders and their entire contents, c a p tio n e d Privileged Documents for In Camera Review provided to the Court on D e c e m b e r 29, 2009, until the final resolution of this case, including any appellate r e v ie w . D o w n e y Brand is ordered to personally serve a copy of this order on Joe M a c h a d o , the president of Valley Gold and file a proof of service with the Court. T h e Court hereby stays the effective date of this order for fourteen days to
-4 M o d if ie d Order re Downey Brand's MSJ Against Valley Gold LLC, Plaintiff's Motion to Com p e l Production of D o c u m e n ts , Downey Brand's Motion for a Protective Order and Downey Brand's Motion for R e c o n s id e r a t io n

1 2 3 4 5 6 7 8 9

p e rm it Valley Gold to seek further review of this order. Unless stayed by further o rd e r of this Court or the Ninth Circuit Court of Appeals, this order will become fin a l fourteen days from the date it is filed. O n c e the order becomes final, within seven days or as otherwise agreed b e tw e e n the parties, Downey Brand will produce documents responsive to P la in tiffs ' Request for Production of Documents as provided in this order.

IT IS SO ORDERED. D a te d : July 6, 2010 /s/ OLIVER W . W A N G E R United States District Judge

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

-5 M o d if ie d Order re Downey Brand's MSJ Against Valley Gold LLC, Plaintiff's Motion to Com p e l Production of D o c u m e n ts , Downey Brand's Motion for a Protective Order and Downey Brand's Motion for R e c o n s id e r a t io n