Filing 158

FINAL ORDER GRANTING MOTION TO COMPEL FTC DOCUMENTS. Signed by Magistrate Judge Jacqueline Scott Corley on 12/8/2011. (ahm, COURT STAFF) (Filed on 12/8/2011)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA United States District Court For the Northern District of California 10 11 12 13 14 No. C10-4429-EMC (JSC) CHURCH & DWIGHT CO., INC, FINAL ORDER GRANTING MOTION TO COMPEL FTC DOCUMENTS Plaintiff, v. MAYER LABORATORIES, INC., 15 Defendant. 16 / 17 18 19 20 21 22 23 24 25 26 27 28 This antitrust lawsuit involves the United States condom market. Mayer Laboratories, Inc. (“Mayer”) seeks all documents Church & Dwight Co. (“Church & Dwight”) disclosed to the Federal Trade Commission (“FTC”) in connection with the FTC’s investigation of Church & Dwight. The Court previously ruled that Church & Dwight’s communications with the FTC are not protected from discovery as confidential, attorney work-product, attorney-client privileged, or settlement communications. (Dkt. Nos. 146, 148.) At that time the Court did not address Mayer’s additional argument that Church & Dwight had waived any objection (other than confidentiality) by failing to make the objection in its written discovery response. The Court also did not address Church & Dwight’s assertion--raised for the first time at oral argument--that Mayer’s previous counsel had, in effect, agreed that Church & Dwight did not 1 have to produce communications between its outside counsel and the FTC. Church & Dwight subsequently moved for reconsideration and for a stay pending 2 appeal to the district court. (Dkt. No. 149.) Church & Dwight sought reconsideration of the 4 Court’s orders on the ground that it had an explicit oral confidentiality agreement with the 5 FTC which bars the discovery of the FTC documents in this lawsuit. The Court granted a 6 temporary stay and then ordered Church & Dwight to file a brief which addresses every 7 single argument it has in opposition to production of the FTC documents (other than those 8 already resolved by the Court ) and gave Mayer the opportunity to respond. The purpose of 9 the supplemental briefing was to ensure that the district court has all of Church & Dwight’s 10 United States District Court For the Northern District of California 3 arguments before him in a single proceeding. After carefully reviewing the parties’ written 11 submissions, and having had the benefit of oral argument on December 8, 2011, the Court 12 grants Mayer’s motion to compel in its entirety. 13 First, the Court denies Church & Dwight’s request that the Court reconsider its 14 confidentiality ruling on the ground that, even apart from the FTC confidentiality regulations, 15 Church & Dwight had an oral confidentiality agreement with the FTC. The purported 16 existence of such an agreement is not a proper ground for reconsideration. The parties’ 17 original joint letter brief squarely raised the issue of the confidentiality of the FTC 18 documents. (Dkt. No. 138.) If Church & Dwight believed that the purported oral argument is 19 additional or even independent support for denying the motion to compel it should have 20 raised it in the joint letter brief. Moreover, the case Church & Dwight cited as support for its 21 argument that the documents should not be produced, Aronson v. McKesson HBOC, Inc., 22 2005 WL 934331 (N.D. Cal. March 31, 2005), involved a written confidentiality agreement. 23 The purported confidentiality is simply not a proper basis for reconsideration. See Civ. L.R. 24 3-9(a). 25 In any event, even accepting that there was such an oral agreement, the Court’s ruling 26 remains the same. The Court’s order expressly adopted the line of cases which holds that 27 providing documents to a government agency during an investigation waives any attorney 28 work product or attorney-client privilege even when the documents are produced pursuant to 2 1 a confidentiality agreement. (Dkt. No. 146 at 5.) The line of case the Court finds more 2 persuasive involved similar agreements. See, e.g., United States v. Reyes, 239 F.R.D. 591, 3 604 (N.D. Cal. 2006); United States v. Bergonzi, 215 F.R.D. 487, 497 (N.D. Cal. 2003). 4 Indeed, even under the agreement belatedly proffered by Church & Dwight the FTC retained 5 the right to share the documents with other federal agencies and even state agencies. (Dkt 6 No. 153-4.) 7 Second, for the reasons stated in the order of November 18, 2011, the Court finds that 8 Church & Dwight’s communications with the FTC, whether through outside counsel or 9 otherwise, are not protected from discovery as attorney-client privilege, attorney-work United States District Court For the Northern District of California 10 product, or settlement communications. (Dkt No. 146 at 4-6.) In any event, the Court also 11 finds that Church & Dwight has waived all of these privilege objections to production by 12 failing to specifically raise the objections in its written discovery response to Request No. 4. 13 (Dkt. No. at138 at 19-20.) The boilerplate objections at the beginning of its discovery 14 response are insufficient as a matter of Ninth Circuit law. See Burlington N. & Santa Fe Ry. 15 Co. v. United States Dist. Ct. of Mont., 408 F.3d 1142, 1149 (9th Cir. 2005). The specific 16 objections are not a mere technical requirement; they put the opposing party on notice that 17 certain documents are not being produced. Here, Church & Dwight represented that subject 18 only to its confidentiality objection based on the FTC regulations it would produce 19 documents responsive to the request.1 (Dkt. No. 138 at 20.) Finally, stating that documents 20 are confidential because of certain FTC regulations in no way places a party on notice that 21 documents are being withheld on attorney work product and privilege grounds. 22 Third, the Court finds that Mayer did not orally agree to exclude from its FTC 23 document request Church & Dwight’s outside counsel’s communications with the FTC. 24 Mayer has offered sworn testimony that no such agreement was reached and the only 25 evidence offered by Church & Dwight, a single email, does not contradict Mayer’s evidence. 26 27 1 Although not in the record, at oral argument on December 8 Church & Dwight asserted that when the case was in New Jersey Church & Dwight had advised Mayer that it would not 28 produce certain FTC documents. Such assertion, if made, was made before the document request at issue and Church & Dwight’s written response and is therefore not relevant. 3 1 Fourth, Church & Dwight’s assertion that the document request is overbroad is made 2 too late. As with privilege, Church & Dwight did not interpose a relevancy or overbreadth 3 objection to document Request No. 4. (Dkt. No.138 at 20.) To the contrary, it affirmatively 4 represented that subject to and without waiving its confidentiality objection “it will produce 5 of copy of documents responsive to this Request.” (Id.) And, as explained above, its 6 boilerplate objection is insufficient as a matter of law. See Burlington N. & Santa Fe Ry. 7 Co., 408 F.3d at 1149. Again, the objection requirement is not merely technical; without 8 such an objection there was no opportunity for a meet and confer as to relevancy in a timely 9 manner. United States District Court For the Northern District of California 10 Finally, the Court notes that Church & Dwight’s supplemental brief assumes that what 11 is at issue is what was encompassed by the district court’s October 12, 2011 minute order. 12 (Dkt. No. 132.) The Court disagrees. What the Court has--and had--pending before it is 13 document Request No. 4 and Church & Dwight’s refusal to produce all documents 14 responsive to that request. That request seeks all documents “disclosed” to the FTC, not just 15 those documents produced in response to a subpoena. The Court has given Church & 16 Dwight ample opportunity to raise every objection it has to production of all of the 17 responsive documents and has now resolved all of those objections. 18 19 20 Accordingly, Church & Dwight shall produce all documents responsive to Mayer’s document Request No. 4 by Friday, December 9, 2011. IT IS SO ORDERED. 21 22 Dated: December 8, 2011 23 JACQUELINE SCOTT CORLEY UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 4

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