CHURCH & DWIGHT CO., INC. v. MAYER LABORATORIES, INC.

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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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

United States District Court
For the Northern District of California

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No. C10-4429-EMC (JSC)

CHURCH & DWIGHT CO., INC,

FINAL ORDER GRANTING MOTION
TO COMPEL FTC DOCUMENTS

Plaintiff,
v.
MAYER LABORATORIES, INC.,

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Defendant.

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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

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have to produce communications between its outside counsel and the FTC.
Church & Dwight subsequently moved for reconsideration and for a stay pending

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appeal to the district court. (Dkt. No. 149.) Church & Dwight sought reconsideration of the

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Court’s orders on the ground that it had an explicit oral confidentiality agreement with the

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FTC which bars the discovery of the FTC documents in this lawsuit. The Court granted a

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temporary stay and then ordered Church & Dwight to file a brief which addresses every

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single argument it has in opposition to production of the FTC documents (other than those

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already resolved by the Court ) and gave Mayer the opportunity to respond. The purpose of

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the supplemental briefing was to ensure that the district court has all of Church & Dwight’s

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United States District Court
For the Northern District of California

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arguments before him in a single proceeding. After carefully reviewing the parties’ written

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submissions, and having had the benefit of oral argument on December 8, 2011, the Court

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grants Mayer’s motion to compel in its entirety.

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First, the Court denies Church & Dwight’s request that the Court reconsider its

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confidentiality ruling on the ground that, even apart from the FTC confidentiality regulations,

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Church & Dwight had an oral confidentiality agreement with the FTC. The purported

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existence of such an agreement is not a proper ground for reconsideration. The parties’

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original joint letter brief squarely raised the issue of the confidentiality of the FTC

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documents. (Dkt. No. 138.) If Church & Dwight believed that the purported oral argument is

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additional or even independent support for denying the motion to compel it should have

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raised it in the joint letter brief. Moreover, the case Church & Dwight cited as support for its

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argument that the documents should not be produced, Aronson v. McKesson HBOC, Inc.,

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2005 WL 934331 (N.D. Cal. March 31, 2005), involved a written confidentiality agreement.

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The purported confidentiality is simply not a proper basis for reconsideration. See Civ. L.R.

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3-9(a).

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In any event, even accepting that there was such an oral agreement, the Court’s ruling

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remains the same. The Court’s order expressly adopted the line of cases which holds that

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providing documents to a government agency during an investigation waives any attorney

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work product or attorney-client privilege even when the documents are produced pursuant to
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a confidentiality agreement. (Dkt. No. 146 at 5.) The line of case the Court finds more

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persuasive involved similar agreements. See, e.g., United States v. Reyes, 239 F.R.D. 591,

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604 (N.D. Cal. 2006); United States v. Bergonzi, 215 F.R.D. 487, 497 (N.D. Cal. 2003).

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Indeed, even under the agreement belatedly proffered by Church & Dwight the FTC retained

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the right to share the documents with other federal agencies and even state agencies. (Dkt

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No. 153-4.)

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Second, for the reasons stated in the order of November 18, 2011, the Court finds that

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Church & Dwight’s communications with the FTC, whether through outside counsel or

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otherwise, are not protected from discovery as attorney-client privilege, attorney-work

United States District Court
For the Northern District of California

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product, or settlement communications. (Dkt No. 146 at 4-6.) In any event, the Court also

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finds that Church & Dwight has waived all of these privilege objections to production by

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failing to specifically raise the objections in its written discovery response to Request No. 4.

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(Dkt. No. at138 at 19-20.) The boilerplate objections at the beginning of its discovery

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response are insufficient as a matter of Ninth Circuit law. See Burlington N. & Santa Fe Ry.

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Co. v. United States Dist. Ct. of Mont., 408 F.3d 1142, 1149 (9th Cir. 2005). The specific

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objections are not a mere technical requirement; they put the opposing party on notice that

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certain documents are not being produced. Here, Church & Dwight represented that subject

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only to its confidentiality objection based on the FTC regulations it would produce

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documents responsive to the request.1 (Dkt. No. 138 at 20.) Finally, stating that documents

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are confidential because of certain FTC regulations in no way places a party on notice that

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documents are being withheld on attorney work product and privilege grounds.

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Third, the Court finds that Mayer did not orally agree to exclude from its FTC

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document request Church & Dwight’s outside counsel’s communications with the FTC.

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Mayer has offered sworn testimony that no such agreement was reached and the only

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evidence offered by Church & Dwight, a single email, does not contradict Mayer’s evidence.

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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
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request at issue and Church & Dwight’s written response and is therefore not relevant.
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Fourth, Church & Dwight’s assertion that the document request is overbroad is made

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too late. As with privilege, Church & Dwight did not interpose a relevancy or overbreadth

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objection to document Request No. 4. (Dkt. No.138 at 20.) To the contrary, it affirmatively

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represented that subject to and without waiving its confidentiality objection “it will produce

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of copy of documents responsive to this Request.” (Id.) And, as explained above, its

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boilerplate objection is insufficient as a matter of law. See Burlington N. & Santa Fe Ry.

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Co., 408 F.3d at 1149. Again, the objection requirement is not merely technical; without

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such an objection there was no opportunity for a meet and confer as to relevancy in a timely

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manner.

United States District Court
For the Northern District of California

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Finally, the Court notes that Church & Dwight’s supplemental brief assumes that what

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is at issue is what was encompassed by the district court’s October 12, 2011 minute order.

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(Dkt. No. 132.) The Court disagrees. What the Court has--and had--pending before it is

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document Request No. 4 and Church & Dwight’s refusal to produce all documents

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responsive to that request. That request seeks all documents “disclosed” to the FTC, not just

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those documents produced in response to a subpoena. The Court has given Church &

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Dwight ample opportunity to raise every objection it has to production of all of the

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responsive documents and has now resolved all of those objections.

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Accordingly, Church & Dwight shall produce all documents responsive to Mayer’s
document Request No. 4 by Friday, December 9, 2011.
IT IS SO ORDERED.

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Dated: December 8, 2011
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JACQUELINE SCOTT CORLEY
UNITED STATES MAGISTRATE JUDGE

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