Brazil v. Dole Food Company, Inc. et al

Filing 123

ORDER re #113 Discovery Dispute Joint Report No.1. Signed by Magistrate Judge Howard R. Lloyd on 4/1/2014. (hrllc1, COURT STAFF) (Filed on 4/1/2014)

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*E-Filed: April 1, 2014*

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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For the Northern District of California

NOT FOR CITATION

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United States District Court

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SAN JOSE DIVISION

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CHAD BRAZIL, individually and on behalf
of all others similarly situated,

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No. C12-01831 LHK (HRL)
ORDER ON DDJR #1

Plaintiff,
v.

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[Re: Docket No. 113]

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DOLE PACKAGED FOODS, LLC,

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Defendant.
____________________________________/

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Chad Brazil, on behalf of a putative class, sues Dole Packaged Foods, LLC (“Dole”) for
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allegedly misbranding several of its food products. The hearing on Brazil’s motion for class
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certification is currently set for April 17, 2014. Opening expert reports are due by June 13, 2014,
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and the fact and expert discovery cutoff is July 10, 2014. In the parties’ Discovery Dispute Joint
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Report No. 1 (“DDJR #1”), the Court is asked to determine (1) whether Dole should produce
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“financial” data related to damages prior to class certification; and (2) whether Dole should produce
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product labels that pre-date the asserted class period.
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At the outset, the Court notes that DDJR #1 does not contain attestations of lead counsel that
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they complied with the undersigned’s Standing Order re: Civil Discovery Disputes (“Standing
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Order”), as it requires, and it is unclear whether they did otherwise comply by holding an in-person
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meet and confer.1 Nevertheless, the Court will address the issues presented on their merits, but the

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The cover page identifies March 5, 2014, as the “Date of In-Person Meeting.” However, it then
provides that the “parties spoke by telephone and resolved some issues but not others,” which

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parties are admonished that any future DDJRs that do not strictly comply with the “Standing Order”

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will not be heard.
First, Brazil seeks financial information, such as sales and revenue data, relevant to the issue

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of damages. Brazil wants the information as soon as possible to ensure that its damages expert has

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sufficient time to analyze the data and produce a report before the June deadline. Moreover, Dole

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concedes the relevance of the information and has no justification for withholding it “aside from it

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does not want to at this point.” According to Dole, the “issue is timing.” The production of

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financial data is premature because the information pertains solely to damages, which is irrelevant to

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class certification. Nevertheless, Dole offered to produce the financial information after the April

For the Northern District of California

United States District Court

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17, 2014 hearing, which it contends would provide Brazil with adequate time.

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It is undisputed that the requested financial information is relevant to the ultimate issue of

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damages. Moreover, Brazil has demonstrated a need for this information sooner rather than later,

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while Dole has not even suggested that producing the information would be burdensome. Thus, the

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Court sees no reason for delay, and Dole shall produce responsive financial data and documents

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within five (5) days from the date of this order.

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Second, Brazil requests the labels from 2004 to 2007 for the products listed in its motion for

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class certification. Brazil asserts that these labels are relevant to damages, as well as Dole’s state of

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mind and corporate practice. On the other hand, Dole points out that these labels predate Brazil’s

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definition of class period, which begins in April 2013. Thus, they are irrelevant to the damages

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calculation, which can only be based on sales within the class period. Similarly, the labels from

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outside the class period are irrelevant to Dole’s state of mind and corporate practice during the class

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period. Furthermore, the production of old labels would be burdensome, as Dole does not maintain

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a central depository of retired product labels. Locating them would require “new custodial

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collections and searches of ancient email archives,” which is not even guaranteed to uncover the old

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labels.

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“Parties may obtain discovery regarding any nonprivileged matter that is relevant to any
party’s claim or defense. . . . For good cause, the court may order discovery of any matter relevant to
suggests that the “in-person meeting” was just a phone conversation. Additionally, among other
oversights, the parties also failed to include their “most reasonable” proposals.
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the subject matter involved in the action. Relevant information need not be admissible at the trial if

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the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Fed.

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R. Civ. P. 26(b)(1). “It is also beyond dispute that discovery is not limited to the class period.” In

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re Toyota Motor Corp. Sec. Litig., No. CV 10-922 DSF (AJWx), 2012 WL 3791716, at *5 (C.D.

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Cal. March 12, 2012).

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At first glance, it seems reasonable that product labels from 2004 to 2007 might be relevant

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in discovery for claims based on the same products’ labels from 2008 and beyond. Yet, even given

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the relatively low threshold for relevance at the discovery stage, Brazil fails to make an adequate

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showing. His assertions that the labels are relevant to damages, state of mind and corporate practice

For the Northern District of California

United States District Court

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are entirely conclusory as they are not supported by any explanation, and the relevance is not so

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apparent that none is needed. Moreover, the Court agrees with Dole that labels that predate the class

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period are not relevant to the issue of damages. Accordingly, in view of Brazil’s failure to

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demonstrate any relevance and Dole’s showing of at least some minimal burden, Dole is not

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required to produce the requested products labels from 2004 to 2007.

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IT IS SO ORDERED.
Dated: April 1, 2014
HOWARD R. LLOYD
UNITED STATES MAGISTRATE JUDGE

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C12-01831 Notice will be electronically mailed to:

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Ananda N. Chaudhuri

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Ben F. Pierce Gore [e-mail], [e-mail], [e-mail],
[e-mail], [e-mail], [e-mail]

[e-mail]

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Brian K Herrington

[e-mail], [e-mail]

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Carol Nelkin

[e-mail], [e-mail]

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Charles F. Barrett

[e-mail], [e-mail]

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Claudia Maria Vetesi

[e-mail], [e-mail]

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David Shelton

[e-mail]

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For the Northern District of California

United States District Court

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David Malcolm McMullan , Jr [e-mail],
[e-mail], [e-mail]

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Dewitt Marshall Lovelace , Sr

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J. Price Coleman

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Jay P. Nelkin

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Keith M. Fleischman

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Richard Barrett

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Stuart M Nelkin

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William Francis Tarantino

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William Lewis Stern [e-mail], [e-mail], [e-mail],
[e-mail], [e-mail]

[e-mail]

[e-mail]

[e-mail]
[e-mail]

[e-mail]
[e-mail], [e-mail]
[e-mail]

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Counsel are responsible for distributing copies of this document to co-counsel who have not
registered for e-filing under the court’s CM/ECF program.

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