Bruton v. Gerber Products Company et al

Filing 139

ORDER by Magistrate Judge Howard R. Lloyd re 138 Discovery Dispute Joint Report No. 1. (hrllc2, COURT STAFF) (Filed on 9/4/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

United States District Court
Northern District of California

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NATALIA BRUTON,

Case No. 5:12-cv-02412 LHK (HRL)

Plaintiff,
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ORDER RE DISCOVERY DISPUTE
JOINT REPORT NO. 1

v.
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GERBER PRODUCTS COMPANY,

[Re: Dkt. 138]

Defendant.
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Plaintiff Natalia Bruton sues Gerber Products Company (Gerber) for alleged deceptive and

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misleading labels on some of defendant’s baby food products. She asserts claims under

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California’s Unfair Competition Law (UCL), Cal. Bus. & Prof. Code § 17200; False Advertising

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Law (FAL), Cal. Bus. & Prof. Code § 17500; and Consumer Legal Remedies Act (CLRA), Cal.

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Civ. Code § 1750, et seq. Judge Koh having denied Bruton’s motion for class certification,

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plaintiff is now pursuing these claims only in her individual capacity. In Discovery Dispute Joint

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Report (DDJR) No. 1, she seeks an order compelling Gerber to produce documents responsive to

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her Requests for Production Nos. 4, 20, and 25, the scope of which she has agreed to narrow in

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certain ways.

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It appears that this matter was not brought to the court’s attention as promptly as required

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by its Standing Order re Civil Discovery Disputes. The opening provision of the Standing Order

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says: “The parties and counsel are cautioned not to allow discovery disagreements to drag on

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unresolved until some important looming deadline forces them into action. Because of the press

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of its other business, the court may not be able to give the dispute its attention with the same

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celerity that some or all of the parties think is necessary.” The parties say that they met and

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conferred several times before and after their February 28, 2014 in-person meeting. Still, the

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instant DDJR was not filed until August 28, 2014, one week after fact discovery closed---i.e., the

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deadline for requesting orders to compel discovery under Civ. L.R. 37-3 and, apparently, also the

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deadline set for the service of opening expert reports. Despite the questionable compliance with

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the undersigned’s Standing Order, this court has endeavored to resolve this matter as quickly as

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circumstances permit. The matter is deemed suitable for determination without oral argument.
Civ. L.R. 7-1(b). For the reasons stated below, plaintiff’s request for an order compelling

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discovery is denied.

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The document requests at issue seek the following information:
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“All documents concerning your decision to place Product Claims

on the labeling of your Misbranded Food Products.”

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Request 4:

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Request 20:

“All documents concerning considerations or deliberations by you to

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alter or remove the Product Claims from the labels of the Purchased Products and

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the Substantially Similar Products.”

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Request 25:

“All documents relating in any way to any internal analyses of your

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Product Claims for compliance with federal (FDCA) and California (Sherman

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Law) regulations.”

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(Dkt. 138-1). Plaintiff agrees to narrow these requests to the two types of Gerber 2nd Foods

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products she actually purchased---Nature Select 2nd Foods and Organic Smart Nourish 2nd

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Foods---in several varieties. She will forego any responsive discovery relating to “Substantially

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Similar Products.” Additionally, the term “Product Claims” is limited to “excellent source,”

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“good source,” “as healthy as fresh,” “no added sugar,” and “no added refined sugar.”

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In essence, plaintiff says that her claims sound in fraud, and this discovery is meant to

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ascertain what defendant knew or should have known about the challenged statements and why its

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labels changed. Gerber contends that its knowledge or intent is entirely irrelevant because intent is
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not a required element for plaintiff’s UCL, FAL, or CLRA claims. Here, defendant argues that the

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only evidence of record establishes that the challenged statements were truthful and not

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misleading. On the instant DDJR, however, the question before this court is not whether plaintiff

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has sufficient evidence to prove her claims, but rather, whether the information she seeks properly

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is discoverable. What this court gleans from the caselaw is that UCL and FAL violations for

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fraudulent business practices are distinct from common law fraud, and generally the focus is on

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whether the public is likely to be deceived by the practice at issue. Kowalsky v. Hewlett-Packard

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Co., 771 F. Supp.2d 1156, 1159 (N.D. Cal. 2011). But, even if a defendant may not have intended

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to deceive consumers, a relevant inquiry under UCL and FAL claims is whether or not defendant

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knew or should have known about facts that rendered its statements misleading or its advertising

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deceptive at the time the statements were made. Id. at 1161-62. And, “[g]enerally, the standard

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for deceptive practices under the fraudulent prong of the UCL applies equally to claims for

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misrepresentation under the CLRA.” Id. at 1162. Thus, this court finds that the requested

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discovery is relevant or reasonably calculated to lead to the discovery of admissible evidence.

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Fed. R. Civ. P. 26(b)(1).

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Gerber nevertheless opposes this discovery on the ground that the burden and expense of

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the requested discovery outweighs its likely benefit. Alternatively, defendant argues that plaintiff

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should bear the entire cost of any production that might be ordered. On motion or on its own, the

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court must limit the extent of discovery if it determines that (a) the discovery sought is

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unreasonably cumulative or duplicative or can be obtained from a source that is more convenient,

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less burdensome or less expensive, (b) the party seeking discovery has had ample opportunity to

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obtain the information through discovery; or (c) the burden or expense of the discovery sought

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outweighs its likely benefit, considering the needs of the case, the amount in controversy, the

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parties’ resources, the importance of the issues at stake, and the importance of the discovery in

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resolving those issues. Fed. R. Civ. P. 26(b)(2)(C)(i)-(iii).

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Plaintiff says that Gerber has substantial resources. However, there is no dispute that that

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any compensatory damages Bruton might recover are low. Indeed, in Gerber’s view, any damages

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to which plaintiff might be entitled would amount, at most, to a few cents per product, for a grand
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total of less than one dollar. To the extent Bruton has a basis for refuting that assertion, she has

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not provided an explanation in the instant DDJR.

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As for injunctive relief, Gerber argues that the needs of the case and the importance of the
discovery in resolving the issues are simply not worth the expense of producing responsive

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documents. Here, Gerber contends that plaintiff, in her individual capacity, is not entitled to seek

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injunctive relief under the UCL or FAL, noting that courts have dismissed or stricken such claims

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“because plaintiffs could not obtain injunctive relief under the UCL without satisfying class action

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requirements.” (Dkt. 138 at 10). Defendant, however, mischaracterizes its cited cases, which are

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inapposite in any event. See Friedman v. 24 Hour Fitness USA, Inc., 580 F. Supp.2d 985 (C.D.

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Cal. 2008); Clark v. LG Elecs. U.S.A., Inc., No. 13-cv-485 JM (JMA), 2013 WL 5816410 (S.D.

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Cal., Oct. 29, 2013). Friedman and Clark concerned putative class action plaintiffs who wanted to

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pursue representative actions, but improperly pled that they sought injunctive relief “on behalf of

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the general public” (i.e., something that can only be done by the Attorney General or other public

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authority). The plaintiffs were permitted to proceed with representative claims subject to class

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action pleading requirements. Further, Clark observed that the plaintiff properly could pursue her

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claims individually, as well as on behalf of the identified classes. 2013 WL 5816410 at *4. With

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respect to the CLRA, Gerber acknowledges that an individual plaintiff may be entitled to

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injunctive relief, but contends that Bruton’s claim is frivolous. Here, defendant argues that the

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evidence conclusively establishes that Gerber never made any misrepresentations whatsoever. On

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the record presented, however, this court is in no position to assess the evidence (whatever that

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might be). And, in any event, as discussed above, the only issue this court addresses here is

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whether Gerber properly should be compelled to produce the requested discovery.

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Gerber nevertheless says that Bruton testified that she stopped purchasing Gerber’s

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products and that her child no longer consumes baby food. Additionally, defendant says that it

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stopped using the challenged statements on the products at issue about two years ago. Plaintiff

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does not refute these assertions, but maintains that they do not preclude her from seeking an

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injunction. She claims that defendant continues to use (alleged) deceptive statements generally,

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but otherwise says only that an injunction is important because Gerber might “resurrect” its
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alleged deceptive labeling at some point in the future. (Dkt. 138 at 4). It is not for this court to

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determine the propriety of any injunctive relief plaintiff seeks. But, for purposes of resolving the

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instant discovery dispute, Gerber’s unrefuted assertions undercut plaintiff’s arguments as to the

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importance of the issues at stake in the case and the importance of the discovery in resolving the

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issues.

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Additionally, Gerber says that it has produced more than just outward facing labels in

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discovery. This court is told that Bruton deposed Cheryl Callen, Gerber’s Director of Regulatory

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Affairs and its Fed. R. Civ. P. 30(b)(6) designee, on topics including defendant’s policies,

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procedures, and practices for creating labels and ensuring that they comply with California and
federal food labeling regulations. (There is no indication on the record presented that Callen was

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an inadequate witness or that her testimony was evasive.) Gerber says it has also presented a

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declaration from one of its Marketing Directors, Kelly Greenberg, addressing defendant’s

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marketing and labeling practices and procedures (Dkt. 87). Plaintiff nonetheless maintains that

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defendant has refused to produce any documents, except those that consumers might have seen,

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such as labels. But, if indeed the requested documents are “critical to resolving the issues in this

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case,” as plaintiff claims (Dkt. 138 at 4), then this court wonders why this DDJR was presented

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after fact discovery closed, on the very last day to seek to compel discovery, and on the same day

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that opening expert reports were due.

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While Gerber has not substantiated its claim that producing the requested documents will

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cost “hundreds of thousands more than the amount Plaintiff can recover in this case,” (Dkt. 138 at

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9), on the record presented, it seems likely that the associated expense might exceed the very

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modest sum this court is told plaintiff might recoup. As discussed above, plaintiff agreed to

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narrow the discovery in certain respects. Even so, the requests, as drafted, are still quite broad,

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seeking “[a]ll documents” “concerning” or “relating in any way” to the subject matter of the

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requests. And, defendant says (and plaintiff does not deny) that it asked plaintiff to identify

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particular types of documents she is interested in, but plaintiff refused to do so.

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Under the circumstances presented here, this court finds that the burden or expense of the
requested discovery outweighs its likely benefit, and plaintiff’s request for an order compelling
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production is denied.
SO ORDERED.
Dated: September 4, 2014
______________________________________
HOWARD R. LLOYD
UNITED STATES MAGISTRATE JUDGE

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United States District Court
Northern District of California

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5:12-cv-02412-LHK Notice has been electronically mailed to:

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

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Brian K Herrington

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Bryan Alexander Merryman [e-mail], [e-mail],
[e-mail], [e-mail]

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David Shelton

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Rachel J Feldman

[e-mail], [e-mail]

[e-mail]
[e-mail]

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United States District Court
Northern District of California

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