Werdebaugh-v-Blue Diamond Growers

Filing 148

ORDER by Magistrate Judge Howard R. Lloyd re 147 Discovery Dispute Joint Report No. 3. (hrllc2, COURT STAFF) (Filed on 8/14/2014)

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1 2 3 4 5 6 7 NOT FOR CITATION 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION United States District Court Northern District of California 11 CHRIS WERDEBAUGH, individually and on behalf of all others similarly situated, 12 Plaintiff, 13 Case No. 5:12-CV-02724 LHK (HRL) ORDER RE DISCOVERY DISPUTE JOINT REPORT NO. 3 v. 14 15 BLUE DIAMOND GROWERS, [Re: Dkt. 147] Defendant. 16 17 This is an action for alleged food mislabeling in which plaintiff sues for himself and on 18 behalf of a certified class of “[a]ll persons in California who, from May 19, 2008, until the date of 19 notice, purchased almond milk products manufactured, distributed and/or sold by Blue Diamond 20 Growers containing the label statements ‘evaporated cane juice’ and/or ‘All Natural.’” (Dkt. 131 21 at 48). Plaintiff requested discovery of certain labeling and financial information that he says is 22 relevant to damages---namely, label changes, wholesale sales, advertising expenditures, and 23 promotional expenditures. 1 There is no dispute as to discovery falling within the class period, 24 which defendant says it either will produce or has already produced. The sole issue presented in 25 Discovery Dispute Joint Report (DDJR) No. 3 is whether defendant should be compelled to 26 produce this information for the four years pre-dating the class period, i.e., dating from May 29, 27 1 28 Plaintiff identifies the pertinent requests as follows: Requests for Production, Set 1 (Requests 16-17, Dkt. 137, Ex. 1) and Requests for Production, Set 2 (Requests 2-5, 14-17, Dkt. 143, Ex. 1) 1 2004. The matter is deemed suitable for determination without oral argument. Civ. L.R. 7-1(b). 2 Upon consideration of the parties’ respective arguments, this court grants plaintiff’s request for an 3 order compelling this discovery. 2 4 With respect to the requested labeling change information, defendant says that it has 5 already produced all documents showing any and all labeling changes made during the class 6 period, i.e., all of the “final labels” for the challenged products during the class period. It points 7 out that “each of these labels is dated to show when the packaging was finalized.” (Dkt. 147 at 8). 8 Thus, defendant says, plaintiff has information showing any and all label changes that were made 9 during the class period. It contends that discovery about labels no class member ever saw and about financial information outside the class period are irrelevant. Additionally, defendant says 11 United States District Court Northern District of California 10 that providing the requested financial data would require looking through archived records which 12 may or may not contain the information plaintiff wants. 13 What is not clear to this court is whether defendant has produced information 14 demonstrating when the challenged terms were first placed on the product labels. This is the 15 information that plaintiff apparently seeks, as well as the date the terms no longer appeared on the 16 labels (assuming the terms are no longer used) and the requested financial information for several 17 years before and after the challenged terms appeared on the labels. This information appears to 18 track the data that plaintiff’s expert, Dr. Capps, outlined in a declaration submitted in support of 19 plaintiff’s class certification motion and averred he needed in order to perform his proposed 20 regression analysis to calculate claimed damages. (Dkt. 77-4 ¶ 19). As this court understands it, 21 and in grossly overbroad terms, Dr. Capps’ regression analysis will require examination of a 22 2 23 24 25 26 27 28 Strictly speaking, it appears that the parties did not comply with the undersigned’s Standing Order re Civil Discovery Disputes in bringing DDJR No. 3; and tellingly, they do not certify their compliance as required by the Standing Order. Specifically, the parties apparently did not have an in-person meet-and-confer. DDJR No. 3 identifies two dates on which the parties reportedly met in person. But defendant disputes that, saying that those were dates the parties participated in mediation and that there were no substantive discussions about discovery during those sessions. And, indeed, those are the same two dates identified on DDJR No. 2, which this court denied without prejudice because of plaintiff’s lackluster meet-and-confer efforts. Ordinarily, this court would have summarily terminated DDJR No. 3. This court nevertheless has addressed the merits of the issue presented, however, because the parties filed DDJR No. 3 on August 8, 2014 (the last possible day to bring discovery disputes before the court under Civ. L.R. 37-3), and this court is told that the discovery is needed in connection with expert reports due on August 15. 2 1 number of factors over time, both before and after the challenged terms were placed on labels. 2 Thus, plaintiff argues that ideally, he’d like information as to whether any (alleged) misbranding 3 occurred since product inception. But, at a minimum, he needs information dating from at least 4 May 29, 2004. In certifying a California class, Judge Koh concluded that Dr. Capp’s proposed 5 regression analysis is a workable model of calculating damages tied to plaintiff’s theory of 6 liability. (Dkt. 131 at 46). Thus, under the particular circumstances presented in this case, this 7 court finds that the requested information is relevant or reasonably calculated to lead to the 8 discovery of admissible evidence and that plaintiff’s need for the information outweighs the 9 burden that might be imposed. 10 Defendant correctly notes that in a different case, this court (1) concluded that labels pre- United States District Court Northern District of California 11 dating the class period are irrelevant and (2) made no ruling that the plaintiff in that case was 12 entitled to financial information pre-dating the class period. See Brazil v. Dole Packaged Foods, 13 LLC, No. 5:12-cv-01831-LHK (HRL) (N.D. Cal., Apr. 1, 2014) (Dkt. 123). Brazil, however, 14 concerned pre-certification discovery, and there was no indication that the presiding judge had 15 passed upon the propriety of any particular damages model at the time this court issued the 16 discovery ruling in question. That is not the case here. Nor is defendant aided by its citation to 17 Ogden v. Bumble Bee Foods, LLC, 292 F.R.D. 620 (N.D. Cal. 2013). That case concerned a 18 dispute over the propriety of discovery beyond the applicable statute of limitations, and this court 19 does not find it helpful to the resolution of that issue presented here. 20 21 Based on the foregoing, plaintiff’s request for an order compelling the subject discovery is granted. Defendant shall produce the requested discovery forthwith. 22 SO ORDERED. 23 Dated: August 14, 2014 24 25 ______________________________________ HOWARD R. LLOYD UNITED STATES MAGISTRATE JUDGE 26 27 28 3 1 2 5:12-cv-02724-LHK Notice has been electronically mailed to: Ben F. Pierce Gore pgore@prattattorneys.com, cotto@prattattorneys.com, dawn@cfbfirm.com, ntmaddux@barrettlawgroup.com, PTaylor@barrettlawgroup.com, rtrazo@prattattorneys.com 3 Brian K Herrington bherrington@barrettlawgroup.com, bherrington@pacernotice.com 4 5 6 Chant Yedalian chant@chant.mobi, chantyed@aol.com, chantyed@gmail.com Colin Harvey Dunn chd@cliffordlaw.com, docket@cliffordlaw.com, jg@cliffordlaw.com, jmg@cliffordlaw.com, ksr@cliffordlaw.com 7 Dewitt Marshall Lovelace , Sr courtdocs@lovelacelaw.com Gary McKay Yarborough , Jr ylf.garyyarborough@att.net 8 9 10 Geoffrey R. Pittman gpittman@hansonbridgett.com, calendarclerk@hansonbridgett.com, ypete@hansonbridgett.com United States District Court Northern District of California 11 12 13 14 Lawrence M. Cirelli lcirelli@hansonbridgett.com, calendarclerk@hansonbridgett.com, rcarrillo@hansonbridgett.com Megan Oliver-Thompson moliverthompson@hansonbridgett.com, calendarclerk@hansonbridgett.com, nward@hansonbridgett.com 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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