Hohenberg v. Ferrero USA, Inc

Filing 22

RESPONSE in Opposition re 21 Ex Parte MOTION for Extension of Time to File Answer filed by Athena Hohenberg, Laura Rude-Barbato. (Attachments: # 1 Declaration of Jack Fitzgerald in Opposition to Ferrero's Ex Parte Application to Stay Proceedings Indefinitely)(Fitzgerald, John) (ag).

Hohenberg v. Ferrero USA, Inc

Doc. 22 Att. 1

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LAW OFFICES OF RONALD A. MARRON, APLC RONALD A. MARRON (175650) 3636 4th Avenue, Suite 202 San Diego, California 92103 Telephone: [phone] Facsimile: [phone] [e-mail] THE WESTON FIRM GREGORY S. WESTON (239944) JACK FITZGERALD (257370) 888 Turquoise Street San Diego, CA 92109 Telephone: [phone] Facsimile: [phone] [e-mail] [e-mail] INTERIM CLASS COUNSEL UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA IN RE: NUTELLA DECEPTIVE SALES PRACTICES & MARKETING LITIGATION _______________________________________ ATHENA HOHENBERG & LAURA RUDEBARBATO, individually and on behalf of all others similarly situated, Plaintiffs, v. FERRERO U.S.A, INC., a foreign corporation, Defendant. Date: N/A Time: N/A DECLARATION OF JACK FITZGERALD IN OPPOSITION TO FERRERO'S EX PARTE MOTION FOR POSTPONEMENT AND DISCOVERY STAY

CASE NO. 3:11-CV-00205-H-CAB JUDGE: Hon. Marilyn L. Huff

1 DECLARATION OF JACK FITZGERALD IN OPPOSITION TO FERRERO'S EX PARTE MOTION FOR POSTPONEMENT AND DISCOVERY STAY
Dockets.Justia.com

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I, Jack Fitzgerald, declare as follows: 1. I am an attorney admitted to practice law in the State of California and before this

Court. I make this Declaration in support of Plaintiffs' Opposition to Ferrero's Ex Parte Motion for Postponement and Stay (Dkt. No. 21). 2. Attached hereto as Exhibit A is a true and correct copy of the Consent Order entered in

Glover v. Ferrero (D.N.J.) obligating Ferrero to respond to the Glover Complaint on or before April 25, 2011. As of the date of this filing, Ferrero has not moved for any further delay, extension, stay or continuance in Glover. 3. Attached hereto as Exhibit B is a true and correct copy of a March 25, 2011 Consent

Order Granting Admission Pro Hac Vice of Ferrero's California attorneys in the New Jersey Glover action (Glover Dkt. No. 9). 4. Discovery is well under way in this action. The Federal Rules provide that "parties

must confer as soon as practicable . . . ." Fed. R. Civ. P. 26(f). In light of this mandate, on March 16, Interim Class Counsel requested a Rule 26(f) conference with Ferrero. 5. Ferrero responded the next day saying, "We're happy to discuss the case anytime. . . .

As for a Rule 26(f) conference, it strikes us that we should first resolve issues of venue, consolidation and lead plaintiff--in part so that we could have such discussions with whomever the court appoints." (Emphasis added.) Despite the observation, counsel finished the email saying, "feel free to contact [us] if you'd like to discuss the case." 6. The following day, the parties had a telephone conversation discussing discovery in the

case, and particularly the topics prescribed in Rule 26, including a discovery plan and protective order. Nevertheless, after the conversation, Ferrero sent an email disputing that a Rule 26(f) conference had occurred. Despite the apparent disagreement, on March 18, Plaintiffs sent a draft Rule 26(f) report to Ferrero asking for comments or revisions by March 22, and also sent initial disclosures pursuant to Rule 26(A)(1) (Ferrero has not served its initial disclosures). Ferrero did not immediately respond. The Court then ordered the Hohenberg and Rude-Barbato cases consolidated and appointed their counsel Interim Class Counsel on March 22, at 3:39 p.m. Twenty five minutes later, Ferrero emailed, saying Plaintiffs did not have authorization to file the Rule 26(f) report jointly. Interim 2 DECLARATION OF JACK FITZGERALD IN OPPOSITION TO FERRERO'S EX PARTE MOTION FOR POSTPONEMENT AND DISCOVERY STAY

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Counsel responded, pointing out that the cases have been consolidated and interim counsel appointed, and that the law requires timely conference, and therefore asking Ferrero to reconsider its refusal to file a joint Rule 26(f) report. In response, Ferrero noted its disagreement, but stated: We have your draft Rule 26 statement and can prepare inserts to reflect our positions. We can send that to you early next week, in plenty of time to file within the 14 days allowed after a Rule 26 conference (assuming, while we disagree, that such a conference took place last Friday). We are willing to proceed that way. (Emphasis added.) 7. In light of Ferrero's concession and its agreement to provide venue-related discovery,

on March 23, Plaintiffs served Ferrero, pursuant and subject to the Federal Rules, with its First Requests for Production, First Interrogatories, and a Rule 30(b)(6) notice, and the parties set up a meet-and-confer conference call for the following Monday, March 28. On that call, the parties went through each of Plaintiffs' requests, addressing any objections Ferrero had, and narrowing the topics in a mutually agreeable way. Ferrero also pressed Plaintiffs to take the Rule 30(b)(6) deposition the week of April 11, stating that it would make its full production responsive to the requests so that Plaintiffs would have at least a week to review the production before taking the 30(b)(6) deposition. Despite its agreement to proceed with discovery, and its earlier representation that it was willing to proceed in the manner it suggested, to which Plaintiffs agreed, during the meet and confer call, Ferrero again refused to review the joint Rule 26(f) report or provide comments or inserts, instead advising Plaintiffs it intended to file the ex parte motion unless they agreed to Ferrero's request for an indefinite stay of this action. 8. Following the call, the parties exchanged several emails crystalizing and promising to

consider their respective positions. Although Plaintiffs could not agree to an indefinite stay, in the spirit of compromise, they suggested a further three-week extension. Ferrero declined the offer, asking whether Plaintiffs would agree to an indefinite discovery stay, as well. Again, Plaintiffs could not agree, but did clarify that they would be willing to await further substantive discovery while Ferrero's motion to dismiss is pending, so long as Ferrero did not attempt to stay the action indefinitely. This, too, Ferrero refused.

3 DECLARATION OF JACK FITZGERALD IN OPPOSITION TO FERRERO'S EX PARTE MOTION FOR POSTPONEMENT AND DISCOVERY STAY

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9.

In addition to this motion, the parties discussed the discovery Ferrero had agreed to

provide, with Ferrero serving its formal responses and objections to the 30(b)(6) notice, and the parties ultimately agreeing to an April 14 date for that deposition. 10. Attached hereto as Exhibit C is a true and correct copy of the email chain referenced in

paragraphs 4-7 above, by and among counsel for Plaintiffs and counsel for Ferrero, dated March 16, 2011 through March 24, 2011, titled "Re: Rule 26(f) conference." This email chain evinces the difficulty Plaintiffs have had in obtaining Ferrero's cooperation in even the most basic discovery obligations, i.e., Rule 26(f) meeting and reporting. 11. Attached hereto as Exhibit D are true and correct copies of the discovery requests

Plaintiffs served on Ferrero on March 23, 2011, referenced in paragraph 7 above. These requests seek comprehensive discovery related to the venue issues raised by Ferrero's transfer motion. 12. Attached hereto as Exhibit E is a true and correct copy of an email chain by and

among counsel for Plaintiffs and counsel for Ferrero, dated March 29, 2011, "RE: In re Nutella ­ Ferrero's Request for Additional Extension," referenced in paragraph 8 above. This email chain discusses the subject matter of Ferrero's instant ex parte motion. 13. Attached hereto as Exhibit F is a true and correct copy of an email chain by and

among counsel for Plaintiffs and counsel for Ferrero, dated March 29, 2011 through March 30, 2011, "RE: In Re Nutella ­ 30(b)(6) Deposition Logistics," referenced in paragraph 8 above. This email chain discusses the discovery the parties are currently coordinating. 14. On March 29, 2011, Plaintiffs served a third-party deposition and document subpoena

on Connie L. Evers. A true and correct copy of that subpoena (which was served along with a copy of the Master Consolidated Complaint) is attached hereto as Exhibit G. Ms. Evers is the key third-party witness in this action, as many of Ferrero's false statements and deceptive advertisements cite or are sourced from Ms. Evers. Executed on March 30, 2011, in Santa Clara, California. /s/ Jack Fitzgerald Jack Fitzgerald 4 DECLARATION OF JACK FITZGERALD IN OPPOSITION TO FERRERO'S EX PARTE MOTION FOR POSTPONEMENT AND DISCOVERY STAY

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Dated this 30th day of March, 2011

Respectfully submitted, By: /s/ Jack Fitzgerald Jack Fitzgerald Gregory S. Weston THE WESTON FIRM Ronald A. Marron LAW OFFICES OF RONALD A. MARRON, APLC INTERIM CLASS COUNSEL

5 DECLARATION OF JACK FITZGERALD IN OPPOSITION TO FERRERO'S EX PARTE MOTION FOR POSTPONEMENT AND DISCOVERY STAY

Exhibit A

Case 3:11-cv-01086-FLW -DEA Document 7

Filed 03/21/11 Page 1 of 3 PageID: 34

Case 3:11-cv-01086-FLW -DEA Document 7

Filed 03/21/11 Page 2 of 3 PageID: 35

Case 3:11-cv-01086-FLW -DEA Document 7

Filed 03/21/11 Page 3 of 3 PageID: 36

Exhibit B

Case 3:11-cv-01086-FLW -DEA Document 9

Filed 03/25/11 Page 1 of 3 PageID: 49

Case 3:11-cv-01086-FLW -DEA Document 9

Filed 03/25/11 Page 2 of 3 PageID: 50

Case 3:11-cv-01086-FLW -DEA Document 9

Filed 03/25/11 Page 3 of 3 PageID: 51

Exhibit C

Jack Fitzgerald
From: Sent: To: Cc: Subject: ronald marron <[e-mail]> Thursday, March 24, 2011 9:55 AM Bish, Dale Gregory S. Weston; Bal, Colleen; Eggleton, Keith; Jack Fitzgerald Re: Rule 26(f) conference

Dale, Thanks for your willingness to compromise. We'll look forward to receiving Defendant's revised draft of the 26(f) report early next week. If it's your intention to file a Motion to Transfer this week, I think what makes sense is for us to review the motion over the weekend, which will give you a chance to review the venue discovery we served today, and let's plan to have a conference call on Monday or Tuesday to discuss how we'll proceed with discovery. Thank you again for your cooperation. Ron

Ronald A. Marron, Esq. Law Offices of Ronald A. Marron, APLC 3636 Fourth Avenue, Suite 202 San Diego, CA 92103 Tel: [phone] Fax: [phone] On Wed, Mar 23, 2011 at 9:47 AM, Bish, Dale <[e-mail]> wrote:
Counsel, We have your emails. I don't believe our call on Friday was a Rule 26 conference nor do I believe we have refused to have one. As we have said, we think the orderly conduct of these matters would have Rule 26 proceedings take place after the respective courts decide how and where these cases will proceed. We are filing a motion to transfer this week and will be available to discuss whether you think discovery is needed after you have had a chance to consider our papers. Again, I did not refuse discovery on that topic but suggested that plaintiffs send us an email regarding the venue topics that you'd like discovery on. Also, in the event the cases are not transferred, we will file for MDL treatment. That all said, we get the point that you disagree and want to proceed with Rule 26 proceedings now. We have your draft Rule 26 statement and can prepare inserts to reflect our positions. We can send that to you early next week, in plenty of time to file within the 14 days allowed after a Rule 26 conference (assuming, while we disagree, that such a conference took place last Friday). We are willing to proceed that way. Alternatively, we can set a conference call for Thursday or Friday of this week and subsequently put in a statement with the Court.
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In any event, we should discuss scheduling in light of the amended complaint you will be filing. Let us know how you would like to proceed.

Dale

From: Gregory S. Weston [mailto:[e-mail]] Sent: Tuesday, March 22, 2011 5:58 PM To: 'ronald marron'; Bish, Dale Cc: Bal, Colleen; Eggleton, Keith; Jack Fitzgerald

Subject: RE: Rule 26(f) conference

Dear Counsel,

I agree with Ron's analysis below. FRCP 26(f)(1) directs that "the parties must confer as soon as practicable."

Ferraro USA, in clear violation of its duties under FRCP 26, appears to be refusing to so confer.

If I am incorrect about this, please provide a time in the next two days when we can confer as required and as Plaintiffs' counsel has been requesting repeatedly for the past week. If Ferraro is indeed refusing to confer until its unfiled transfer motion is decided, please state so explicitly.

If it is Ferraro's position is that it is exempt from the requirements of Rule 26 because it will soon file a motion to transfer venue, it is wrong. See Metcalfe v. Renaissance Marine, Inc., 566 F.3d 324, 336 (3d Cir. 2009) ("The Supreme Court instructs that `where issues arise as to jurisdiction or venue, discovery is available to ascertain the facts bearing on such issues.'")(quoting Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 n.13 (1978)). Indeed, such discovery is "particularly appropriate where the defendant is a corporation." Metcalfe, 566 F.3d at 336. See also Jenkins v. Smead Mfg. Co., 2009 U.S. Dist. LEXIS 101545 at *5 (S.D. Cal. Oct. 28, 2009) (plaintiffs granted "limited expedited discovery to address the [motion to transfer] venue")(Gonzalez, C.J.).

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Sincerely, Greg Weston

THE WESTON FIRM GREGORY S. WESTON 888 Turquoise St San Diego, CA 92109 858.488.1672 (Phone) | 480.247.4553 (Fax) [e-mail] | WWW.WESTONFIRM.COM

From: ronald marron [mailto:[e-mail]] Sent: Tuesday, March 22, 2011 4:20 PM To: Bish, Dale Cc: Bal, Colleen; Eggleton, Keith Subject: Re: Rule 26(f) conference

Dear Mr. Bish, The Hohenberg and Rude-Barbato cases have been consolidated, and my office has been appointed Interim CoLead Counsel. Moreover, there is no Motion to Transfer pending. Therefore, I don't think it is a stretch to consider your position as unreasonable and dilatory. Please reconsider your position, I will wait until tomorrow 12 noon to hear back from you and then we will file our Rule 26(f) Report. We can indicate that you did not join in the filing and let the Court consider the matter. Thank you.

Regards,
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Ron

Ronald A. Marron, Esq. Law Offices of Ronald A. Marron, APLC 3636 Fourth Avenue, Suite 202 San Diego, CA 92103 Tel: [phone] Fax: [phone] On Tue, Mar 22, 2011 at 4:04 PM, Bish, Dale <[e-mail]> wrote: Ron,

To be clear, you do not have my authorization to file this, or any other, purported joint submission with the Court in light of our objections to the "conference" last week. We believe the transfer and consolidation issues need to be resolved first and will be in touch regarding timing.

Dale

From: ronald marron [mailto:[e-mail]] Sent: Friday, March 18, 2011 4:00 PM To: Bish, Dale Cc: Bal, Colleen; Eggleton, Keith

Subject: Re: Rule 26(f) conference

As promised, please find the initial draft of the Joint Rule 26(f) Report.

Please provide any suggested edits by close of business on March 22. Also, if there is a protective order you would like Plaintiffs to consider, please forward for our consideration. Thank you for your consideration and cooperation. Ron
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Ronald A. Marron, Esq. Law Offices of Ronald A. Marron, APLC 3636 Fourth Avenue, Suite 202 San Diego, CA 92103 Tel: [phone] Fax: [phone] On Fri, Mar 18, 2011 at 12:05 PM, Bish, Dale <[e-mail]> wrote:
Ron, I write regarding our phone conversation this morning. As you know, you had requested a Rule 26(f) conference earlier this week. In my email yesterday (below), I made clear our position that any such conference should await appoint of lead plaintiff in the pending cases but would be happy to have a general discussion about the case at any time. This morning you called me on my cell phone and asked if I had a minute to discuss the case. I explained I was out of the office and traveling but could have a brief discussion. You stated you'd like to take limited discovery regarding venue. I explained the facts regarding venue are fairly straightforward -- as alleged in your complaint, the company is located in New Jersey -- but you would consider an informal email with the topics that you'd like discovery on. I expressly said that formal discovery requests would be premature. You next asked whether we could postpone our venue discussions until Judge Huff rules on your motion to be appointed lead plaintiff on March 28; I explained again we don't take a position on lead plaintiff issues but that it seems venue and consolidation should be decided first. You also raised the issue of settlement -- i.e., whether we would like to have such discussions before or after a motion to dismiss is resolved. I said we'd be happy to consider any ideas you have for settling the case but that we didn't have a position yet, in part because of the number of parties involved. At the conclusion of our call you stated that our conversation satisfied the Rule 26(f) conference requirements. You had not previously mentioned Rule 26(f) in our call. I disagreed, explained again that any such conference should occur after appointment of a lead plaintiff and, had you taken that position at the outset of our call, I would have not continued with the call for the reasons set forth above among others.

Since I am out of the office, please call Colleen if you need to discuss the case today.

Dale

From: Bish, Dale Sent: Thursday, March 17, 2011 4:23 PM To: ronald marron Cc: Bal, Colleen Subject: RE: Rule 26(f) conference

Ron,

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We're happy to discuss the case anytime. I believe you were going to reach out to the other plaintiffs who have filed in New Jersey and get back to us on whether you would voluntarily move your cases to New Jersey. As for a Rule 26(f) conference, it strikes us that we should first resolve issues of venue, consolidation and lead plaintiff ­ in part so that we could have such discussions with whomever the court appoints.

I'll be out of the office tomorrow, but feel free to contact Colleen if you'd like to discuss the case.

Dale

From: ronald marron [mailto:[e-mail]] Sent: Wednesday, March 16, 2011 10:09 AM To: Bish, Dale Subject: Rule 26(f) conference

Dale,

Are you available today to discuss the case, we need to have a Rule 26(f) conference soon.

Thanks.

Ron

Ronald A. Marron, Esq. Law Offices of Ronald A. Marron, APLC 3636 Fourth Avenue, Suite 202 San Diego, CA 92103 Tel: [phone] Fax: [phone] This email and any attachments thereto may contain private, confidential, and privileged material for the sole use of the intended recipient. Any
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review, copying, or distribution of this email (or any attachments thereto) by others is strictly prohibited. If you are not the intended recipient, please contact the sender immediately and permanently delete the original and any copies of this email and any attachments thereto.

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Exhibit D

T H E

W E S T O N

F I R M

888 Turquoise Street | San Diego, CA 92109 2811 Sykes Court | Santa Clara, CA 95051 SAN DIEGO OFFICE TEL: [phone] FAX: [phone] SANTA CLARA OFFICE TEL: [phone] www.westonfirm.com

March 23, , 2011 VIA EMA AIL Dale Bish Wilson So onsini Goodric ch & Rosati 650 Page Mill Road Palo Alto, CA 94304 [e-mail] Re: IN N RE: NUTELL LA DECEPTIVE E SALES PRAC CTICES & MAR RKETING LITIG GATION, No. 11CV205H HCAB Plaintiffs' First t Requests fo or Production and First Int terrogatories Dear Dale e: Enclosed please find Plaintiffs' Fir Requests for Productiion and First Set of Interrogatories in the rst t aboveref ferenced matter. As we previously discu ussed, these requests are limited solely y to venue iss sues. Very truly y yours,

Jack Fitzge erald Enclosure es CC: Colleen Bal (by y email) Ke eith Eggleton n (by email) Gregory Westo on (by email) Ron Marron (b by email)

Jack Fitzgerald, Esq. | [e-mail] | [phone]

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LAW OFFICES OF RONALD A. MARRON, APLC RONALD A. MARRON (175650) 3636 4th Avenue, Suite 202 San Diego, California 92103 Telephone: [phone] Facsimile: [phone] [e-mail] THE WESTON FIRM GREGORY S. WESTON (239944) JACK FITZGERALD (257370) 888 Turquoise Street San Diego, CA 92109 Telephone: [phone] Facsimile: [phone] [e-mail] [e-mail] INTERIM CLASS COUNSEL UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA IN RE: NUTELLA DECEPTIVE SALES PRACTICES & MARKETING LITIGATION _______________________________________ ATHENA HOHENBERG & LAURA RUDEBARBATO, individually and on behalf of all others similarly situated, Plaintiffs, v. FERRERO U.S.A, INC., a foreign corporation, Defendant. PLAINTIFFS' FIRST INTERROGATORIES TO DEFENDANT FERRERO, U.S.A., INC. CASE NO. 3:11-CV-00205-H-CAB JUDGE: Hon. Marilyn L. Huff

PROPOUNDING PARTY: RESPONDING PARTY: SET NUMBER:

PLAINTIFFS HOHENBERG & RUDE-BARBATO DEFENDANT FERRERO U.S.A, INC. ONE (1)

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INTERROGATORIES

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Pursuant to Federal Rules of Civil Procedure 26 and 33, Plaintiffs ATHENA HOHENBERG and LAURA RUDE-BARBATO ("Plaintiffs") hereby serve these Interrogatories on Defendant

FERRERO U.S.A, INC. ("Ferrero" or "Defendant"). Defendant is required to respond to these Interrogatories (Set 1) (the "Interrogatory" or "Interrogatories") according to the Federal Rules of Civil Procedure. Defendant shall serve such responses upon Plaintiffs, by and through their attorneys of record herein, as required by Fed. R. Civ. P. 26 and 33. I. DEFINITIONS AND INSTRUCTIONS 1. "YOU" and "YOUR" mean the defendant responding to these Interrogatories, and,

where applicable, any predecessors and/or successors in interest, present and former parents, subsidiaries, divisions and affiliates, and present and former directors, employers, employees, attorneys, agents, other representatives and all other Persons acting under their control or on their behalf. 2. "PERSON" means natural Persons, proprietorships, public or private corporations,

partnerships, trusts, joint ventures, groups, associations, organizations or other legal entities, including representatives of any such Person or Persons. 3. 4. "CLASS PERIOD" refers to January 1, 2007 to the present. "NUTELLA" means a manufactured packaged food item made by YOU identified in

the Complaint, and shall further include any products subsequently added to the Complaint by amendment. 5. The singular form of a word should be interpreted as plural wherever necessary to

bring within the scope of the request any information that might otherwise be construed outside its scope. 6. The words "and" and "or" shall be construed either disjunctively or conjunctively

wherever necessary to bring within the scope of this request any information that might otherwise be construed outside its scope.

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INTERROGATORIES

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II.

INTERROGATORIES

INTERROGATORY NO. 1: Provide on a quarterly basis the net sales of NUTELLA in each of the 50 States of the United States of America during the CLASS PERIOD. INTERROGATORY NO. 2: Provide on an annual basis the amount of money YOU spent on the advertising and promotion of NUTELLA in each of the 50 States of the United States of America, for each year in the CLASS PERIOD or fraction thereof. INTERROGATORY NO. 3: For each of YOUR physical locations in North America, identify the number of natural PERSONS employed by YOU at that location, including but not limited to: (a) YOUR Rockford, Illinois branch, (b) YOUR New York, NY branch, (c) YOUR Newark, NJ branch, (d) YOUR Somerset, NJ branch, (e) YOUR North York, Canada branch, (f) YOUR Toronto, Ontario, Canada branch, and (g) YOUR Brantford, Ontario, Canada branch. INTERROGATORY NO. 4: Identify all advertising agencies YOU used during the CLASS PERIOD for services relating to NUTELLA, including by providing each agency's the name, address, phone number, and YOUR most recent primary contact person there. INTERROGATORY NO. 5: Identify to the best of your knowledge and ability, the number of consumers who purchased YOUR PRODUCTS in each of the 50 States of the United States of America during the CLASS PERIOD, and state the basis for your response. INTERROGATORY NO. 6: Identify, by name and address, all stores and/or distributors carrying NUTELLA in each of the 50 States of the United States of America during the CLASS PERIOD.

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INTERROGATORIES

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DATED: March 23, 2011

By: _/s/ Ronald Marron___________________________ Ronald A. Marron LAW OFFICES OF RONALD A. MARRON, APLC Gregory S. Weston Jack Fitzgerald THE WESTON FIRM INTERIM CLASS COUNSEL

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INTERROGATORIES

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LAW OFFICES OF RONALD A. MARRON, APLC RONALD A. MARRON (175650) 3636 4th Avenue, Suite 202 San Diego, California 92103 Telephone: [phone] Facsimile: [phone] [e-mail] THE WESTON FIRM GREGORY S. WESTON (239944) JACK FITZGERALD (257370) 888 Turquoise Street San Diego, CA 92109 Telephone: [phone] Facsimile: [phone] [e-mail] [e-mail] INTERIM CLASS COUNSEL UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA IN RE: NUTELLA DECEPTIVE SALES PRACTICES & MARKETING LITIGATION _______________________________________ ATHENA HOHENBERG & LAURA RUDEBARBATO, individually and on behalf of all others similarly situated, Plaintiffs, v. FERRERO U.S.A, INC., a foreign corporation, Defendant. PLAINTIFFS' FIRST INTERROGATORIES TO DEFENDANT FERRERO, U.S.A., INC. CASE NO. 3:11-CV-00205-H-CAB JUDGE: Hon. Marilyn L. Huff

PROPOUNDING PARTY: RESPONDING PARTY: SET NUMBER:

PLAINTIFFS HOHENBERG & RUDE-BARBATO DEFENDANT FERRERO U.S.A, INC. ONE (1)

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REQUEST FOR PRODUCTION

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Pursuant to Rules 26 and 34 the Federal Rules of Civil Procedure, Plaintiffs ATHENA HOHENBERG and LAURA RUDE-BARBATO ("Plaintiffs"), hereby request Defendant FERRERO U.S.A, INC. ("Defendant" or "Ferrero") produce for inspection and copying all DOCUMENTS, as defined herein, that are specified in this Request for Production of Documents (Set 1) (the "Request" or "Requests"). Defendant is required to respond in accordance with the Federal Rules of Civil Procedure, and production shall be made to the Law Offices of Ronald A. Marron, A.P.L.C, 3636 Fourth Ave., Ste. 202, San Diego, CA 92103. Defendant shall also serve upon Plaintiffs, by and through their attorneys of record herein, the written response as required by Fed. R. Civ. P. 26 and 34. I. DEFINITIONS AND INSTRUCTIONS 1. "YOU" and "YOUR" mean the defendant responding to these Requests, and, where

applicable, any predecessors and/or successors in interest, present and former parents, subsidiaries, divisions and affiliates, and present and former directors, employers, employees, attorneys, agents, other representatives and all other PERSONS acting under their control or on their behalf. 2. "PERSON" means natural PERSONS, proprietorships, public or private corporations,

partnerships, trusts, joint ventures, groups, associations, organizations or other legal entities, including representatives of any such PERSON or PERSONS. 3. "DOCUMENT" is defined to be synonymous and equal in scope to usage of this term

in Rule 34(a) of the Federal Rules of Civil Procedure. A copy or duplicate of a DOCUMENT which has any non-conforming notes, marginal annotations or other markings, and any preliminary version, draft or revision of the foregoing is a separate DOCUMENT within the meaning of this term. DOCUMENTS include, by way of example only, any memorandum, letter, envelope, correspondence, electronic mail, report, note, Post-It, message, telephone message, telephone log, diary, journal, appointment calendar, calendar, group scheduler calendar, drawing, painting, accounting paper, minutes, working paper, financial report, accounting report, work papers, drafts, facsimile, report, contract, invoice, record of purchase or sale, Teletype message, chart, graph, index, directory, computer directory, computer disk, computer tape, or any other written, printed, typed, punched, taped, filmed, or graphic matter however produced or reproduced. DOCUMENTS also include the file, folder tabs, and labels appended to or containing any DOCUMENTS. 2
REQUEST FOR PRODUCTION

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4.

"COMMUNICATION" means the transmission, sending and/or receipt of information

of any kind by and/or through any means including, but not limited to speech, writings, language (computer, foreign or otherwise), computer electronics of any kind (including, but not limited to "email"), magnetic tape, videotape, photographs, graphs, symbols, signs, magnetic and/or optical disks, "floppy disks," compact discs, CD ROM discs, sound, radio and/or video signals, telecommunication, telephone, teletype, facsimile, telegram, microfilm, microfiche, photographic film of all types and/or other media of any kind. The term "COMMUNICATION" also includes, without limitation, all "DOCUMENTS" (as defined herein) and all inquiries, discussions, conversations, negotiations, agreements, understandings, Meetings, notices, requests, responses, demands, complaints, and/or press, publicity or trade releases. 5. "RELATING TO" means in whole or in part constituting, containing, CONCERNING,

discussing, referring, describing, analyzing, identifying, evidencing, or stating. 6. "CONCERNING" means and includes relating to, referring to, describing, discussing,

analyzing, identifying, evidencing, containing, stating, or constituting. 7. 8. "CLASS PERIOD" refers to January 1, 2007 to the present. "NUTELLA" means a manufactured packaged food item made by YOU identified in

the currently-operative Complaint as "NutellaŽ". 9. The singular form of a word should be interpreted as plural wherever necessary to

bring within the scope of the request any information that might otherwise be construed outside its scope. 10. The words "and" and "or" shall be construed either disjunctively or conjunctively

wherever necessary to bring within the scope of this request any information that might otherwise be construed to be outside its scope. 11. In responding to this Request, YOU are required to furnish all DOCUMENTS that are

available to YOU, including DOCUMENTS in the possession, custody or control of YOUR attorneys, officers, agents, employees, accountants, consultants, representatives, or any PERSONS directly or indirectly employed by or connected with YOU or YOUR attorneys or anyone else subject to YOUR control. All DOCUMENTS that are responsive, in whole or in part, to any portion of this Request 3
REQUEST FOR PRODUCTION

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shall be produced in their entirety, including all attachments. 12. All DOCUMENTS should be produced as they are kept in the ordinary course of

business or should be organized and labeled to correspond to the specific requests to which they are responsive. All DOCUMENTS should be produced in any file folder or carton in which they have been maintained, and should be stored, clipped, stapled, or otherwise arranged in the same form and manner in which they were found. 13. If and to the extent YOU object to any request, state with specificity all grounds for

any such objection. 14. Unless otherwise indicated, each matter or request listed below shall cover the period

from January 1, 2007 to the present. 15. If YOU assert any claim of privilege to object to any request, and YOU withhold

DOCUMENTS based on that asserted privilege, in a privilege log, state the title and nature of the DOCUMENT(S), and furnish a list signed by the attorney of record giving the following information with respect to each withheld Document: (a) the name and title of the author and/or sender and the name and title of the recipient; (b) the date of the Document's origination; (c) the name of each PERSON or PERSONS participating in the preparation of the Document; (d) the name and position, if any, of each PERSON to whom the contents of the Document have been communicated by copy, exhibition, reading, or substantial summarization; (e) a statement of the specific basis on which privilege is claimed and whether or not the subject matter or the contents of that Document is limited to legal advice or information provided for the purpose of securing legal advice; and (f) the identity and position, if any, of the other PERSON or PERSONS supplying the attorney signing the list with the information requested in subparagraphs above. 16. In the event that any Document called for by these requests has been destroyed or

discarded, identify that Document by stating the title (if known) and nature of the Document and furnish a list signed by the attorney of record giving the following information with respect to each Document: (a) any addressor or addressee; (b) any indicated or blind copies; (c) the Document's date, subject matter, number of pages, and attachments or appendices; (d) all PERSONS to whom the Document was distributed, shown, or explained; (e) its date of destruction or discard and the manner 4
REQUEST FOR PRODUCTION

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of destruction or discard; and (f) the PERSONS authorizing or carrying out such destruction or discard. 17. The following requests are continuing in nature and in the event YOU become aware of

or acquire additional information relating or referring thereto, such additional information is to be promptly produced. II. REQUESTS FOR PRODUCTION OF DOCUMENTS

REQUEST NO. 1 YOUR articles of incorporation during the CLASS PERIOD. REQUEST NO. 2 All DOCUMENTS filed on YOUR behalf with the California Secretary of State during the CLASS PERIOD. REQUEST NO. 3 Organization charts sufficient to show YOUR corporate structure, and any changes thereto, during the CLASS PERIOD. REQUEST NO. 4 DOCUMENTS sufficient to show the amount of units and percentage of U.S. sales of NUTELLA sold in California during each year of the CLASS PERIOD. REQUEST NO. 5 All DOCUMENTS concerning the sales, including volume, of NUTELLA in California. REQUEST NO 6 DOCUMENTS sufficient to show YOUR revenue and profit from sales of NUTELLA in the United States during the CLASS PERIOD. REQUEST NO 7 DOCUMENTS sufficient to show YOUR revenue and profit from sales of NUTELLA in California during the CLASS PERIOD. REQUEST NO. 8 DOCUMENTS sufficient to show the amount and percentage of funds spent on television advertisements of NUTELLA in California media markets relative to the amount and percentage of 5
REQUEST FOR PRODUCTION

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funds spent on television advertisements that did not reach California media markets, for each year during the CLASS PERIOD. REQUEST NO. 9 For any advertisement of NUTELLA that ran on television during the CLASS PERIOD, DOCUMENTS sufficient to show or identify (a) the location where the advertisement was produced and filmed, (b) the company or companies that produced and filmed the advertisement, and (c) any vendors involved in the creation of the advertisement. REQUEST NO. 10 All DOCUMENTS that evidence, discuss, or reflect when and where print, radio or television advertisements relating to NUTELLA were disseminated in the United States during the CLASS PERIOD including, without limitation, media plans. REQUEST NO. 11 All DOCUMENTS and COMMUNICATIONS discussing both NUTELLA and California. REQUEST NO. 12 DOCUMENTS sufficient to show the year and date YOU began producing, distributing or selling NUTELLA in the United States. REQUEST NO. 13 All DOCUMENTS on which YOU intend to rely to argue, in any form or venue (including but not limited to on a Motion to Transfer Venue, or Motion for MDL Consolidation) that venue is proper in any district other than the Southern District of California.

DATED: March 23, 2011

By: _/s/ Ronald Marron___________________________ Ronald A. Marron LAW OFFICES OF RONALD A. MARRON, APLC Gregory S. Weston Jack Fitzgerald THE WESTON FIRM INTERIM CLASS COUNSEL

6
REQUEST FOR PRODUCTION

T H E

W E S T O N

F I R M

888 Turquoise Street | San Diego, CA 92109 2811 Sykes Court | Santa Clara, CA 95051 SAN DIEGO OFFICE TEL: [phone] FAX: [phone] SANTA CLARA OFFICE TEL: [phone] www.westonfirm.com

March 23, , 2011 VIA EMA AIL Dale Bish Wilson So onsini Goodric ch & Rosati 650 Page Mill Road Palo Alto, CA 94304 [e-mail] Re: IN N RE: NUTELL LA DECEPTIVE E SALES PRAC CTICES & MAR RKETING LITIG GATION, No. 11CV205H HCAB Plaintiffs' Rule e 30(b)(6) Dep position Noti ice to Defend dant Dear Dale e: Further to my letter earlier today and our pre o e y evious discus ssions, enclos please fi Plaintiffs' Rule sed ind ' 30(b)(6) D Deposition No otice to Defen ndant related solely to ven nue issues. Very truly y yours,

Jack Fitzge erald Enclosure es CC: Colleen Bal (by y email) Ke eith Eggleton n (by email) Gregory Westo on (by email) Ron Marron (b by email)

Jack Fitzgerald, Esq. | [e-mail] | [phone]

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LAW OFFICES OF RONALD A. MARRON, APLC RONALD A. MARRON (175650) 3636 4th Avenue, Suite 202 San Diego, California 92103 Telephone: [phone] Facsimile: [phone] [e-mail] THE WESTON FIRM GREGORY S. WESTON (239944) JACK FITZGERALD (257370) 888 Turquoise Street San Diego, CA 92109 Telephone: [phone] Facsimile: [phone] [e-mail] [e-mail] INTERIM CLASS COUNSEL UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA IN RE: NUTELLA DECEPTIVE SALES PRACTICES & MARKETING LITIGATION _______________________________________ ATHENA HOHENBERG & LAURA RUDEBARBATO, individually and on behalf of all others similarly situated, Plaintiffs, v. FERRERO U.S.A, INC., a foreign corporation, Defendant. PLAINTIFF'S NOTICE OF TAKING RULE 30(b)(6) DEPOSITION OF DEFENDANT Date: April 5, 2011 Time: 10:00 a.m. Place: 600 Cottontail Ln., Somerset NJ 08873 CASE NO. 3:11-CV-00205-H-CAB JUDGE: Hon. Marilyn L. Huff

// //

1
NOTICE OF TAKING DEPOSITION 30(b)(6)

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TO ALL PARTIES TO THIS ACTION AND THEIR ATTORNEYS' OF RECORD: PLEASE TAKE NOTICE THAT, pursuant to Federal Rule of Civil Procedure 30(b)(6), on APRIL 5, 2011 at 10:00 a.m., Plaintiffs will take before a notary public or officer duly authorized to administer oaths in the State of New Jersey, one or more depositions of defendant FERRERO U.S.A, INC. ("Defendant") at its headquarters at 600 Cottontail Lane, Somerset, New Jersey 08873 of the person or persons most knowledge about the topics identified herein below (the "Deposition Topics"). PLEASE TAKE FURTHER NOTICE THAT these depositions shall be recorded stenographically or by audio, audiovisual or stenographic means. These depositions may be used at the trial. Defendants shall identify the persons who will speak on its behalf as to each Deposition Topic at least seven days before the deposition(s). The taking of these deposition(s) may be adjourned day to day until completed, and may occur over several days if more than one person is necessary to provide the information requested. DEPOSITION TOPICS 1. Ferrero's corporate structure, including without limitation its relationship to any

parents, subsidiaries or affiliates, foreign or domestic. 2. 3. 4. States. 5. Sales numbers and figures in each State of the United States, including California, Ferrero's United States operations. The formulation, production and manufacture of Nutella sold in the United States. The production of television, radio and print advertisements for Nutella in the United

relating to NutellaŽ throughout the Class Period. 6. The geographic scope of sales in each State of the United States, including California,

of NutellaŽ throughout the Class Period. 7. Defendant's promotional and advertising efforts or campaigns in each State of the

United States, including California. 8. Defendant's profit and revenue from sales of Nutella in each State of the United States,

including California, throughout the Class Period. 9. Defendant's compliance with the Federal Food, Drug and Cosmetic Act, 21 U.S.C. §§ 2
NOTICE OF TAKING DEPOSITION 30(b)(6)

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301 et seq., its implementing regulations, the California Sherman Food, Drug and Cosmetic Act, Cal. Bus. & Prof. Code §§ 109875 et seq., and any other federal or state law, statute, regulation, rule or requirement affecting the manufacture, distribution, marketing, advertising and sale of Nutella in California throughout the Class Period. 10. 11. Defendant's document retention policies. Defendant's internal systems relating to Nutella (for example, systems used by

Defendant's employees involved in the creation, marketing, manufacture, distribution, sale and tracking of Nutella relating to electronic communications, bookkeeping, record-keeping, finance, sales and distribution, etc.).

Dated this 23rd day of March, 2011 By: /s/ RONALD A. MARRON Ronald A. Marron LAW OFFICES OF RONALD A. MARRON, APLC Gregory S. Weston Jack Fitzgerald THE WESTON FIRM INTERIM CLASS COUNSEL

3
NOTICE OF TAKING DEPOSITION 30(b)(6)

Exhibit E

Jack Fitzgerald
From: Sent: To: Cc: Subject: Bal, Colleen <[e-mail]> Tuesday, March 29, 2011 5:44 PM Jack Fitzgerald Bish, Dale; Eggleton, Keith; 'ronald marron'; [e-mail] RE: In re Nutella - Ferrero's Request for Additional Extension

Thanks for your quick reply. We feel we need to file the ex parte, which we will be doing shortly. But we will advise the Court of this offer, as well.
From: Jack Fitzgerald [mailto:[e-mail]] Sent: Tuesday, March 29, 2011 4:08 PM To: Bal, Colleen Cc: Bish, Dale; Eggleton, Keith; 'ronald marron'; [e-mail] Subject: RE: In re Nutella - Ferrero's Request for Additional Extension

No, we don't agree to stay discovery, though we would be willing to refrain from serving further substantive discovery on Ferrero (despite that it is already prepared) until the Motion to Dismiss is resolved, as a concession if Ferrero would agree to the 3week extension on its response, rather than move ex parte for a longer extension. Thanks, Jack Jack Fitzgerald The Weston Firm 2811 Sykes Court Santa Clara, California 95051 Phone: [phone] Cell: (650) 4403170
From: Bal, Colleen [mailto:[e-mail]] Sent: Tuesday, March 29, 2011 3:55 PM To: Bal, Colleen; Jack Fitzgerald Cc: Bish, Dale; Eggleton, Keith; ronald marron; [e-mail] Subject: RE: In re Nutella - Ferrero's Request for Additional Extension

Jack, one more thing. You had indicated yesterday that you would consider our request to stay additional, nonvenue related discovery until after a ruling on the motion to transfer, and that you would provide your answer on that today. You didn't mention anything about discovery in your email response below. Should I take from your silence on the point that you will not agree to the discovery stay? We are going to file the ex parte papers imminently, so if I am incorrect and you are agreeable to the requested discovery stay, please let me know immediately. Thank you.
From: Bal, Colleen Sent: Tuesday, March 29, 2011 3:50 PM To: 'Jack Fitzgerald' Cc: Bish, Dale; Eggleton, Keith; ronald marron; [e-mail] Subject: RE: In re Nutella - Ferrero's Request for Additional Extension

Jack,
1

Thank you for the offer for a 3week extension to respond to the consolidated complaint. We understand your desire to move this case quickly, but as we discussed with you yesterday, we do not believe it makes sense for Ferrero to respond to multiple complaints in multiple jurisdictions before venue issues are resolved. Therefore, as planned, we will file the ex parte request today given the looming April 6 deadline, but we will include in it a discussion of your offer for the 3 week extension. I think the Rule 30(b)(6) deposition will likely go forward on 4/14, but still have to confirm that date works with one additional person. Will get back to you as soon as possible on that. Regards, Colleen
From: Jack Fitzgerald [mailto:[e-mail]] Sent: Tuesday, March 29, 2011 1:56 PM To: Bal, Colleen Cc: Bish, Dale; Eggleton, Keith; ronald marron; [e-mail] Subject: In re Nutella - Ferrero's Request for Additional Extension

Dear Colleen, We've considered your client's request for an extension to respond to the Master Consolidated Complaint. We understand your client's position is that it should not have to respond to Plaintiffs' suit until both the pending Motion to Transfer and your contemplated MDL motion are resolved. As we stated, our clients believe the legal issues raised by Ferrero's (presumably) Motion to Dismiss are legal ones not requiring discovery, so it does not make sense to postpone their resolution, particularly in light of the fact that plaintiffs have already granted Ferrero similar extensions. Moreover, we worry that the indefinite nature of the extension your client requests could delay this case for at least several months, contrary to the interests of the class. Nevertheless, in the spirit of compromise, we are willing to stipulate to a 3week extension, so that Ferrero's answer would be due on April 27, rather than April 6, as it is currently due. Very truly yours, Jack Jack Fitzgerald The Weston Firm 2811 Sykes Court Santa Clara, California 95051 Phone: [phone] Cell: (650) 4403170

This email and any attachments thereto may contain private, confidential, and privileged material for the sole use of the intended recipient. Any review, copying, or distribution of this email (or any attachments thereto) by others is strictly prohibited. If you are not the intended recipient, please contact the sender immediately and permanently delete the original and any copies of this email and any attachments thereto. __________ Information from ESET NOD32 Antivirus, version of virus signature database 5998 (20110329) __________ The message was checked by ESET NOD32 Antivirus.
2

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__________ Information from ESET NOD32 Antivirus, version of virus signature database 5998 (20110329) __________ The message was checked by ESET NOD32 Antivirus. http://www.eset.com

3

Exhibit F

Jack Fitzgerald
From: Sent: To: Cc: Subject: Jack Fitzgerald <[e-mail]> Wednesday, March 30, 2011 6:56 PM 'Bal, Colleen' 'Bish, Dale'; 'Eggleton, Keith'; 'ronald marron'; '[e-mail]' RE: In Re Nutella - 30(b)(6) Deposition Logistics

Colleen, Thanks for that clarification. When I spoke to the court yesterday, the clerk advised me only of the 16th, 23rd and 30th, so I guess we got conflicting information. In any event, we appreciate your compromise in agreeing to the 16th date, and will anticipate filing a joint motion for continuance to that effect unless the court resolves your pending ex parte motion differently. To address your statement below, you are certainly correct that any delay is contrary to the class' interests, as well as the interests of American consumers generally. Your conclusion that the transfer motion must be decided quickly, however, does not flow from that premise. It is Plaintiffs' position, as will be noted in our Opposition, that Ferrero's response should be filed, and the pleadings decided (which does not require discovery), before the its transfer motion is addressed (which does require substantial discovery). Very truly yours, Jack Jack Fitzgerald The Weston Firm 2811 Sykes Court Santa Clara, California 95051 Phone: [phone] Cell: (650) 4403170
From: Bal, Colleen [mailto:[e-mail]] Sent: Wednesday, March 30, 2011 6:42 PM To: Jack Fitzgerald Cc: Bish, Dale; Eggleton, Keith; 'ronald marron'; [e-mail] Subject: RE: In Re Nutella - 30(b)(6) Deposition Logistics

Jack, I believe you are mistaken. The court advised us today that May 9 is available. As you know, we are rushing to provide you with our discovery responses and documents next week, so that you can take the Rule 30(b)(6) deposition on April 14. And, as we have advised you, the document production should fit into a small Fed Ex mailing box. So, it is hard to imagine that you will need more than a few days after the deposition to incorporate the deposition testimony into your opposition brief. We believe that it is important for the motion to transfer to get before the Court as soon as possible. And, by your statement yesterday that delay of this case is contrary to the interests of the class, I would not have expected you to seek such a lengthy extension. In any event, we will agree to an extension to May 16 if the Court is amenable to that. Regards, Colleen
1

From: Jack Fitzgerald [mailto:[e-mail]] Sent: Wednesday, March 30, 2011 5:02 PM To: Bal, Colleen Cc: Bish, Dale; Eggleton, Keith; 'ronald marron'; [e-mail] Subject: RE: In Re Nutella - 30(b)(6) Deposition Logistics

Colleen, May 9 was not an available date, and we would really feel more comfortable with the 23rd or 30th date to give us adequate time to process discovery before opposing the transfer motoin. Please advise. Thanks, Jack Jack Fitzgerald The Weston Firm 2811 Sykes Court Santa Clara, California 95051 Phone: [phone] Cell: (650) 4403170
From: Bal, Colleen [mailto:[e-mail]] Sent: Wednesday, March 30, 2011 1:46 PM To: Jack Fitzgerald Cc: Bish, Dale; Eggleton, Keith; 'ronald marron'; [e-mail] Subject: RE: In Re Nutella - 30(b)(6) Deposition Logistics

Jack, Let's go with May 9, since we all have an interest in having the Court hear the transfer motion relatively soon. I think a May 9 hearing date will move the due date for your opposition brief to April 25, which should give you plenty of time after the April 14 deposition. Regards, Colleen
From: Jack Fitzgerald [mailto:[e-mail]] Sent: Wednesday, March 30, 2011 12:05 PM To: Bal, Colleen Cc: Bish, Dale; Eggleton, Keith; 'ronald marron'; [e-mail] Subject: RE: In Re Nutella - 30(b)(6) Deposition Logistics

Hi Colleen, Please let me know your client's position on the hearing date at your earliest convenience today, as I would like to include that in our opposition to your client's ex parte motion. Thanks, Jack Jack Fitzgerald
2

The Weston Firm 2811 Sykes Court Santa Clara, California 95051 Phone: [phone] Cell: (650) 4403170
From: Bal, Colleen [mailto:[e-mail]] Sent: Tuesday, March 29, 2011 7:26 PM To: Jack Fitzgerald Cc: Bish, Dale; Eggleton, Keith; ronald marron; [e-mail] Subject: RE: In Re Nutella - 30(b)(6) Deposition Logistics

Jack, We can have the deposition on 4/14. We would prefer not to have the deposition at Ferrero's office, but Ferrero does have a relationship with counsel close by who can give us a conference room. Information on them is below. I will talk with Ferrero tomorrow about the hearing date on the motion to transfer and let you know Ferrero's position. Regards, Colleen Norris McLaughlin & Marcus, P.A. 721 Route 202-206 , Suite 200 Bridgewater, NJ 08807-5933 t: 908.252.4276 | f: 908.722.0755
From: Jack Fitzgerald [mailto:[e-mail]] Sent: Tuesday, March 29, 2011 1:53 PM To: Bal, Colleen Cc: Bish, Dale; Eggleton, Keith; ronald marron; [e-mail] Subject: In Re Nutella - 30(b)(6) Deposition Logistics

Dear Colleen, We received your responses and objections to the 30(b)(6) notice thanks. Can you please confirm which day is best for Mr. Kreilmann's deposition? I think we were looking at April 14 or 15. Also, we had noticed the deposition for Ferrero's office, but is there somewhere else you would like us to have it, for example if your firm has nearby offices? I also have access to space if we need it. Please let me know and I'll make arrangements for court reporting and send out an updated notice. Also, in light of the deposition scheduling, I've contacted the court to see when the next available hearing date is on your Motion to Transfer, and was advised May 16, 23 and 30 are all open. We are OK with any of those dates, though would prefer the 23 or 30 since that would give us a little more time to process the deposition. Please let us know which date you prefer. Thanks, Jack Jack Fitzgerald
3

The Weston Firm 2811 Sykes Court Santa Clara, California 95051 Phone: [phone] Cell: (650) 4403170

This email and any attachments thereto may contain private, confidential, and privileged material for the sole use of the intended recipient. Any review, copying, or distribution of this email (or any attachments thereto) by others is strictly prohibited. If you are not the intended recipient, please contact the sender immediately and permanently delete the original and any copies of this email and any attachments thereto. __________ Information from ESET NOD32 Antivirus, version of virus signature database 5998 (20110329) __________ The message was checked by ESET NOD32 Antivirus. http://www.eset.com

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4

Exhibit G

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LAW OFFICES OF RONALD A. MARRON, APLC RONALD A. MARRON (175650) 3636 4th Avenue, Suite 202 San Diego, California 92103 Telephone: [phone] Facsimile: [phone] [e-mail] THE WESTON FIRM GREGORY S. WESTON (239944) JACK FITZGERALD (257370) 888 Turquoise Street San Diego, CA 92109 Telephone: [phone] Facsimile: [phone] [e-mail] [e-mail] INTERIM CLASS COUNSEL UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA IN RE: NUTELLA DECEPTIVE SALES PRACTICES & MARKETING LITIGATION _______________________________________ ATHENA HOHENBERG & LAURA RUDEBARBATO, individually and on behalf of all others similarly situated, Plaintiffs, v. FERRERO U.S.A, INC., a foreign corporation, Defendant. ATTACHMENT A TO PLAINTIFFS' SUBPOENA TO CONNIE L. EVERS CASE NO. 3:11-CV-00205-H-CAB JUDGE: Hon. Marilyn L. Huff

PROPOUNDING PARTY: RESPONDING PARTY:

PLAINTIFFS HOHENBERG & RUDE-BARBATO THIRD PARTY CONNIE EVERS

1
REQUEST FOR PRODUCTION

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Pursuant to Rule 30(b)(2) of the Federal Rules of Civil Procedure, Plaintiffs ATHENA HOHENBERG and LAURA RUDE-BARBATO ("Plaintiffs"), hereby request, further to the related subpoena, that third-party CONNIE EVERS produce for inspection and copying all DOCUMENTS, as defined herein, that are specified in this Request for Production of Documents (Set 1) (the "Request" or "Requests"). You are required to respond in accordance with the Federal Rules of Civil Procedure, and production shall be made consistent with the subpoena served upon you, namely at the location of the deposition, at least one hour prior to commencement of the deposition or, if producing such documents beforehand, production may be made to the Law Office of Ronald A. Marron, at the address noted above. I. DEFINITIONS AND INSTRUCTIONS 1. "YOU" and "YOUR" means the party responding to these Requests, and, where

applicable, any predecessors and/or successors in interest, present and former parents, subsidiaries, divisions and affiliates, and present and former directors, employers, employees, attorneys, agents, other representatives and all other PERSONS acting under their control or on their behalf. "YOU" and "YOUR" shall also refer to any alter egos, and shall specifically be defined to include 24 Carrot Press and any other business entity through which YOU engage in, contract for or perform services relating to nutrition or writing. 2. "PERSON" means natural PERSONS, proprietorships, public or private corporations,

partnerships, trusts, joint ventures, groups, associations, organizations or other legal entities, including representatives of any such PERSON or PERSONS. 3. "DOCUMENT" is defined to be synonymous and equal in scope to usage of this term

in Rule 34(a) of the Federal Rules of Civil Procedure. A copy or duplicate of a DOCUMENT which has any non-conforming notes, marginal annotations or other markings, and any preliminary version, draft or revision of the foregoing is a separate DOCUMENT within the meaning of this term. DOCUMENTS include, by way of example only, any memorandum, letter, envelope, correspondence, electronic mail, report, note, Post-It, message, telephone message, telephone log, diary, journal, appointment calendar, calendar, group scheduler calendar, drawing, painting, accounting paper, minutes, working paper, financial report, accounting report, work papers, drafts, facsimile, report, 2
REQUEST FOR PRODUCTION

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contract, invoice, record of purchase or sale, Teletype message, chart, graph, index, directory, computer directory, computer disk, computer tape, or any other written, printed, typed, punched, taped, filmed, or graphic matter however produced or reproduced. DOCUMENTS also include the file, folder tabs, and labels appended to or containing any DOCUMENTS. 4. "COMMUNICATION" means the transmission, sending and/or receipt of information

of any kind by and/or through any means including, but not limited to speech, writings, language (computer, foreign or otherwise), computer electronics of any kind (including, but not limited to "email"), magnetic tape, videotape, photographs, graphs, symbols, signs, magnetic and/or optical disks, "floppy disks," compact discs, CD ROM discs, sound, radio and/or video signals, telecommunication, telephone, teletype, facsimile, telegram, microfilm, microfiche, photographic film of all types and/or other media of any kind. The term "COMMUNICATION" also includes, without limitation, all "DOCUMENTS" (as defined herein) and all inquiries, discussions, conversations, negotiations, agreements, understandings, Meetings, notices, requests, responses, demands, complaints, and/or press, publicity or trade releases. 5. "RELATING TO" means in whole or in part constituting, containing, CONCERNING,

discussing, referring, describing, analyzing, identifying, evidencing, or stating. 6. "CONCERNING" means and includes relating to, referring to, describing, discussing,

analyzing, identifying, evidencing, containing, stating, or constituting. 7. 8. "CLASS PERIOD" refers to January 1, 2007 to the present. "NUTELLA" means a manufactured packaged food item made by YOU identified in

the currently-operative Complaint, attached for your convenience, as "NutellaŽ". 9. "COMPLAINT" means the currently-operative Master Consolidated Complaint in the

above-captioned matter, attached hereto for YOUR convenience. 10. "Ferrero" means Ferrero U.S.A., Inc., the Defendant in this lawsuit, and any

predecessors and/or successors in interest, present and former parents, subsidiaries, divisions and affiliates, and present and former directors, employers, employees, attorneys, agents, other representatives and all other PERSONS acting under its control or on its behalf 11. The singular form of a word should be interpreted as plural wherever necessary to 3
REQUEST FOR PRODUCTION

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bring within the scope of the request any information that might otherwise be construed outside its scope. 12. The words "and" and "or" shall be construed either disjunctively or conjunctively

wherever necessary to bring within the scope of this request any information that might otherwise be construed to be outside its scope. 13. In responding to this Request, YOU are required to furnish all DOCUMENTS that are

available to YOU, including DOCUMENTS in the possession, custody or control of YOUR attorneys, officers, agents, employees, accountants, consultants, representatives, or any PERSONS directly or indirectly employed by or connected with YOU or YOUR attorneys or anyone else subject to YOUR control. All DOCUMENTS that are responsive, in whole or in part, to any portion of this Request shall be produced in their entirety, including all attachments. 14. All DOCUMENTS should be produced as they are kept in the ordinary course of

business or should be organized and labeled to correspond to the specific requests to which they are responsive. All DOCUMENTS should be produced in any file folder or carton in which they have been maintained, and should be stored, clipped, stapled, or otherwise arranged in the same form and manner in which they were found. 15. If and to the extent YOU object to any request, state with specificity all grounds for

any such objection. 16. Unless otherwise indicated, each matter or request listed below shall cover the period

from January 1, 2007 to the present. 17. If YOU assert any claim of privilege to object to any request, and YOU withhold

DOCUMENTS based on that asserted privilege, in a privilege log, state the title and nature of the DOCUMENT(S), and furnish a list signed by the attorney of record giving the following information with respect to each withheld DOCUMENT: (a) the name and title of the author and/or sender and the name and title of the recipient; (b) the date of the DOCUMENT'S origination; (c) the name of each PERSON or PERSONS participating in the preparation of the DOCUMENT; (d) the name and position, if any, of each PERSON to whom the contents of the DOCUMENT have been communicated by copy, exhibition, reading, or substantial summarization; (e) a statement of the 4
REQUEST FOR PRODUCTION

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specific basis on which privilege is claimed and whether or not the subject matter or the contents of that DOCUMENT is limited to legal advice or information provided for the purpose of securing legal advice; and (f) the identity and position, if any, of the other PERSON or PERSONS supplying the attorney signing the list with the information requested in subparagraphs above. 18. In the event that any DOCUMENT called for by these requests has been destroyed or

discarded, identify that DOCUMENT by stating the title (if known) and nature of the DOCUMENT and furnish a list signed by the attorney of record giving the following information with respect to each Document: (a) any addressor or addressee; (b) any indicated or blind copies; (c) the Document's date, subject matter, number of pages, and attachments or appendices; (d) all PERSONS to whom the Document was distributed, shown, or explained; (e) its date of destruction or discard and the manner of destruction or discard; and (f) the PERSONS authorizing or carrying out such destruction or discard. 19. The following requests are continuing in nature and in the event YOU become aware of

or acquire additional information relating or referring thereto, such additional information is to be promptly produced. II. REQUESTS FOR PRODUCTION OF DOCUMENTS

REQUEST NO. 1 YOUR articles of incorporation during the CLASS PERIOD. REQUEST NO. 2 All DOCUMENTS filed by YOU or on YOUR behalf with the California Secretary of State and Oregon Secretary of State during the CLASS PERIOD. REQUEST NO. 3 All DOCUMENTS constituting or CONCERNING any contract YOU have ever had with Ferrero. REQUEST NO. 4 DOCUMENTS sufficient to show the amount and percentage of YOUR income, on an annual basis, attributable for work performed for or on behalf of Ferrero, or for services YOU rendered to Ferrero. 5
REQUEST FOR PRODUCTION

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REQUEST NO. 5 All DOCUMENTS provided to you by Ferrero. REQUEST NO 6 All DOCUMENTS you provided to Ferrero. REQUEST NO. 7 All COMMUNICATIONS between YOU and Ferrero. REQUEST NO 8 All DOCUMENTS RELATING TO advertising or labeling for NUTELLA including without limitation all internet (including native form HTML and images files used on YOUR website(s)), television and radio (including transcriptions for each such advertisement), and print advertisements, sales materials, promotional materials, packaging, product labeling, direct mail, coupons, circulars, fliers, handouts, point of sale literature, package inserts, and informational brochures, which directly or indirectly refer to, depict or discuss the NUTELLA, and DOCUMENTS sufficient to show the period of time during which any such advertisement was used or in effect.. REQUEST NO 9 All DOCUMENTS RELATING TO the ingredients in NUTELLA. REQUEST NO 10 DOCUMENTS sufficient to show YOUR current or former primary point(s) of contact at Ferrero. REQUEST NO 11 All DOCUMENTS YOU relied on in forming any opinion attributed to YOU discussed in the COMPLAINT (see paragraphs 82, 84-88). REQUEST NO 12 To the extent not produced in response to Request No. 10, any DOCUMENTS YOU contend support the opinions attributed to YOU discussed in the COMPLAINT, including without limitation, any nutritional studies, scholarly works, journal articles, or experimental data.

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REQUEST FOR PRODUCTION