Patane et al v. Nestle Waters North America, Inc.
Filing
486
ORDER granting plaintiffs' 470 Motion to Compel and denying defendant's 474 Motion for Protective Order and to Quash Subpoena in part with prejudice and in part without prejudice. Defendant's compliance is due by October 5, 2022 at 12:00 p.m. Plaintiffs' duplicative 469 Sealed Motion is denied as moot. Signed by Judge S. Dave Vatti on 10/4/2022. (Nichols, Jeffrey)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
MARK J. PATANE, et al.,
Plaintiffs,
v.
NESTLE WATERS NORTH
AMERICA INC.,
Defendant.
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No. 3:17-cv-1381 (JAM)
RULING ON LETTER MOTIONS
Pending are plaintiffs’ Motion to Compel, Doc. No. 470, and defendant’s Cross-Motion
for Protective Order and to Quash Subpoenas, Doc. No. 474.1 In this action, plaintiffs allege that
defendant has engaged in a decades-long pattern of deception by falsely labeling its Poland
Spring water products as “spring water,” and that defendant’s conduct has enabled it to unduly
profit from the bottled spring water market because defendants are able to capture consumers of
premium water who are willing to pay premium prices. Doc. No. 160 at ¶¶ 14-15. Defendants
have asserted in affirmative defenses that plaintiffs’ claims are barred because state regulators
authorized defendant to label and sell their product as “spring water.” See, e.g., Twelfth,
Sixteenth, and Thirty-Sixth Affirmative Defenses, Doc. No. 260.
As admitted in defendant’s motion, “[defendant]’s counsel have been investigating these
review processes, communicating with appropriate authorities and witnesses, and drafting
declarations [for state employee witnesses] that might be used [by defendant] in support of
summary judgment.” Doc. No. 474, at 1. Plaintiff now moves to compel production of the
Although defendant does not use the word “quash” in its motion, it seeks both relief from party
discovery (protective order) and preclusion of certain document requests in third-party
subpoenas (quash) as to the same set of written materials. See Doc. No. 474.
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documents and communications exchanged between defendant’s counsel and these third-party
witnesses. Doc. No. 470. There appears to be no dispute that the documents and materials are
responsive to plaintiff’s Requests for Production 51 and 64; however, defendant objects that the
materials are protected under the work product doctrine. Defendant asks that the materials be
protected from disclosure, and further moves the Court to quash, in related part, document
requests in subpoenas that plaintiff served on the state employee witnesses. Doc. No. 474. For
the reasons that follow, plaintiff’s motion is GRANTED and defendant’s motion is DENIED, in
part with prejudice and in part without prejudice.
A. Party discovery
Turning first to defendant’s objection to party discovery, “[t]he party asserting the
protection afforded by the work product doctrine has the burden of showing both that the
protection exists and that it has not been waived.” Audet v. Fraser, No. 3:16-cv-940 (MPS),
2019 WL 285400, at *2 (D. Conn. Jan. 22, 2019) (Martinez, M.J.). As a preliminary matter,
there is no indication that defendant has met its initial burden of generating a privilege log as
required by Rule 26(b)(5), which by itself may operate as a waiver. See Universal Standard Inc.
v. Target Corp., 331 F.R.D. 80, 85 (S.D.N.Y. 2019) (“Withholding privileged materials without
including the material in a privilege log may be viewed as a waiver of the privilege or
protection.”). Furthermore, even if the documents were the subject of a privilege log,
defendant’s disclosure of putative work product to the third-party state employee witnesses
amounts to a waiver under the circumstances. “Generally speaking, the work product privilege
should not be deemed waived unless disclosure is inconsistent with maintaining secrecy from
possible adversaries.” Am. Oversight v. United States Dep’t of Justice, 45 F.4th 579, 593 (2d
Cir. 2022); see also Audet, at *2 (“The test for waiver is whether the disclosure at issue has
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substantially increased the opportunities for potential adversaries to obtain the information.”);
Wright & Miller, § 2024 (contrasting waiver of attorney-client privilege with waiver of work
product protection).
1. Waiver by disclosure
“District courts in this Circuit have held that disclosure of work product to a third-party
witness in the action waives [the protection] where the witness does not share a common interest
with the disclosing party.” Subramanian v. Lupin Inc., No. 17-cv-5040 (RAK)(HP), 2019 WL
12038811, at *4 (S.D.N.Y. Sept. 4, 2019) (citing Alexander Interactive Inc. v. Adorama, 12-cv6608, 2014 WL 12776440 (S.D.N.Y. June 17, 2014)); S.E.C. v. Gupta, 281 F.R.D. 169, 172-73
(S.D.N.Y. 2012); In re Refco Inc. Securities Litigation, 07-MDL-1902 (JSR), 08-cv-3065 (JSR),
08-cv-3086 (JSR), 2012 WL 678139 (S.D.N.Y. Feb. 28, 2012); Ricoh Co. v. Aeroflex Inc., 219
F.R.D. 66, 70 (S.D.N.Y. 2003)). Additionally, sharing protected information with the
government carries the potential for it to be made public, particularly where there is no
agreement as to confidentiality. See Audet, 2019 WL 285400, at *2 (“Nothing in the record
suggests that the disclosure was made pursuant to any agreement that the notes would be kept
confidential.”). Here, defendant has disclosed the putative work product to witnesses (a) who
had no ostensible common interest with defendant in this action, (b) who, in light of the
affirmative defenses raised, were likely to be subpoenaed by the opposing party and questioned
about the documents and communications that defendant’s counsel sent to them, (c) who, based
on the current record, appear to have given no assurances of maintaining confidentiality, and (d)
whose documents and communications presumably could be obtained via FOIA requests. On
these facts, the Court concludes that the disclosure substantially increased the opportunities for
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potential adversaries to obtain the information, which was readily foreseeable at the time the
disclosures were made.
The two primary cases cited by defendant are distinguishable. The opinion of the trial
court in Inst. for Dev. of Earth Awareness v. People for Ethical Treatment of Animals, 272
F.R.D. 124, 125 (S.D.N.Y. 2011), does not address the question of waiver. As for Judge
Underhill’s decision in Lavatec Laundry Tech., GmbH v. Lavatec, Inc., No. 3:13-cv-00056
(SRU), 2014 WL 1665018, at *3 (D. Conn. Apr. 25, 2014), the facts were inapposite insofar as
the third-party witness was a private party and was allied with the disclosing party, such that the
court found that the disclosure did not substantially increases the opportunity for potential
adversaries to obtain the information. Defendant also cites Plew v. Ltd. Brands, Inc., No. 08-cv3741 (LTS)(MHD), 2009 WL 1119414, at *3 (S.D.N.Y. Apr. 23, 2009) but, there again, the
court found no work product waiver because the third party’s interest was “aligned” with the
disclosing party, and so it could “not [be] reasonably viewed as a conduit to a potential
adversary.”
There are two other assertions in defendant’s letter motion that warrant comment. First,
defendants argue that plaintiff has no merits-based purpose for discovering the information
exchanged between defendant’s counsel and the government witnesses but, instead, merely
wants to gain a strategic advantage. See Def. Mtn., Doc. No. 474, at 3 (arguing that “whatever
need Plaintiffs may have to discover facts related to the regulatory process (which is in issue),
they have no need to discover NWNA’s investigation (which is not)”). However, this information
may shed light on the knowledge base, credibility, and potential biases of these witnesses, which
is material here given that (a) defendant’s affirmative defenses cite the decisions of state
regulators as a shield from liability, (b) the witnesses appear to have provided substantive
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responses to questions from defendant’s counsel pertaining to their decision-making, see, e.g.,
Doc. No. 470-1, at 35-37, and (c) defendant has sought affidavits from these witnesses in support
of a potential motion for summary judgment. Accordingly, there are legitimate bases for
plaintiff’s inquiry. Second, defendant contends that not only should plaintiff be precluded from
discovering the written materials, but also that plaintiff should be foreclosed from asking
deposition questions about the information that the witnesses exchanged with defendant’s
counsel. See Def. Mtn., Doc. No. 474, at 3 (arguing that “because work product ‘may also
encompass deposition testimony concerning the substance of that work-product,’ Ice Cube Bldg.,
LLC v. Scottsdale Ins. Co., No. 3:17-cv-973 (KAD), 2019 WL 2323890, at *4 (D. Conn. May 31,
2019), the Court should foreclose the inquiry”). This argument illustrates the far-reaching
impacts if defendant’s communications to/from third-party state regulators, whose decisions are
the foundation of certain defenses, were cloaked with work product protection. Defendant would
obtain not merely protection of written materials but also the potential ability to influence,
without scrutiny, the testimony of third parties that defendant is holding out as independent and
authoritative. That cannot pass. As Judge Rakoff observed when addressing a party’s sharing of
work product with a third-party witness in preparation for his deposition by the opposing party:
“The ability of a party to meet with a non-party witness, show him documents and ask him
questions, and then mask the entire preparation session in the cloak of work product protection
would serve to facilitate even the most blatant coaching of a witness if it could not be the subject
of inquiry. To allow the invocation of work product protection to succeed in such circumstances
would leave the party taking a deposition with no remedy to determine how, if at all, a witness’s
testimony was influenced, not by advice from the witness’s own counsel, but by suggestions
from the questioner’s adversary . . . .” S.E.C. v. Gupta, 281 F.R.D. 169, 173 (S.D.N.Y. 2012)
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(finding waiver by disclosure). The Court does not suggest that the communications with the
third-party witnesses was improper; however, plaintiffs are certainly entitled to explore whether
their anticipated testimony in this matter has been shaped or influenced in any way through their
exchanges with defendant or its counsel.
2. At issue waiver
Furthermore, separate from waiver by disclosure, courts have also found “at issue”
waiver of work product protection where the materials are directly pertinent to facts asserted by
the party, such that withholding the protected materials would be unfair. “[I]n certain
circumstances a party’s assertion of factual claims can, out of considerations of fairness to the
party’s adversary, result in the involuntary forfeiture of privileges for matters pertinent to the
claims asserted. . . . We have said that this kind of unfairness may arise when a party[ ]
advance[es] a claim to a court or jury (or perhaps another type of decision maker) while relying
on its privilege to withhold from a litigation adversary materials that the adversary might need to
effectively contest or impeach the claim.” New York Times Co. v. United States Dep’t of Justice,
939 F.3d 479, 495 (2d Cir. 2019) (citations and quotation marks omitted); see, e.g., United States
v. Nobles, 422 U.S. 225, 241 (1975) (in criminal case, precluding defendant’s investigator from
testifying about credibility of prosecution witnesses without first disclosing his contemporaneous
written observations). Because defendant, in its affirmative defenses, seeks refuge in the
independent conclusions of government regulators, it cannot fairly prevent plaintiff from
examining whether that putative independence or their recollection of the underlying decision
was influenced by documents and communications sent to the government witnesses by
defendant’s counsel, including draft affidavits in which defendant’s counsel sought to marshal
the facts for the witnesses’ review. In short, all information that defendant exchanged with the
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state regulators regarding the regulatory decisions cited in the affirmative defenses are relevant
subjects of inquiry. Having put such information at issue, defendant cannot fairly withhold it.
B. Subpoena requests
Turning to defendant’s motion to quash, the Court lacks jurisdiction to adjudicate
defendant’s motion to quash the subpoenas served on deponents in Maine, New Hampshire, New
Jersey, and Rhode Island. A motion to quash must be brought in the district where compliance is
required.2 Fed. R. Civ. P. 45(d)(3)(A). Some of the above-listed subpoenas are for in-person
depositions, which are clearly not in this district. As for depositions to be taken via Zoom, the
Court deems the place of compliance to be where the deponent is located, which again is not in
this district. See, e.g., Russell v. Maman, No. 18-cv-6691-RS (AGT), 2021 WL 3212646, at *1
(N.D. Cal. July 29, 2021); cf. Broumand v. Joseph, 522 F. Supp. 3d 8, 23 (S.D.N.Y. 2021)
(quashing subpoena for remote hearing testimony after deeming place of compliance to be the
location of the hearing).
There is only one subpoena (Greene) that calls for compliance in this district. In addition
to deposition testimony, that subpoena seeks “All communications between (a) Frank Greene or
the Connecticut Department of Consumer Protection and (b) Defendant Nestle Waters North
America Inc. or its counsel relating to (i) the anticipated subject matter of Mr. Greene’s
deposition or questioning by either Defendant or Plaintiffs; and (ii) the existence of, proceedings
in, or subject matter or merits of, this lawsuit.” Based on the above analysis, the Court overrules
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Defendant’s motion to quash the subpoena requests cannot be recharacterized as a motion for
protective order to avoid the location rule. Whereas a party has standing to move to quash a
subpoena to prevent third-party disclosure of information in which the party has a privacy
interest, including protected work product, see GEOMC Co. v. Calmare Therapeutics, Inc., No.
3:14-cv-1222 (VAB), 2020 WL 6375562, at *5 (D. Conn. Oct. 30, 2020), a motion for protective
order may only be brought by “the party from whom discovery is sought. See Fed. R. Civ. P.
26(c).
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defendant’s claim of work product protection as to responsive materials and declines to quash or
modify the Greene subpoena.
C. Conclusion
For all the foregoing reasons, plaintiff’s Motion to Compel (Doc. No. 470) is GRANTED
and defendant’s Motion for Protective Order (raised in Doc. No. 474) is DENIED. Defendant
has waived its claim of work product protection over materials responsive to RFP 51 and RFP
64, and the objection is overruled. As a clarifying note, the requests are self-limited to
documents or communications actually exchanged, so this ruling does not disturb the protection
over work product that defendant has not disclosed to third parties and which is therefore not
responsive to the requests. Defendant shall produce all materials within the scope of this order
on or before October 5, 2022 at 12:00 p.m.
Additionally, defendant’s Motion to Quash (raised in Doc. No. 474) is DENIED WITH
PREJUDICE as to the Greene subpoena and DENIED WITHOUT PREJUDICE as to the other
subpoenas.
This is not a recommended ruling. This is an order regarding case management which is
reviewable pursuant to the “clearly erroneous” statutory standard of review. 28 U.S.C. §
636(b)(1)(A); Fed. R. Civ. P. 72(a); and D. Conn. L. Civ. R. 72.2. As such, it is an order of the
Court unless reversed or modified by the District Judge upon motion timely made.
SO ORDERED, this 4th day of October, 2022, at Bridgeport, Connecticut.
/s/ S. Dave Vatti
S. DAVE VATTI
United States Magistrate Judge
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