Associated Wholesale Grocers, Inc. v. United Potato Growers of America, Inc. et al

Filing 328

ORDER granting in part and denying in part 768 Associated Wholesale Grocers' Sealed Motion in case 4:10-md-02186-BLW-CWD; granting in part and denying in part 302 Associated Wholesale Grocers' Sealed Motion in case 4:13- cv-00251-BLW-CWD.The following Bates stamped documents are subject to disclosure: JWRW 011591 - JWRW 011593; JWRW 012460 - JWRW 012462; JWRW 012464 - JWRW 12466; JWRW 012467 - JWRW 012469; and JWRW 009033. Jones Waldo shall immediately produce th e above documents to AWG. Further, AWG may depose Randon Wilson for an additional three hours relative to documents produced after July 16, 2014, including those compelled by this Order. The Court defers any ruling regarding attorney fees. Signed by Judge Candy W. Dale. Associated Cases: 4:10-md-02186-BLW-CWD, 4:13-cv-00251-BLW-CWD(klw)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

IN RE: FRESH AND PROCESS
POTATOES ANTITRUST LITIGATION

Case No. 4:10-md-2186-BLW-CWD
4:13:cv-00251-BLW

THIS DOCUMENT RELATES TO:

MEMORANDUM DECISION AND
ORDER
RE: ASSOCIATED WHOLESALE
GROCER’S MOTION TO COMPEL
(MDL Dkt. No. 768)

Kansas Tag-Along Action Only
Associated Wholesale Grocers, Inc. v. United
Potato Growers of America, Inc., et al.
No. KS/2:13-CV-2182-LAH

Pending before the Court is Associated Wholesale Grocers’ (AWG) motion to compel
directed at third party Randon Wilson and his law firm, Jones Waldo, in the last of the long and
protracted discovery dispute process that has spanned nearly two years in this complex anti-trust
case. (MDL Dkt. 768.) The parties are commended for following the Court’s directives and the
legal principles governing privilege and waiver, and narrowing the universe of documents
possessed by Jones Waldo and Mr. Wilson, and for which they claimed privilege, from
thousands to 111 remaining disputed documents. See Order, Oct. 27, 2014 (MDL Dkt. 734.)
Jones Waldo submitted all 111 documents to the Court for in camera review to determine
whether its claim of privilege protects the documents from disclosure to AWG. 1 AWG also has
requested the Court to order Randon Wilson to appear for an additional one day, seven hour
deposition, which Jones Waldo opposes.

1

Because of the stay imposed during settlement discussions, direct Purchaser Plaintiffs and
Indirect Purchaser Plaintiffs reserved their respective rights to revisit this issue.

MEMORANDUM DECISION AND ORDER - 1

The parties, including intervenor National Council of Farmer Cooperatives (NCFC), have
briefed the motion and it is ripe for the Court’s review. Given the Court’s familiarity with the
issues and its in camera review, a hearing is not necessary. What follows is the Court’s
disposition of the motion.
DISCUSSION
1.

Documents Withheld
AWG’s memorandum categorizes the 111 documents into seven groups in section II of

its memorandum. Each group of documents is discussed separately, and various arguments are
asserted in support of its motion to compel depending upon the group of documents.
Accordingly, the Court has employed a similar organization.

A.

Section II.A.1 - Handwritten Notes

The Court has reviewed the in camera production of 44 of Mr. Wilson’s
handwritten notes falling within this category. 2 The Court previously instructed that, with
respect to Mr. Wilson’s handwritten notes, anything other than Mr. Wilson’s private
musings not given or communicated to the client must be produced. After in camera
2

JWRW 006258 - JWRW 006263; JWRW 006273 - JWRW 006281; JWRW 006353 - JWRW
006357; JWRW 006371 - JWRW 006375; JWRW 006851 - JWRW 006855; JWRW 006969 - JWRW
006971; JWRW 007148 - JWRW 007152; JWRW 008155 - JWRW 008160; JWRW 008311 - JWRW
008314; JWRW 008356; JWRW 008606 - JWRW 008607; JWRW 010169 - JWRW 010170; JWRW
010228 - JWRW 010231; JWRW 010642 - JWRW 010643; JWRW 010652 - JWRW 010658; JWRW
010662 - JWRW 010663; JWRW 011817 - JWRW 011818; JWRW 011821 - JWRW 011824; JWRW
011891 - JWRW 011900; JWRW 011912; JWRW 011940 - JWRW 011942; JWRW 011946 - JWRW
011948; JWRW 011951 - JWRW 011953; JWRW 011967 - JWRW 011968; JWRW 011980 - JWRW
011986; JWRW 012267 - JWRW 012271; JWRW 012281; JWRW 012313 - JWRW 012314; JWRW
012471 - JWRW 012474; JWRW 012736; JWRW 013045 - JWRW 013046; JWRW 013053 - JWRW
013055; JWRW 013549; JWRW 013842 - JWRW 013846; JWRW 013902 - JWRW 013903; JWRW
013949; JWRW 013955; JWRW 014036; JWRW 014115 - JWRW 014116; JWRW 015934 - JWRW
015938; JWRW 016221; JWRW 016317; JWRW 016447 - JWRW 16449; JWRW 018594 - JWRW
018597.

MEMORANDUM DECISION AND ORDER - 2

review, the Court is satisfied that all 44 documents are protected from disclosure. The
documents reflect to-do lists, diagrams, random thoughts, and Mr. Wilson’s mental
impressions, thought process, and analysis. In other words, these documents are private
musings. All 44 documents are appropriately withheld as work product; it does not
appear from the face of the notes themselves that any of the notes or their contents were
communicated to a client.
B.

Section II.A.2 – Shared Documents

Here, AWG is challenging ten documents it argues were shared by Mr. Wilson
with Defendants or among Defendants, or communicated to privilege-waiving
Defendants. In response, Jones Waldo divided this collection of documents into five
documents responsive to the arguments in section II.A.2 of AWG’s brief, and discussed
the other five redacted documents in Section III of its response. Accordingly, the Court
has done the same here, and will discuss the redacted documents in Section III.
Jones Waldo contends five documents were withheld on the grounds they reflect
legal advice provided to Defendants in this litigation. 3
After in camera review, the Court is satisfied that one of the five documents
withheld on the grounds of attorney-client privilege was properly withheld. JWRW
012463 is an email communication from Mary Russell, a Jones Waldo staff member,
transmitting a confidential client communication to Mr. Wilson. The email is protected
3

The five documents within this category are Bates stamped as follows: JWRW 011591 - JWRW
011593; JWRW 012460 - JWRW 012462; JWRW 012463; JWRW 012464 - JWRW 12466; JWRW
012467 - JWRW 012469.

MEMORANDUM DECISION AND ORDER - 3

attorney-client communication. See Himmelfarb v. U.S. 175 F.2d 924, 939 (9th Cir. 1949)
(where presence of third party, such as attorney’s secretary, is indispensable to delivery
of legal advice, privilege is not waived).
However, JWRW 012460 - JWRW 012462, a letter provided to UPGA’s
accountants dated September 15, 2010, and JWRW 011591 - JWRW 011593, a later,
almost identical letter provided to UPGA’s accountants dated September 23, 2011, and
two prior drafts of the same letter, JWRW 012464 - JWRW 12466 and JWRW 012467 JWRW 012469, are letters mailed to and shared with UPGA’s accountants. Mr. Lee
Frankel, the President and CEO of UPGA, requested that Jones Waldo provide UPGA’s
accountants with information. Granted, the information in the letter discusses information
about this litigation. But, the information was freely shared with UPGA’s accountants,
and therefore the privilege was waived because it was shared with third parties. Chevron
Corp., 974 F.2d at 1162 (voluntary disclosure of privileged attorney communication to a
third party constitutes waiver of privilege, citing Weil v. Investment/Indicators, Research
& Mgt., 647 F.2d 18, 24 (9th Cir. 1981)); see also Himmelfarb, 175 F.2d at 939 (matters
client authorized attorney to disclose to client’s accountant were not protected by
attorney-client privilege); Roberts v. Fearless Farris Serv. Stations, Inc., No. CV05-472S-EJL, 2007 WL 625423 *4 (D. Idaho Feb. 23, 2007) (“Federal law does not recognize
an accountant-client privilege,” citing Couch v. United States, 409 U.S. 322, 334 (1973)).
These four documents are subject to disclosure.

MEMORANDUM DECISION AND ORDER - 4

C.

Section II.A.3 – Notes Regarding DOJ

Here, AWG challenges six of Mr. Wilson’s handwritten notes that reflect topics
allegedly discussed with the Department of Justice and Defendants. 4 After in camera
review, the Court has determined that, from the face of these notes, it is evident none of
the information contained within the handwritten notes was actually communicated with
or to Defendants. The documents do not contain information shared between DOJ and
Defendants. Rather, they all appear to be personal notes Mr. Wilson wrote to himself, or
to the file. The documents are properly withheld as attorney work-product.
D.

Section II.B – UPGA Audit Documents

AWG challenges six documents in this category allegedly related to an audit of
UPGA’s Capper-Volstead compliance, which was initiated prior to the filing of this
litigation. 5 After in camera review, the Court has concluded the representations
concerning the character of the documents set forth in Jones Waldo’s brief are accurate.
Three documents clearly reflect legal advice given to Defendants in this litigation, and
are not subject to the advice of counsel privilege waiver. Another document is a
communication between Mr. Wilson and the Director of United Potato Growers of
Wisconsin, which is not a Defendant in this lawsuit. United Potato Growers of Wisconsin
has not waived its privilege. And finally, two documents are internal communications
4

JWRW 011806 - JWRW 011807; JWRW 012075; JWRW 012087 - JWRW 012088
[REDACTED]; JWRW 012087 - JWRW 012088 [UNREDACTED]; JWRW 012155; JWRW 012478 JWRW 012498; JWRW 012545 - JWRW 012546.
5

The notes and documents are Bates stamped JWRW 011594; JWRW 011595; JWRW 011633 JWRW 011634; JWRW 011635 - JWRW 011636; JWRW 011637; JWRW 011638 - JWRW 011641.

MEMORANDUM DECISION AND ORDER - 5

about legal strategy between members of the Jones Waldo firm, and are thus attorney
work product. The documents were properly withheld.
E.

Section II.C.1 – Documents Shared with Donald Barnes

In this category, there are seven documents AWG contends were shared with
third-party attorney Donald Barnes and should be disclosed. 6 Jones Waldo maintains
these seven documents are protected by the work-product and common-interest doctrine
of the attorney-client privilege, explaining Donald Barnes was retained by the Defendant
cooperatives for his assistance in responding to the Department of Justice Civil
Investigative Demand. Mr. Wilson attests that UPGI, a Defendant here, engaged Mr.
Barnes in the summer of 2009 for his assistance in responding to the DOJ’s Civil
Investigative Demand, and the Defendant cooperatives engaged Mr. Barnes at the
beginning of their defense of this lawsuit until Anderson Banducci assumed their defense.
Aff. of Wilson ¶ 7 (Dkt. 779-1 at 16.)
There are three documents Jones Waldo contends are protected by the common
interest privilege. (JWRW 012290, JWRW 012291 - JWRW 012311, JWRW 016390 JWRW 016391.) The common interest privilege, or joint defense privilege, is an
extension of the attorney client privilege. U.S. v. Gonzalez, 669 F.3d 974, 978 (9th Cir.
2012). The privilege applies if “(1) the communication is made by separate parties in the
course of a matter of common [legal] interest; (2) the communication is designed to
6

The notes and documents are Bates stamped JWRW 010908 - JWRW 010912, JWRW 011965 JWRW 011966, JWRW 012007, JWRW 012243 - JWRW 012247, JWRW 012290, JWRW 012291 JWRW 012311, JWRW 016390 - JWRW 016391.

MEMORANDUM DECISION AND ORDER - 6

further that effort; and (3) the privilege has not been waived.” Nidec Corp. v. Victor Co.
of Japan, 249 F.R.D. 575, 578 (N.D.Cal. 2007).
The rationale for the rule is to allow “persons who share a common interest in
litigation [to] be able to communicate with their respective attorneys and with each other
to more effectively prosecute or defend their claims.” In re Grand Jury Subpoenas, 902
F.2d 244, 249 (4th Cir. 1990). Although the privilege is not limited to situations in which
litigation has commenced or is in progress, there must be some common legal effort in
furtherance of anticipated litigation. In re Grand Jury Subpoenas, 902 F.2d at 249; U.S. v.
Schwimmer, 892 F.2d 237 244 (2nd Cir. 1989); Gonzalez, 669 F.3d at 980; Nidec Corp.
v. Victor Co. of Japan, 249 F.R.D. 575, 578 (N.D.Cal. 2007). The doctrine does not,
however, extend to communications about a joint business strategy that happens to
include a concern about litigation. FSP Stallion 1, LLC v. Luce, 201 WL 3895914 *18 (D.
Nev. Sept. 30, 2010).
Based upon in camera review, the Court concludes all three documents meet the
elements of the attorney-client privilege, and those of the common interest doctrine. The
Court is satisfied the documents were properly withheld. From the face of the documents,
it is readily apparent the communications between Mr. Barnes and Mr. Wilson were
designed to further the joint litigation strategy of both attorneys’ clients in the face of
actual, threatened legal action from the DOJ. It does not appear these three documents
were shared beyond Mr. Wilson and Mr. Barnes. Further, the documents discuss
litigation strategy by the two lawyers on behalf of their respective clients, both of whom
were facing the threat of DOJ action.
MEMORANDUM DECISION AND ORDER - 7

As to the remaining four documents, Jones Waldo claims work-product protection
and again the common interest doctrine. The Court previously explained that documents
analyzing the law, facts, or trial strategy of the case reflecting the attorney’s mental
impressions but that were not given to the client fall outside of the waiver effected by the
advice-of-counsel defense here. Informatica Corp. v. Business Objects Data Integration,
Inc., 454 F.Supp.2d 957, 964 (N.D. Cal. 2006).
Again, the Court’s independent in-camera review of the four documents falling
within this subcategory has convinced the Court the documents are protected by either
the work-product privilege or common-interest doctrine. The documents were shared
among Mr. Wilson and Mr. Barnes in furtherance of the respective clients’ joint litigation
strategy under the threat of a DOJ lawsuit. This conclusion is apparent from the plain text
of the documents themselves. Further, it does not appear the documents were shared with
third parties.
All seven documents falling within this category were properly withheld.
F.

Section II.C.2 – NCFC Documents

AWG challenges the assertion of privilege over thirty-seven documents 7 on the
grounds that privilege was waived because the documents were shared with NCFC

7

JWRW 010660; JWRW 010666 - JWRW 010669; JWRW 011809; JWRW 011810 - JWRW
011811; JWRW 011864; JWRW 011865; JWRW 011888 - JWRW 011889; JWRW 011938 - JWRW
011939; JWRW 011944 - JWRW 011945; JWRW 011949 - JWRW 011950; JWRW 011957 - JWRW
011958; JWRW 011960; JWRW 011961; JWRW 011962 - JWRW 011963; JWRW 011964; JWRW
012056; JWRW 012076 - JWRW 012081; JWRW 012090; JWRW 012111 - JWRW 012137; JWRW
012156; JWRW 012172; JWRW 012173; JWRW 012202; JWRW 012203; JWRW 012223; JWRW
012241 - JWRW 012242; JWRW 012286; JWRW 012312; JWRW 012316 - JWRW 012317; JWRW
012318 - JWRW 012320; JWRW 012475 - JWRW 012477; JWRW 012536 - JWRW 012538; JWRW

(Continued)
MEMORANDUM DECISION AND ORDER - 8

attorneys. AWG argues Mr. Wilson was not acting as NCFC’s attorney, and because
NCFC general counsel Marlis Carson sought legal advice outside of NCFC, any privilege
was waived. NCFC, intervenor in this discovery dispute, submitted a separate brief
outlining its position. NCFC asserts it owns the privilege, it has not waived any
applicable privilege, and that the group of attorneys from which NCFC general counsel
Marlis Carson sought advice was formed from NCFC membership attorneys. All of the
attorneys with whom Ms. Carson communicated were part of NCFC’s Legal and Tax
Advice (LTA) working committee, and the attorneys forming this committee provided
NCFC with legal advice and strategy to combat DOJ’s investigation into the practices of
NCFC member cooperatives, which were not limited to the potato cooperatives.
The Court has reviewed all thirty seven documents in camera, as well as its
October 27, 2014 Order. (MDL Dkt. 734.) The Court outlined the scope of discovery visa-vis Defendants’ advice of counsel defense. The Court articulated that documents and
communications touching upon Defendants’ organization under the antitrust laws, and
specifically Capper-Volstead, as well as the greater universe of communications
concerning Defendants’ conduct for which Defendants sought counsel’s advice, must be
produced. This group of documents certainly does fall into this general concept. But,
none of the thirty-seven documents, which are mostly emails and research compilations,

012541; JWRW 012547 - JWRW 012548 [REDACTED]; JWRW 012547 - JWRW 012548
[UNREDACTED]; JWRW 012549 [REDACTED]; JWRW 012549 [UNREDACTED]; JWRW 012550 JWRW 012551 [REDACTED]; JWRW 012550 - JWRW 012551 [UNREDACTED]; JWRW 020598 JWRW 020599.

MEMORANDUM DECISION AND ORDER - 9

are relevant to Defendants’ state of mind in this case, which the Court explained was the
relevant inquiry here. None of the emails appears to have been shared beyond the group
of LTA attorneys, which apparently banded together to assist NCFC with its own legal
position to combat DOJ’s investigation into various cooperative organizations who
happened also to be NCFC members.
Second, the Court noted in its October 2014 order that, on the basis of the
privilege log, it was “not clear that documents related to NCFC would be protected from
disclosure, … to the extent there was no actual, threatened, or impending litigation
affecting NCFC for which Mr. Wilson provided advice.” Upon review of the documents
and email exchanges, it is apparent from the context that Mr. Wilson, and other members
of the LTA who were themselves attorneys, were providing legal advice to and
discussing legal strategy with NCFC general counsel Marlis Carson. The legal strategy
did not relate specifically to Mr. Wilson’s clients, nor to any other LTA attorney’s client.
Rather, the legal strategy was NCFC’s strategy, and not necessarily that of its members.
While the potato industry was certainly represented, there were other industries NCFC
represented as well, and this appears to have been a collective NCFC strategy on behalf
of itself and its members.
Finally, the Court finds the assessment of the district court in In re Processed Egg
Prods. Antitrust Litigation, MDL No. 08-2002, 2014 WL 6388436 (E.D. Pa. Nov. 17,
2014), persuasive. There, the court grappled with the scope of the attorney-client
privilege when trade associations asserted the privilege. The court analogized trade
associations with corporations, and applied the principles of Upjohn Co. v. United States,
MEMORANDUM DECISION AND ORDER - 10

449 U.S. 383 (1981), when it determined there may be scenarios in which trade
associations may properly assert privilege over confidential communications made
between its attorneys and its members concerning legal advice for the association. 2014
WL 6388436 at *11. The court explained there was no blanket privilege, but the
communications must be within the scope of the attorney-associational client
relationship, which in turn required analysis into the content and context of the
communications between counsel for the association and its members. Id.
The court elaborated, noting that “if the communications were within the attorneyassociational client relationship—that is, if the communications were attorney advice
within the scope of the member’s role within the association and given for the sake of
advising the association—then the privilege would belong to” the association. Id. at *12.
Finally, the court added a caveat. If the association communicated with a member’s
attorney, that outside attorney-member must be wearing her “association membership”
hat, not her “in-house counsel” hat, for the privilege to protect the communication. Id. see
also In re Plasma-Derivative Protein Therapies Antitrust Litigation, No. 09-C-7666,
2003 WL 791432 *3 (N.D. Ill. Mar. 4, 2013) (explaining that the analysis of whether
communications between the association’s counsel and its member company
representatives are protected legal advice must be made on a case-by-case-basis).
Here, NCFC explains it has not shared any of the communications initiated by its
general counsel Marlis Carson, or those shared among the LTA working group attorney
members and forwarded or copied to Ms. Carson, with any third party. Further, it appears
from the context of all thirty-seven communications or documents that the LTA group, all
MEMORANDUM DECISION AND ORDER - 11

of whom were attorneys and whose clients were members of NCFC, were wearing their
LTA-NCFC hats, not that of their respective client, when they rendered advice to NCFC.
And, all thirty-seven communications or documents relate to NCFC’s legal strategy on
behalf of all its members given the threat of DOJ litigation against its agricultural
cooperative members.
Accordingly, the Court finds the attorney-client privilege appropriately asserted by
NCFC as to communications between and among NCFC general counsel Marlis Carson,
and the lawyer-members comprising the LTA and advising NCFC. The Court therefore
finds it unnecessary to consider NCFC’s additional arguments asserting estoppel and
First Amendment protection.
G.

Section II.C.3 – Steve Ottum Email

Here, there is one email exchange dated September 4, 2006, between Steve Ottum
of Potandon and Mr. Wilson. (JWRW 009033). AWG argues the attorney-client privilege
is inapplicable because Potandon was not Mr. Wilson’s client. Potandon submitted a
separate response brief addressing this email communication, asserting that Mr. Ottum
sought legal advice from outside counsel of his choosing, in this instance Mr. Wilson, for
the purpose of securing legal advice on behalf of Potandon. Decl. of Ottum ¶ 4 (Dkt. 7782 at 2.) Potandon argues it has never asserted the advice of counsel defense in this
lawsuit, and Mr. Ottum’s subjective belief that an attorney-client relationship existed is
sufficient to assert the privilege.
The attorney-client privilege exists where: “(1) [ ] legal advice of any kind is
sought (2) from a professional legal adviser in his capacity as such, (3) the
MEMORANDUM DECISION AND ORDER - 12

communications relating to that purpose, (4) made in confidence (5) by the client, (6) are
at his instance permanently protected (7) from disclosure by himself or by the legal
adviser, (8) unless the protection be waived.” United States v. Richey, 632 F.3d 559, 566
(9th Cir.2011) (internal citations omitted). Because these privileges are being asserted in
a federal question case, federal common law governs the scope of the privilege, not Idaho
law. Buckner v. U.S, CV 94-491-N-EJL, 1995 WL 687055 (D. Idaho Oct. 10, 1995). 8
“The fact that a person is a lawyer does not make all communications with that person
privileged.” U.S. v. Ruehle, 583 F.3d 600, 607 (9th Cir. 2009) (quoting United States v.
Martin, 278 F.3d 988, 999 (9th Cir. 2002)). Under federal law, the attorney-client
privilege is strictly construed. Id. at 609. “[A] party asserting the attorney-client privilege
has the burden of establishing the [existence of an attorney-client] relationship and the
privileged nature of the communication.” U.S. v. Graf, 610 F.3d 1148, 1156 (9th Cir.
2010).
Mr. Ottum, on behalf of Potandon, sought legal advice on four matters, and
expected his communication to be confidential. Decl. of Ottum ¶ 4 (Dkt. 778-2 at 2.)
However, there is no evidence of a formal attorney-client relationship between Potandon

8

Accordingly, Potandon’s citations to this Court’s decisions in Storfer v. Dwelle, 3:12–cv–
00496–EJL, 2014 WL 3965033 (D. Idaho Aug. 13, 2014) and Swensden v. Corey, 2011 WL 1458441, *3
(D. Idaho 2011), which relied upon Idaho law, do not apply. Under Idaho law, absent assent by both
attorney and client to an attorney client relationship, the analysis hinges upon whether the client’s
subjective belief that such a relationship existed was reasonable. Swensden, 2011 WL 1458441 at *3. The
Ninth Circuit has rejected that approach when the matter involves a federal question. Ruehle, 583 F.3d at
608 (reversing district court’s decision applying “reasonable belief” standard under California law to
alleged privileged communications between individual and lawyer in federal question case).

MEMORANDUM DECISION AND ORDER - 13

and Mr. Wilson. 9 Mr. Ottum sought consultative advice from an attorney who was not
hired to represent Potandon. Therefore, Potandon has not carried its burden that an
attorney-client relationship existed with Mr. Wilson at the time Mr. Ottum asked his
questions. Moreover, the nature of the email suggests that Mr. Ottum had questions as a
result of a meeting 10 he attended a few weeks prior. Thus, although the advice sought
pertained directly to Potandon’s operations, the impetus for the questions was Mr.
Ottum’s attendance at a meeting which prompted follow up questions. The document is
therefore not protected from disclosure.
H.

Section III – Redacted Documents

Five redacted documents fall under this subcategory. 11 AWG contends these five
documents are part of the larger set of ten discussed above in Section II.A.2, and are
subject to disclosure because the emails were communicated among privilege waiving
Defendants. Jones Waldo, however, is now unable to locate the five unredacted
documents, and does not recall what lies behind the redactions. Jones Waldo argues that
AWG, as well as other Plaintiffs, have possessed the five documents in redacted form for
9

Potandon again cited inapplicable authority to support its contention that formal retention of an
attorney is not required for the attorney-client privilege to apply. Potandon cited Waggoner v. Snow,
Becker, Kroll, Klaris & Krauss, 991 F.2d 1501, 1505-06 (9th Cir. 1993), which held that, under New
York and California state law, a formal contract is not necessary for the court to find formation of an
attorney-client relationship. As the Court explained in footnote 6, supra, the Ninth Circuit has rejected
that approach when the case involves a question of federal law, like the case here, brought under the
Sherman Antitrust Act.
10

The email does not reference what meeting Mr. Ottum attended, or who else was present other
than Mr. Wilson.
11

JWRW 005818, JWRW 005819 - JWRW 005820, JWRW 006053 - JWRW 006054, JWRW
009348, JWRW 009682 - JWRW 009683.

MEMORANDUM DECISION AND ORDER - 14

nearly two years, and until now, no challenge to the redactions has been made. Thus,
Jones Waldo argues that requiring it to manually search through the several dozen banker
boxes potentially containing the unredacted emails amounts to an undue burden.
Essentially, Jones Waldo is seeking a protective order pursuant to Fed. R. Civ. P.
26(c)(1). Rule 26(c)(1) permits a party to move for a protective order upon a showing of
good cause to protect that party or person from undue burden or expense. One remedy is
to preclude the disclosure or discovery. Fed. R. Civ. P. 26(c)(1)(A).
In the context of this case, the Court precludes disclosure. AWG has had the five
documents in its possession for two years. The redactions are clearly noted on the
documents. At this stage in the discovery process, it is too late for the Court to order
Jones Waldo to incur the time and expense of looking for what amounts to a needle in a
haystack. Although the Court is not necessarily inclined to agree with Jones Waldo’s
characterization of the documents as “inconsequential,” upon reviewing the documents
the Court is not left with an overwhelming concern that Jones Waldo is concealing the
“smoking gun” in this litigation. The redactions have been apparent for two years, AWG
can likely place the communications in context with the other thousands of documents
and emails already produced. The Court is not condoning Jones Waldo’s inability to
locate the original documents or the process utilized to Bates stamp the documents, but,
because the parties are well past the point of diminishing returns, will accept Jones
Waldo’s representations in its memorandum as truthful.
AWG’s motion is denied with regard to the five redacted documents.

MEMORANDUM DECISION AND ORDER - 15

2.

Deposition of Mr. Wilson
AWG argues an additional seven hours of deposition is warranted because of Mr.

Wilson’s failure to disclose 2,676 documents until after his July 16, 2014 deposition, and
the close of discovery. AWG provides a recap of the disclosure history. The initial
subpoena duces tecum Plaintiffs served upon Randon Wilson on November 16, 2012,
sought documents relevant to certain cooperative Defendants’ good-faith reliance on
counsel defense. On June 26, 2013, the Court ordered Randon Wilson and his law firm,
Jones Waldo, to update his privilege log and produce all responsive documents created
before November 16, 2012. Disputes arose about the scope of Defendants’ privilege
waiver. On April 11, 2014, the Court issued an order clarifying the scope of certain
Defendants’ waiver of privilege, and Judge Winmill affirmed the Order on May 8, 2014.
Mr. Wilson then produced 1,159 documents, and continued to withhold 3,200. On July 2,
2014, at the direction of privilege waiving Defendants, Jones Waldo produced to AWG
approximately 1,250 additional documents, and another 122 documents were produced
on the afternoon of July 16, 2014, during Mr. Wilson’s deposition.
On September 8, 2014, Direct Purchaser and Indirect Purchaser Plaintiffs filed a
motion to compel directed at Defendants and Randon Wilson, which motion was joined
by AWG. Mr. Wilson then produced 453 documents. On October 27, 2014, the Court
entered an order providing guidance on the four broad bases for withholding the
remaining documents and instructed the parties to meet and confer again. At that time,
only 1,076 challenged documents remained on Jones Waldo’s privilege log. On

MEMORANDUM DECISION AND ORDER - 16

December 22, 2014, Jones Waldo produced an additional 806 documents and a revised
privilege log. In January of 2015, another 26 documents were produced.
Because of the piecemeal nature of document production, its occurrence after the
July 16, 2014 deposition, and Mr. Wilson’s pivotal role in advising certain Defendants in
this case, AWG contends that the seven hour deposition permitted under the Court’s
discovery order was insufficient. AWG asserts it has been deprived of the opportunity to
examine Mr. Wilson about the advice he gave to the cooperative Defendants, advice
which is material to Defendants’ advice-of-counsel defense.
Jones Waldo contends, however, that it was not until after the conclusion of the
July 16, 2014 deposition that Plaintiffs, including AWG, expressed any objection to the
July 2, 2014 document disclosure or the length of the deposition. Additionally, Jones
Waldo objects because it was not until July 21, 2014, that Class Plaintiffs emailed Jones
Waldo claiming many of the remaining documents on Jones Waldo’s privilege log should
be produced. In essence, Jones Waldo contends that, had it known earlier, it would have
reviewed and responded to the request prior to Mr. Wilson’s deposition. Jones Waldo
offered to make Mr. Wilson available to AWG for an additional two hours of deposition,
limited to questioning related to documents produced after July 16, 2014. All Defendants
agreed to the proposal, but AWG did not.
At issue here is Defendants’ state of mind in relation to their advice-of-counsel
defense. The parties knew, well in advance and at the time the Court entered its discovery
order, of the complex nature of the case, Mr. Wilson’s role in advising the cooperative
Defendants, and the mountain of documents involved. Given the lack of any objection to
MEMORANDUM DECISION AND ORDER - 17

the Court’s discovery order limiting Mr. Wilson’s deposition to seven hours and the
failure to raise the insufficiency of the Court’s limitation, the Court concludes that an
additional seven hours of deposition is unwarranted. Additionally, AWG has had in its
possession numerous documents produced by Defendants relevant to their advice-ofcounsel defense.
But, the Court concludes also that AWG has shown good cause for some
additional time because of the later production of documents Jones Waldo continued to
withhold. The Court is familiar with the types of documents requested and produced, and
the information the documents likely contain, at this point in the litigation. Given its
familiarity, the Court concludes three hours is sufficient. The deposition will be limited to
questioning Mr. Wilson about the documents produced after July 16, 2014.

CONCLUSION
For the above reasons, the motion will be granted in part and denied in part. The
following Bates stamped documents are subject to disclosure: JWRW 011591 - JWRW
011593; JWRW 012460 - JWRW 012462; JWRW 012464 - JWRW 12466; JWRW
012467 - JWRW 012469; and JWRW 009033. Jones Waldo shall immediately produce
the above documents to AWG. Further, AWG may depose Randon Wilson for an
additional three hours relative to documents produced after July 16, 2014, including those
compelled by this Order. The Court defers any ruling regarding attorney fees.

MEMORANDUM DECISION AND ORDER - 18

ORDER
NOW THEREFORE IT IS HEREBY ORDERED:
1)

Plaintiff Associated Wholesale Grocers, Inc.’s Motion to Compel (MDL
Dkt. 768) is GRANTED IN PART AND DENIED IN PART.

March 17, 2015

MEMORANDUM DECISION AND ORDER - 19