CYPHERT et al v. THE SCOTTS MIRACLE-GRO COMPANY et al

Filing 12

ORDER - In February 2012, Scotts Miracle-Gro Company ("Scotts") pleaded guilty to one count of pesticide misuse in the Southern District of Ohio. See In re Morning Song Bird Food Litig., 831 F.3d 765, 769 (6th Cir. 2016) (summarizing cri minal proceedings). As part of its guilty plea, Scotts admitted that it had used unapproved pesticides in producing its bird feed products, including a pesticide labeled "toxic to birds and other wildlife." Information at 4, United State s v. The Scotts Miracle-Gro Co., 2:12-cr-00024-JLG (S.D. Ohio Jan. 25, 2012). A class action lawsuit followed in June 2012 in the Southern District of California, alleging violations of federal racketeering laws and a variety of state consumer pro tection statutes for selling the tainted bird feed. See In re Morning Song, 320 F.R.D. 540, 543-44 (S.D. Cal. 2017) (summarizing claims and certifying class). The Court concludes that special circumstances exist warranting transfer of Plaintiffs&# 039; motions to compel to the Southern District of California where the underlying litigation remains pending. The Court therefore SUSTAINS Plaintiffs' objections to the Magistrate Judge's R&R in 1:17-mc-00078-JMS-TAB and GRANTS IN PART Plaintiffs' motions in 1:17-mc-00078-JMS-TAB and 1:18-mc-00016-JMS-TAB. The Court directs the Clerk to TRANSFER both matters to the United States District Court for the Southern District of California for further proceedings. (SEE ORDER). Signed by Judge Jane Magnus-Stinson on 4/25/2018.(APD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
In Re:

)
)
MORNING SONG BIRD FOOD LITIGATION )
Jeff Medley,
)
Subpoeanant.
)
)
Glenn Hegewald,
)
Subpoeanant.
)
)

No. 1:17-mc-00078-JMS-TAB

No. 1:18-mc-00016-JMS-TAB

ORDER
In February 2012, Scotts Miracle-Gro Company (“Scotts”) pleaded guilty to one count of
pesticide misuse in the Southern District of Ohio. See In re Morning Song Bird Food Litig., 831
F.3d 765, 769 (6th Cir. 2016) (summarizing criminal proceedings). As part of its guilty plea,
Scotts admitted that it had used unapproved pesticides in producing its bird feed products,
including a pesticide labeled “toxic to birds and other wildlife.” Information at 4, United States v.
The Scotts Miracle-Gro Co., 2:12-cr-00024-JLG (S.D. Ohio Jan. 25, 2012). A class action lawsuit
followed in June 2012 in the Southern District of California, alleging violations of federal
racketeering laws and a variety of state consumer protection statutes for selling the tainted bird
feed. See In re Morning Song, 320 F.R.D. 540, 543-44 (S.D. Cal. 2017) (summarizing claims and
certifying class).
Discovery disputes stemming from the class action have proliferated in district courts
throughout the country. See, e.g., In re Morning Song, 2017 WL 7512980 (S.D. Fla. 2017); In re
Morning Song, 2017 WL 7512980 (S.D. Ohio 2017); Order, In re Morning Song, No. 2:17-mc230-PMD (D.S.C. July 26, 2017). Two such disputes now pend before this Court. In two
miscellaneous matters, Plaintiffs from the Southern District of California matter move to compel

two deponents residing in this District to answer certain questions about their deposition
preparation. Alternatively, Plaintiffs request that the Court transfer the two motions to the
Southern District of California where the underlying litigation remains pending.

The two

deponents, Jeff Medley in cause number 1:17-mc-00078-JMS-TAB and Glenn Hegewald in cause
number 1:18-mc-00016-JMS-TAB, were at the center of the pesticide issue and were two of the
three employees terminated by Scotts for their actions. Plaintiffs’ motions are fully briefed, as is
Plaintiffs’ objection to the Magistrate Judge’s Report and Recommendation (“R&R”) in Mr.
Medley’s matter. For the reasons set forth below, the Court SUSTAINS Plaintiffs’ objection in
Mr. Medley’s matter and GRANTS IN PART Plaintiffs’ motions to the extent that it
TRANSFERS them to the Southern District of California for further proceedings.
I.
LEGAL STANDARDS
Federal Rule of Civil Procedure 45(c) limits the power of a subpoena to command a
nonparty to attend a deposition to a location “within 100 miles of where the person resides, is
employed, or regularly transacts business in person.” Fed. R. Civ. P. 45(c)(1)(A). Rule 37(a), in
turn, requires that motions to compel discovery from such a nonparty be filed not in the court
where the underlying action is taken, but “in the court where the discovery is or will be taken.”
Fed. R. Civ. P. 37(a)(2). Plaintiffs seek to transfer these matters from this district to the Southern
District of California, where the underlying action pends, pursuant to Rule 45(f). Where, as here,
the subpoenants do not consent to such a transfer, the Court may nonetheless transfer the motions
upon finding “exceptional circumstances.” Fed. R. Civ. P. 45(f).
While the Court ultimately concludes that transfer is appropriate for reasons elaborated
upon below, some orientation to the scope of discovery under the Federal Rules of Civil Procedure
is helpful to understanding the posture of the pending motions. Rule 37 permits a party to move

2

the Court to compel production of documents if the party’s request comports with the scope of
discovery. Fed. R. Civ. P. 37(a)(3)(B)(iv). The scope of discovery is broad, with a “strong public
policy in favor of disclosure of relevant materials.” Patterson v. Avery Dennison Corp., 281 F.3d
676, 681 (7th Cir. 2002). But it is limited from the outset to relevant, “nonprivileged matter” and
to requests which are “proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1).
Evidentiary privileges, such as the work-product and attorney-client privileges claimed in
response to these motions, are narrowly construed because they withhold relevant information
from the trier of fact. See, e.g., Mem’l Hosp. for McHenry Cty. v. Shadur, 664 F.2d 1058, 1061
(7th Cir. 1981).

The attorney-client privilege, designed to encourage open and honest

communication between attorneys and clients, protects “communications made in confidence by
a client and client’s employees to an attorney, acting as an attorney, for the purpose of obtaining
legal advice.” Sandra T.E. v. S. Berwyn Sch. Dist. 100, 600 F.3d 612, 618 (7th Cir. 2010). Workproduct privilege is “intended to prevent a litigant from taking a free ride on the research and
thinking of his [or her] opponent’s lawyer and to avoid the resulting deterrent to a lawyer’s
committing his [or her] thoughts to paper.” United States v. Frederick, 182 F.3d 496, 500 (7th
Cir. 1999). Although outside the ambit of the codified doctrine in Rule 26(b)(3)(A), the common
law work product privilege extends to protect intangible work product, including the “thoughts
and recollections of counsel.” Charles Alan Wright et al., 8 Federal Practice & Procedure § 2024
(3d ed. 2010) (collecting authorities).
The proportionality requirement of Rule 26(b) requires courts to account for a variety of
considerations, including “the totality of the circumstances, weighing the value of the material
sought against the burden of providing it, and taking into account society’s interest in furthering
the truthseeking function in the particular case before the court.” Patterson, 281 F.3d at 681. The

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burden rests on the party resisting discovery to establish the undue burden of the discovery sought
and any claims of privilege as to each portion of withheld testimony. United States v. Evans, 113
F.3d 1457, 1461 (7th Cir. 1997) (“The party seeking to invoke the privilege bears the burden of
proving all of its essential elements.”); United States ex rel. Robinson v. Ind. Univ. Health Inc.,
2015 WL 3961221, at *5 (S.D. Ind. 2015) (“A party resisting discovery on the basis of undue
burden must show with specificity that the discovery requests are issue are objectionable.”)
(collecting cases). While nonparty status is a “significant factor” in the proportionality analysis,
nonparties still must demonstrate “significant expense” before receiving protection from
discovery. Keaton v. Hannum, 2013 WL 4481889, at *1 (S.D. Ind. 2013). And protection against
undue burden may take many forms short of a prohibition on additional discovery. E.g., Fed. R.
Civ. P. 26(c)(1) (detailing several options at court’s disposal “to protect a party or person from . .
. undue burden or expense”).
“District courts have broad discretion in discovery matters,” Packman v. Chi. Tribune Co.,
267 F.3d 628, 646 (7th Cir. 2001), and this discretion extends to decisions to transfer a discovery
motion under Rule 45(f), see, e.g., Crawford-El v. Britton, 523 U.S. 574, 599 (1998) (noting that
the Federal Rules of Civil Procedure vest district courts with the discretion to “manage the
discovery process to facilitate prompt and efficient resolution of the lawsuit”); cf., e.g., Stewart
Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988) (emphasizing district court’s discretion to
consider totality of the circumstances for transfers of civil cases under § 1404(a)); Research
Automation, Inc. v. Schrader-Bridgeport Int’l, Inc., 626 F.3d 973, 977-78 (7th Cir. 2010) (same).
The Court may consider all reasonable evidence in considering a discovery motion without regard
to the “formalities” of evidentiary rules. Nat’l Util. Serv., Inc. v. Nw. Steel & Wire Co., 426 F.2d
222, 225 (7th Cir. 1970).

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II.
BACKGROUND
These two discovery disputes stem from the class action captioned In re Morning Song
Bird Food Litigation, No. 3:12-cv-1592-JAH-AGS (S.D. Cal. filed June 27, 2012), presently
pending in the Southern District of California. As briefly explained above, in 2012, Scotts pleaded
guilty to using unapproved, harmful pesticides on its bird feed. See In re Morning Song, 831 F.3d
at 769 (summarizing criminal proceedings). The class action is comprised of consumers who
purchased the tainted bird feed and seeks damages under RICO and various state consumer
protection statutes.
Discovery has taken the parties all over the country, including to the Southern District of
Indiana. In the matters before the Court, Plaintiffs have taken the depositions of two former Scotts
employees who were terminated for their roles in the pesticide misuse. Mr. Medley was Regional
Operations Director of Wild Bird Food for Scotts until he was terminated in 2008. [Medley Filing
No. 3-1 at 106.] Mr. Hegewald was a plant engineer for Scotts. [Hegewald Filing No. 5-1 at 126.]
Mr. Medley and Mr. Hegewald were two of three individuals terminated by Scotts as a result of
the pesticide misuse. [Hegewald Filing No. 5-1 at 125-26.] At the sentencing hearing in Scotts’
criminal matter, Scotts emphasized that the pesticide misuse “did not reflect some broader failure
of corporate culture or corporate compliance.” Sentencing Hearing Transcript at 9, Scotts MiracleGro Co., 2:12-cr-00024-JLG (S.D. Ohio Sept. 17, 2012). The sentencing judge found it significant
that “the three individuals who were most responsible for the bird food violation,” two of whom
are the deponents in these matters, “were terminated by Scotts.” Id. at 20.
The current disputes share nearly identical underpinnings.

Sometime prior to each

deposition, attorney Doug Mansfield, who at one point represented Scotts, [Hegewald Filing No.
5-1 at 131], contacted each deponent to offer his services, [Hegewald Filing No. 5-1 at 108; Medley

5

Filing No. 3-1 at 92]. Neither deponent paid for Mr. Mansfield’s representation. [Hegewald Filing
No. 5-1 at 108; Medley Filing No. 3-1 at 92.] Mr. Hegewald confirmed that Scotts paid for Mr.
Mansfield to represent him at his deposition. [Hegewald Filing No. 5-1 at 103.] Mr. Mansfield
was also paid by Scotts to represent the third individual fired for his actions in the pesticide matter,
Joseph Pellegrini. [Hegewald Filing No. 5-1 at 131.]
Prior to their depositions, Mr. Medley and Mr. Hegewald met not only with their attorney,
Mr. Mansfield, but also with counsel for Scotts. [Medley Filing No. 3-1 at 100; Hegewald Filing
No. 5-1 at 108.] During the depositions, Plaintiffs’ counsel sought to explore the nature and impact
of the pretrial deposition meetings between the deponents and Scotts’ counsel. Mr. Mansfield and
Scotts’ counsel objected once the questioning went beyond the mere fact of the discussion. At Mr.
Medley’s deposition, Scotts’ counsel (“Mr. Jones” in the transcript) instructed Mr. Medley not to
answer several questions regarding his deposition preparation:

6

[Medley Filing No. 3-1 at 100-01.]
On cross-examination at Mr. Hegewald’s deposition, Mr. Mansfield solicited the following
testimony about Mr. Hegewald’s deposition preparation:

[Hegewald Filing No. 5-1 at 105.] Plaintiffs’ counsel thereafter asserted that Scotts and/or Mr.
Hegewald had waived any privilege by soliciting this testimony. [Hegewald Filing No. 5-1 at 10506.]
Later, on redirect, Mr. Hegewald’s counsel instructed him not to answer certain questions
regarding deposition preparation:

7

[Hegewald Filing No. 5-1 at 109-10.]
At or after each deposition, Plaintiffs’ counsel learned that the deponents, by counsel, had
reached “common interest agreements” with counsel for Scotts. The emails discussing these
agreements are identical, except for the difference in names:

8

[Medley Filing No. 17-3 at 2; Hegewald Filing No. 10-1 at 11.]
On October 24, 2017, Plaintiffs filed their motion to compel Mr. Medley to reconvene his
deposition by video to answer the questions as to which Scotts’ counsel invoked attorney-client
privilege or, in the alternative, to transfer the miscellaneous matter to the Southern District of

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California for decision. [Medley Filing No. 1.] On February 2, 2018, the Magistrate Judge issued
his R&R, recommending that Plaintiffs’ motion to compel be denied on its merits, though the
Magistrate Judge did not reach the merits of the privilege claims. [Medley Filing No. 18.] On
March 12, 2018, Plaintiffs filed their motion to compel Mr. Hegewald to reconvene his deposition
by video to answer the questions as to which his counsel invoked attorney-client privilege or, in
the alternative, to transfer the motion to the Southern District of California. [Hegewald Filing No.
1.] Both motions and Plaintiffs’ objections to the R&R in Mr. Medley’s matter are fully briefed
and ripe for decision.
III.
DISCUSSION
The Court begins by addressing Plaintiffs’ objections to the Magistrate Judge’s R&R
before turning to the threshold issue of whether this Court is in the best position to decide the
merits of Plaintiffs’ motions to compel.
A. Plaintiffs’ Objections to the R&R in Mr. Medley’s Matter
On November 15, 2017, the undersigned referred Mr. Medley’s matter to the assigned
Magistrate Judge for a report and recommendation as to the proper disposition of Plaintiffs’
motion. [Medley Filing No. 14.] On January 7, 2018, the Magistrate Judge issued his R&R,
recommending that the undersigned deny Plaintiffs’ Motion. [Medley Filing No. 18.] The
Magistrate Judge cited several bases in support of his recommendation. First, the R&R concluded
that Plaintiffs’ motion was filed outside of the window provided for by the chambers rules of
Magistrate Judge Schopler, who is assigned to the underlying class action in California. [Medley
Filing No. 18 at 4.] Rather, the R&R surmised that Plaintiffs may have “filed their motion in this
Court to avoid issues arising with their noncompliance” with Magistrate Judge Schopler’s
chambers rules. [Medley Filing No. 18 at 4.] Second, the R&R concluded that, to the extent this

10

Court’s Local Rules apply, Plaintiffs failed to comply with them prior to filing their motion.
[Medley Filing No. 18 at 4-5.] Third, the R&R concluded that reconvening the deposition would
be unduly burdensome for Mr. Medley, given his status as a nonparty and the distance between
this District and California.1 [Medley Filing No. 18 at 5-8.] The R&R emphasized the expense
while characterizing the sought testimony as “minutiae,” and finding it not strongly relevant to the
merits of the matter. [Medley Filing No. 18 at 7-8.] The R&R did not address the underlying
assertions of attorney-client and work product privilege.
Plaintiffs object to each of these conclusions, arguing that neither Magistrate Judge
Schopler’s chambers rules nor the Southern District of Indiana Local Rules apply under these
circumstances and that the R&R overemphasized any cost to Mr. Medley while improperly
minimizing the importance of the discovery sought. [Medley Filing No. 19 at 5-11.] Mr. Medley
and Scotts (“Nonmovants”) filed a joint response to Plaintiffs’ objections, arguing that Plaintiffs
should have complied with Magistrate Judge Schopler’s deadlines and the Local Rules of this
Court. [Medley Filing No. 20 at 9-11.] The Nonmovants argue that the R&R appropriately
determined that the burden of a reconvened deposition would outweigh its benefits. [Medley
Filing No. 20 at 11-17.]
While the Court referred this matter to the Magistrate Judge for a report and
recommendation pursuant to 28 U.S.C. § 636(b)(1)(B), [Medley Filing No. 14], Plaintiffs submit
that the more deferential clearly erroneous/contrary to law standard of review applicable to
nondispositive orders applies to the Court’s review of the R&R, [Medley Filing No. 19 at 8-9].
Under this standard, the district judge reviews the magistrate judge’s R&R for incorrect

1

The R&R also concluded that transfer would be inappropriate for the same reason. The Court
addresses the issue of transfer in the next Section.
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interpretations of “relevant statutes, case law, or procedure” and for “definite . . . mistake[s]” in
the application of law to fact. Elder Care Providers of Ind., Inc. v. Home Instead, Inc., 2017 WL
4250107, at *2 (S.D. Ind. 2017) (internal quotations omitted) (collecting authorities); see Fed. R.
Civ. P. 72(a). The Nonmovants, meanwhile, invoke Rule 72(b), which provides for de novo review
of a report and recommendation on dispositive matters. [Medley Filing No. 20 at 5.] Thus, the
Court is in the unique position of having each party invoke the legal standard detrimental to their
respective positions. Fortunately, while motions to compel are classically nondispositive matters
subject to deferential review (notwithstanding the above-noted § 636(b)(1)(B) referral), this is not
a situation in which the standard of review impacts the result. Under either standard, the Court
concludes that the R&R’s procedural rulings and conclusions on proportionality may not stand.
First, the Court rejects the R&R’s suggestion that Plaintiffs filed their motion in this
District as a means to circumvent Magistrate Judge Schopler’s chambers rules on timing for
discovery motions. Significantly, Federal Rule of Civil Procedure 37(a) required that Plaintiffs
seek “an order to a nonparty . . . in the court where the discovery is . . . taken.” Fed. R. Civ. P.
37(a)(1); see also Fed. R. Civ. P. 45(g) (noting contempt authority of “court for the district where
compliance is required”). Plaintiffs filed their motion here as required by the rules, not as a means
of forum shopping. Similarly, there is no reason that Magistrate Judge Schopler’s chambers rules
should apply to a miscellaneous matter pending in this Court, inasmuch as the Federal Rules
expressly required this particular discovery dispute to be raised in this Court, which has its own
Local Rules to govern proceedings before it. Cf., e.g., Fed. R. Civ. P. 83 (codifying preference for
reaching merits where violations of local or standing rules are “nonwillful” or occur without
“actual notice of the requirement”); United States v. Zingsheim, 384 F.3d 867, 870 (7th Cir. 2004)

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(“Standing orders have much the status of local rules . . . .”). Plaintiffs’ motion may not be denied
for their alleged failure to comply with Magistrate Judge Schopler’s chambers rules.
Second, while the Southern District of Indiana’s Local Rules governs all proceedings in
this Court, the Rules did not require Plaintiffs’ counsel to contact the Court to speak with a
magistrate judge prior to filing this miscellaneous matter. Local Rule 37-1 provides that before
“involving the court in any discovery dispute . . . counsel must confer in a good faith attempt to
resolve the dispute.” S.D. Ind. L.R. 37-1(a). If this effort is unsuccessful, “counsel are encouraged
to contact the chambers of the assigned Magistrate Judge to determine whether the Magistrate
Judge is available to resolve the discovery dispute . . . .” Id. The problem for Plaintiffs, of course,
was that there was no assigned magistrate judge to contact at the time of Mr. Medley’s deposition.
Similarly, Local Rule 30-1(c) provides that “[a] party may recess a deposition to submit an
objection by phone to a judicial officer if the objection[] could cause the deposition to be
terminated[] and can be resolved without submitting written materials to the court.” As Plaintiffs
explain, these particular Local Rules are not, by their own terms, mandatory. The Court agrees
with the R&R’s suggestion that parties to a deposition in this District may find it useful to
proactively contact the Court for an informal conference prior to filing a miscellaneous matter, but
Plaintiffs’ failure to do so does not provide a procedural basis to deny their motions.
Finally, the Court respectfully rejects the R&R’s characterization of Plaintiffs’ motion as
seeking to “dawdle on the minutiae of deposition preparation discussions” and conclusion that “the
concept of proportionality strongly weighs in favor of denying Plaintiffs’ motion.” [Medley Filing
No. 18 at 7-8.] To the contrary, Plaintiffs have proffered unrebutted evidence to show that the
testimony of Mr. Medley (and Mr. Hegewald) may be central to the claims and defenses in this
matter. Specifically, Scotts has not challenged Plaintiffs’ assertion that the two deponents were

13

two of only three individuals terminated for their roles in the pesticide matter and that Scotts made
much of its willingness to terminate these key players before the sentencing judge in its criminal
matter. Nor does Plaintiffs’ quest for impeachment or bias evidence appear to be a mere fishing
expedition. To the contrary, Plaintiffs have already established that the deponents’ counsel was
sought and paid for by Scotts; that the deponents met with Scotts’ counsel prior to the deposition;
and that the deponents entered into a “common interest agreement” with Scotts. Combined with
some of the testimony elicited during the depositions regarding refreshed recollections, Plaintiffs
have demonstrated more than a mere possibility that the evidence sought could undermine the
credibility of two key witnesses.

Moreover, the burden of reconvening the depositions is

minimized by Plaintiffs’ agreement to a video deposition and the Court’s ability to fashion
limitations, such as time limitations, to accommodate the Nonparties. Should the Nonparties fail
to establish their claims to privilege, the likelihood of eliciting evidence of bias deserves more
serious consideration in the Rule 26(b)(1) proportionality analysis than it received in the R&R.
The Court concludes that it is not in the best position to weigh these critical considerations in light
of the entire litigation and, as set forth in the next section, leaves it to the Southern District of
California to make this discretionary and fact-intensive assessment as appropriate.
Neither the R&R’s procedural rulings nor its proportionality analysis supports the denial
of either of Plaintiffs’ motions to compel. The Court therefore SUSTAINS Plaintiffs’ objections
to the R&R, [Medley Filing No. 18], in Mr. Medley’s matter.
B. Transfer Under Rule 45(f)
Having concluded that neither of Plaintiffs’ motions to compel may be denied on the
grounds addressed in the R&R, the Court must next address whether this Court is the most
appropriate forum for addressing the Nonmovants’ privilege and proportionality arguments.

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Plaintiffs argue that the Court should transfer the pending motions to the Southern District
of California to ensure uniformity and to allow the court closest to the matter to make the important
determinations at issue. [Medley Filing No. 3 at 20-23; Hegewald Filing No. 5 at 15-17.] In
response, the Nonmovants argue that exceptional circumstances do not exist justifying a transfer
and that transfer would impose an unnecessary burden on the nonparty deponents. [E.g., Medley
Filing No. 10 at 4-5; Hegewald Filing No. 10 at 31-33.]
Rule 45(f) provides that “[w]hen the court where compliance is required did not issue the
subpoena, it may transfer a motion to the issuing court . . . if the court finds exceptional
circumstances.” Fed. R. Civ. P. 45(f). While Rule 45(f) reflects a general preference for “local
resolution of disputes about subpoenas,” the Advisory Committee’s note recognizes that there are
situations in which “transfer may be warranted in order to avoid disrupting the issuing court’s
management of the underlying litigation.” Fed. R. Civ. P. 45 advisory committee’s note (2013
Amendment). The Advisory Committee provides as examples two such circumstances, “as when
[the originating] court has already ruled on issues presented by the motion or the same issues are
likely to arise in discovery in many districts.” Id. Other relevant considerations for transfer include
“familiarity with the underlying action,” which will not by itself usually warrant transfer, but “is a
compelling factor in ‘highly complex’ cases where the issuing court is aware of ‘the full scope of
issues involved as well as any implications the resolution of the motion will have on the underlying
litigation.’” In re Niaspan Antitrust Litig., 2015 WL 3407543, at *1 (D. Md. 2015) (quoting Wultz
v. Bank of China, Ltd., 304 F.R.D. 38, 46 (D.D.C. 2014)). Several district courts have recognized
that “judicial economy” and patterns of “highly contentious discovery” disputes may demonstrate
exceptional circumstances warranting transfer. Elliot v. Mission Trust Servs., LLC, 2014 WL
7157156, at *3 (W.D. Tex. 2014) (citing Chem-Aqua, Inc. v. Nalco Co., 2014 WL 2645999, at *1

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(N.D. Tex. 2014)), adopted, 2015 WL 12734046 (2015). Ultimately, transfer is appropriate where
the movants demonstrate that such justice- and efficiency-oriented concerns outweigh the burdens
on the local nonparties, though the Advisory Committee anticipated that the transferee judge may
minimize the burden on nonparties by permitting telephonic appearances as necessary. See Fed.
R. Civ. P. 45 advisory committee’s note (2013 Amendment).
In considering the foregoing, the Court concludes that Plaintiffs have the better of the
argument. As explained above, the deponents were central figures in the events underlying this
lawsuit. Their credibility may well play a critical role in resolving Plaintiffs’ claims. Neither is
likely to testify in person at trial, meaning that their depositions are Plaintiffs’ only opportunity to
explore any biases or flaws in their testimony. The Southern District of California, where the
underlying case remains pending, should be the court to decide whether Plaintiffs are entitled to
additional discovery on what transpired during the deponents’ preparation with Scotts’ counsel.
The Court is not persuaded that these motions may be resolved by the supposedly discrete
issues of privilege raised by the Nonmovants. For one, counsel undoubtedly instructed both Mr.
Medley and Mr. Hegewald not to answer questions seeking unprivileged material.2 For example,
at Mr. Medley’s deposition, Scott’s counsel instructed Mr. Medley not to answer questions
concerning whose testimony he had reviewed during his preparation session. [Medley Filing No.
3-1 at 100-01.] But, as the Southern District of Florida observed in granting the Morning Song
motion to compel before it, “[Scotts’] counsel has not articulated any specific evidence to suggest
that Mr. [Medley’s] disclosure of [which depositions] he reviewed at the pre-deposition meeting

2

The Court makes these observations without reaching the issues of waiver or whether the
common interest doctrine applies to extend the privileges to conversations between the deponents
and Scotts’ counsel. The Court leaves it to the Southern District of California to make this
determination as it sees fit.
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would reveal . . . . counsel’s thoughts.” 2017 WL 7512980, at *3 (S.D. Fla. 2017). Scotts’ bald
assertion that revealing which depositions were discussed “would reveal counsel’s thoughts”
likewise fails to meet the burden of demonstrating privilege in this case. [Medley Filing No. 9 at
17-18.] Even more problematic, Mr. Mansfield instructed Mr. Hegewald not to answer questions
about whether his preparation impacted his memory or testimony. [Hegewald Filing No. 5-1 at
109-10.] This type of yes-or-no question clearly would not invade either claimed privilege, as the
answer would reveal neither the substance of attorney-client communications nor counsel’s
thought processes or strategy.
But the possibility that these and other inquiries from the depositions could reveal both
privileged and nonprivileged information dictate that the Southern District of California consider
these motions in the first instance. Returning to the highly discretionary and fact-intensive
proportionality analysis discussed above, that court may well decide that the properly-discoverable
information withheld by the Nonparties is not worth the burden in reconvening their depositions.
This Court may not decide this without expending considerable resources in familiarizing itself
with the voluminous docket from the Southern District of California. Moreover, that court is
extremely familiar both with the underlying case and the many discovery disputes that the assigned
judicial officers have resolved since the complaint was filed in 2012, and should be able to swiftly
undertake the privilege and proportionality analyses with the proper perspective in light of the
entirety of the litigation. Having considered all of the relevant factors, including the complexity
of this class action, the potentially great importance of the deponents’ testimony, the fact-intensive

17

nature of the proportionality analysis, the extreme congestion of this Court’s docket,3 the Southern
District of California’s familiarity with this case, and the transferee court’s ability to ease the
burden on the nonparties by allowing for telephonic appearances, the Court concludes that
Plaintiffs have established exceptional circumstances warranting transfer under Rule 45(f). The
Court will therefore direct the Clerk to transfer this matter to the Southern District of California
forthwith.
IV.
CONCLUSION
The Court concludes that special circumstances exist warranting transfer of Plaintiffs’
motions to compel to the Southern District of California where the underlying litigation remains
pending. The Court therefore SUSTAINS Plaintiffs’ objections to the Magistrate Judge’s R&R
in 1:17-mc-00078-JMS-TAB and GRANTS IN PART Plaintiffs’ motions in 1:17-mc-00078JMS-TAB and 1:18-mc-00016-JMS-TAB. The Court directs the Clerk to TRANSFER both
matters to the United States District Court for the Southern District of California for further
proceedings.

Date: 4/25/2018

Distribution via ECF only to all counsel of record

3

The Southern District of Indiana is the second busiest district court in the country with 1,028
weighted filings per judgeship while the Southern District of California ranks fifteenth with 589
weighted filings per judgeship. United States Courts, U.S. District Courts – Combined Civil and
Criminal
Federal
Court
Management
Statistics,
(Dec.
31,
2017),
http://www.uscourts.gov/sites/default/files/data_tables/fcms_na_distprofile1231.2017.pdf.
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