Nestle Purina PetCare Company v. The Blue Buffalo Company Ltd.

Filing 1693

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Wilbur-Elliss objection to Omnibus Order No. 11, 1656 , is OVERRULED except with respect to Documents 594 and 595. Those privilege objections are SUSTAINED. Signed by District Judge Rodney W. Sippel on 03/01/2022. (KRZ)

Case: 4:14-cv-00859-RWS Doc. #: 1693 Filed: 03/01/22 Page: 1 of 7 PageID #: 36981

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
BLUE BUFFALO COMPANY, LTD.,
Plaintiff,
vs.
WILBUR-ELLIS COMPANY, LLC
and DIVERSIFIED INGREDIENTS,
INC.,
Defendants,
AND RELATED ACTIONS

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Case No. 4:14 CV 859 RWS

MEMORANDUM AND ORDER
This matter is before me on Defendant Wilbur-Ellis’s objection to Special
Master Bradley A. Winters’s Omnibus Order No. 11, ECF No. [1649]. For the
reasons explained below, I will overrule the objection in part.
BACKGROUND
In Omnibus Order No. 11, the Special Master resolved the privilege status of
the 168 documents on Wilbur-Ellis’s Peppercomm Documents Privilege Log.
Wilbur-Ellis objects to 15 of these determinations. The Special Master found that
the communications at issue were not privileged, writing either “PRIVILEGE
OBJECTION OVERRULED” or:
PRIVILEGE OBJECTION OVERRULED. See June 16, 2015 Order,
Dkt. No. 363, at 3-4. (“Additionally, materials [shared with a public
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relations firm] generally will not qualify as protected work product
unless they were prepared by or for counsel, in anticipation of litigation,
and discuss Purina’s litigation – as opposed to public relations or brand
– strategy. This is true even if the public relations and brand strategy is
related to this suit.”).
Wilbur-Ellis argues that these 15 communications are privileged.

The

communications fall into one of two categories: (1) documents that Wilbur-Ellis
employees created or compiled for and at the direction of counsel; and (2) WilburEllis’s in-house counsel’s substantive edits to and commentary about draft press
statements.
ANALYSIS
I.

Documents that Wilbur-Ellis employees created or compiled for and at
the direction of counsel

Documents 376, 524, 526, 594, 595, 606, and 607 fall into this first category.
Wilbur-Ellis represents that these documents are no different from Document 541,
which the Special Master deemed privileged in Omnibus Order No. 11. Before
issuing his order, the Special Master asked Wilbur-Ellis to explain why it asserted
privilege over Document 541. Wilbur-Ellis recited the well-known principle that
the work product privilege extends to material prepared by an attorney’s agents as
well as those prepared by an attorney herself. United States v. Nobles, 422 U.S. 225,
238 (1975). The Special Master accepted this argument and sustained Wilbur-Ellis’s
claim of privilege. Now, Wilbur-Ellis contends that the Special Master erred in not
applying that same standard to the other documents in this category.
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As a threshold matter, with the exception of one document which will be
discussed below, Wilbur-Ellis has not presented any evidence demonstrating that its
in-house counsel, Mr. David Granoff, requested this information or directed its
compilation. Wilbur-Ellis submitted the specific documents at issue for my review,
as ordered, but based on the record before me, I cannot determine that most of the
documents were actually created or compiled at Mr. Granoff’s direction.
Document 376 is a PDF attachment to Document 375, which the Special
Master deemed privileged and which Wilbur-Ellis did not submit for my review.
The documents are from 2013 with a “last printed” date of January 4, 2016.
Assuming that Mr. Granoff directed the compilation of these documents, based on
the date, it does not appear that they were prepared in anticipation of litigation.
Rather, it appears that they were produced in the ordinary course of business. See
Simon v. G.D. Searle & Co., 816 F.2d 397, 401 (8th Cir. 1987) (the work product
privilege protects from disclosure only documents that were prepared in anticipation
of litigation, which is “clearly a factual determination”).
Document 524 is also a PDF attachment.1 It contains a letter from Rob
Fullerton, President of Wilbur-Ellis’s Feed Division to Dig Gurung, Commodities
Manager, Operations of WellPet about Wilbur-Ellis’s turkey meal product. It also
contains a document titled “WellPet LLC Raw Material Specification,” dated May

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Documents 524 and 526 appear identical.
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21, 2014. There is no indication that Mr. Granoff ordered the compilation of these
documents, or reviewed, edited, and provided legal advice about them, such that
either the work product or attorney-client privilege prevent their disclosure.
Documents 606 and 607 are an email, dated July 21, 2015, and an attached
bill of lading dated May 24, 2011. The bill of lading reflects 25 tons of chicken meal
blend shipped to Custom AG Commodities, LLC. It does not appear that the bill of
lading was prepared in anticipation of litigation. Furthermore, the email, which was
neither written nor received by Mr. Granoff, simply informs that the document was
“missing” and was recently discovered. Neither document is entitled to work
product protection.
However, I find that Documents 594 and 595—another email and PDF
attachment—are protected work product. Document 595 specifically states that it
was created at counsel’s request “as a follow-up” to an earlier assessment. Because
these documents appear to have been created in anticipation of litigation, and at
counsel’s clear request, Wilbur-Ellis’s privilege objection is sustained.
II.

Documents containing Wilbur-Ellis’s in-house counsel’s substantive
edits to and commentary about draft press statements

Documents 131, 535, 579, 580, 657, 658, 660, and 661 are included in this
category.2 Wilbur-Ellis maintains that these documents are opinion work product

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Wilbur-Ellis notes that Documents 131 and 535 are the same.
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entitled to “almost absolute immunity” from discovery because “Mr. Granoff’s
substantive communications and edits to these draft press releases reflect his mental
impressions concerning the relevant facts and what statements might or might not
elicit potential liability.” See Baker v. Gen. Motors Corp., 209 F.3d 1051, 1054 (8th
Cir. 2000) (ordinary work product, which “includes raw factual information,” is
discoverable if the party seeking discovery “has a substantial need for the materials
and…cannot obtain the substantial equivalent of the materials by other means,”
while opinion work product, which “includes counsel’s mental impressions,
conclusions, opinions or legal theories…enjoys almost absolute immunity and can
be discovered only in very rare and extraordinary circumstances”).

In these

documents, according to Wilbur-Ellis, “Mr. Granoff characterizes and highlights his
view of certain underlying facts, including by expressly summarizing litigation
positions and related strategy or implicitly through substantive revisions.”
After reviewing these documents, I find that this characterization of Mr.
Granoff’s contributions is inaccurate. The first of these communications, Document
131, is titled “Statements Re: Diversified Ingredients – if they go public and name
us.” The document, which is dated one month after Nestlé Purina filed suit, contains
one short paragraph directed at Diversified Ingredients and another aimed at the
press. It appears that Mr. Granoff deleted one sentence from the second paragraph.
This minor editing of a public-facing document does not rise to the level of
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privileged attorney work product and does not demonstrate that Mr. Granoff was
rendering legal advice. See Freeport-McMoran Sulphur, LLC v. Mike Mullen
Energy Equip. Res., Inc., 2004 WL 1299042, at *10 (E.D. La. June 4, 2004).
Documents 579 and 580 are an email and attached Word document titled
“FAQ.” The document, which states that it was last updated on October 10, 2014,
contains 32 questions that Wilbur-Ellis seemingly believed it might have to answer
about the Purina litigation. Mr. Granoff reviewed and edited some of the responses
and added a few questions of his own. Like the previous document, this is an
outwardly facing communication, aimed at the general public, that discusses the
Purina litigation for public relations/brand strategy purposes. The edits made by Mr.
Granoff largely concern grammar, style, and public relations and do not
communicate

his

“mental

impressions,

conclusions,

opinions,

or

legal

theories…concerning the litigation.” Fed. R. Civ. P. 26(b)(3).
Finally, Documents 657, 658, 660, and 661 originate from the same email
chain concerning a September 2016 segment about pet food on The Dr. Oz Show.
The emails discussed how Wilbur-Ellis would respond publicly if the show
referenced the Purina litigation. The communications were made in anticipation of
potential bad publicity related to the Purina litigation—not in anticipation of
litigation itself—and Mr. Granoff did not render legal advice.

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Having carefully reviewed the documents at issue, I will overrule WilburEllis’s objection and adopt the Special Master’s Omnibus Order No. 11 in its entirety
except with respect to Documents 594 and 595.
Accordingly,
IT IS HEREBY ORDERED that Wilbur-Ellis’s objection to Omnibus Order
No. 11, [1656], is OVERRULED except with respect to Documents 594 and 595.
Those privilege objections are SUSTAINED.

RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE

Dated this 1st day of March, 2022.

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