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

Filing 1744

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Wilbur-Ellis's objection to Omnibus Order No. 14, 1720 , is OVERRULED except with respect to the exceptions discussed in this order. Signed by District Judge Rodney W. Sippel on 8/31/2022. (KEK)

Case: 4:14-cv-00859-RWS Doc. #: 1744 Filed: 08/31/22 Page: 1 of 5 PageID #: 37334

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. 14, ECF No. [1705]. For the
reasons explained below, I will overrule the objection in part.
BACKGROUND
In Omnibus Order No. 14, as in Omnibus Order No. 11, the Special Master
resolved the privilege status of documents on Wilbur-Ellis’s Peppercomm
Documents Privilege Log. Wilbur-Ellis objects to 27 of these determinations. The
communications fall into one of three categories: (1) communications drafted by
Wilbur-Ellis’s in-house counsel relating to this litigation; (2) communications
containing information that Wilbur-Ellis employees created or compiled for and at
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the direction of counsel; and (3) communications discussing Wilbur-Ellis’s outside
counsel’s substantive commentary about draft press statements.
ANALYSIS
I.

Communications drafted by Wilbur-Ellis’s in-house counsel
relating to this litigation

Documents 10 and 12 appear to be the same draft response, written by WilburEllis’s in-house counsel, David Granoff, to an inquiry from a Diversified Ingredients
employee. Wilbur-Ellis argues that this communication is entitled to “almost
absolute immunity” from discovery because it “contains Mr. Granoff’s 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). Wilbur-Ellis also represents that it previously asserted attorney-client
privilege and work product protection over this same communication in its own
privilege log, and the Special Master sustained that claim of privilege in Omnibus
Order No. 11.
Blue Buffalo questions whether the Special Master previously sustained
Wilbur-Ellis’s objection as to this specific draft response. Reviewing the draft now,
I find that it is privileged. Wilbur-Ellis’s objection is therefore sustained.

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II.

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

Wilbur-Ellis contends that a second set of communications are privileged
because they contain information that was “prepared, collected, or provided at Mr.
Granoff’s direction in anticipation [of] or in connection with [this] litigation.”
The first set of documents in this category—132, 133, 134, 135, 136, 137,
138, 139, 140, 141, and 142—are emails from an October 2014 chain in which Mr.
Rusu, a manager at Wilbur-Ellis, asked Mr. Granoff if they could discuss, over the
phone, Mr. Rusu’s response to an inquiry from one of Wilbur-Ellis’s customers. The
exchange does not contain a draft response from Mr. Granoff, does not memorialize
any legal advice that Mr. Granoff may have offered, and does not convey his mental
impressions concerning this litigation. To the extent Wilbur-Ellis believes that the
facts Mr. Rusu provided to Mr. Granoff in advance of the phone conversation are
privileged, I disagree, as the facts he shared concerned Wilbur-Ellis’s contractual
relationship with the customer and and were not rendered in anticipation of
litigation.
The second set of documents—241, 243, 244, 245, 249, and 250—originate
from a March 2017 email chain discussing a proposed press release. The Special
Master permitted partial redactions to three emails written by Mr. Granoff. These
redactions were appropriate. Wilbur-Ellis’s other proposed redactions are not. The
rest of the messages in this exchange do not contain privileged information. Mr.
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Granoff offered minor edits to a public document that discusses the Rosser facility
for public relations/brand strategy purposes. Additionally, the factual information
relayed by other employees in this exchange was not done in anticipation of the
litigation.
As a result, I agree with the Special Master’s determination that none of these
communications are privileged.
III.

Documents containing Wilbur-Ellis’s outside counsel’s
substantive commentary about draft press statements

This category includes Documents 68, 70, 72, 73, 74, 75, and 76. These
communications originate from the same email chain, dated October 9, 2014, in
which the participants discussed a press statement drafted by Peppercomm and
reviewed by Wilbur-Ellis’s outside litigation counsel. The Special Master sustained
Wilbur-Ellis’s objection regarding one email authored by Mr. Granoff at 9:43 a.m.
but overruled its objections as to two emails he sent at 5:57 p.m. and 10:19 p.m.
After careful consideration, I find that these emails contain privileged
information, as they communicate Mr. Granoff’s insights into Wilbur-Ellis’s
potential liability. Wilbur-Ellis’s objection as to these communications is therefore
sustained.
Based on my review of the communications at issue, I will overrule WilburEllis’s objection and adopt the Special Master’s Omnibus Order No. 14 in its
entirety, with the exceptions discussed above.
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Accordingly,
IT IS HEREBY ORDERED that Wilbur-Ellis’s objection to Omnibus Order
No. 14, [1720], is OVERRULED except with respect to the exceptions discussed
in this order.

RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE

Dated this 31st day of August, 2022.

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