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

Filing 1748

MEMORANDUM AND ORDER -IT IS HEREBY ORDERED that Wilbur-Elliss objection to Omnibus Order No. 13, 1673 , is SUSTAINED, except with respect to Blue Buffalos attorney time entries invoking the attorney-client privilege. That portion of the objection is OVERRULED. (see full memo & order for details.) Signed by District Judge Rodney W. Sippel on 09/16/2022. (KRZ)

Case: 4:14-cv-00859-RWS Doc. #: 1748 Filed: 09/16/22 Page: 1 of 14 PageID #: 37346

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
Wilbur-Ellis has filed an objection to Special Master Bradley A. Winters’s
Omnibus Order No. 13, ECF No. [1663]. For the reasons explained below, I will
sustain the objection in part and overrule it in part.
BACKGROUND
In Omnibus Order No. 13, the Special Master completed an in camera review
of Blue Buffalo’s attorney time entries on its privilege logs. According to WilburEllis, these redactions “make it impossible to evaluate…whether the work is
recoverable as damages from Wilbur-Ellis and Diversified, or not.” Wilbur-Ellis
further argues that Blue Buffalo has “placed the time entries describing [its] legal
work ‘at issue,’ and thus waived all protections that might have applied in the
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absence of such a damages claim” under Pamida, Inc. v. E.S. Originals, Inc., 281
F.3d 726 (8th Cir. 2002).
In its response to the objection, Blue Buffalo argues that the Special Master
already addressed the scope of redactions for its attorney fee invoices in Omnibus
Order No. 10 and that because Wilbur-Ellis did not object to the ruling then, it cannot
be permitted to do so now. Blue Buffalo contends that Wilbur-Ellis reads Pamida
too broadly and that the case does not establish that a party waives all privileges by
seeking attorneys’ fees as damages.
ANALYSIS
Omnibus Order No. 10
In Omnibus Order No. 10, the Special Master discussed the scope of privilege
that Blue Buffalo could assert over its attorney time entry descriptions. He expressed
general agreement with Wilbur-Ellis’s contention that “Blue Buffalo cannot demand
that Wilbur-Ellis pay for a specific task while at the same time refusing to reveal
what that task is.” ECF No. [1614 at 36]. However, he also acknowledged that some
redactions might still be appropriate and concluded that an in camera review of the
proposed redactions would be necessary. He then offered “general guidance” about
proper and improper redactions:
1. The substance of communications between attorney and client may be
privileged, but the fact of such communications is not. Descriptions of
such communications in a timesheet or attorney invoice will most likely
not be deemed privileged.
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2. The identity of still-undisclosed consulting experts may be protectable, but
not if the identity of that expert…is the only way to determine for which
issues his expertise was sought…Aside from the identity of the nontestifying consulting expert, the subject matter of the work performed by a
timekeeper on a given day relating to experts will most likely not be
privileged—barring some kind of extraordinary disclosure of confidential
information or sensitive attorney advice.
3. The subject matter of work performed by a timekeeper on a given day will
most likely not be privileged—barring disclosure of genuinely confidential
information or sensitive attorney advice.
4. The substance of communications with a mediator described in a timesheet
or attorney invoice will most likely not be deemed privileged.
5. Attorney tasks described in a timesheet or law firm invoice relating to
federal investigations and grand jury proceedings will most likely not be
privileged—barring disclosure of genuinely confidential information or
sensitive attorney advice.
ECF No. [1614 at 47-49].
Wilbur-Ellis emphasizes that it “largely agrees” with the general guidance set
forth in Omnibus Order No. 10 and filed the instant objection because it believes
that some of the redactions ultimately permitted in Omnibus Order No. 13 are
inconsistent with this general guidance.
Blue Buffalo argues that because Wilbur-Ellis did not object to this portion of
Omnibus Order No. 10, it waived the right to do so and cannot now object to any
specific privilege determinations made in Omnibus Order No. 13. I disagree. Rather
than decisively resolve the issue, Omnibus Order No. 10 established a framework
intended to help Blue Buffalo focus its redactions when submitting its attorney time
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entries. The Special Master had not reviewed any of Blue Buffalo’s redactions at
that time, and the order clearly indicated that he would do so in the future. As a
result, I find that Wilbur-Ellis did not waive its right to object to any of the Special
Master’s specific privilege determinations in Omnibus Order No. 13.
Pamida Inc. v. E.S. Originals, Inc.
The Special Master did not discuss Pamida in Omnibus Order No. 13. WilburEllis argues that this was error because “none of Blue Buffalo’s specific
justifications for its redactions overcome Pamida or provides a separate legitimate
ground to withhold [the] information.”
Pamida involved two lawsuits: a patent infringement suit, which Pamida (a
shoe retailer) eventually settled for $475,000; and an indemnification suit, which
Pamida brought against Dynasty Footwear, Inc. (“Dynasty”) and several other shoe
manufacturers before the patent suit settled. The same law firm represented Pamida
in both suits. After the patent suit settled, Dynasty subpoenaed several of Pamida’s
attorneys, seeking their deposition testimony and documents to determine “what
actions Pamida took to give Dynasty notice of the patent infringement suit and its
claim for indemnity from Dynasty as well as whether the $750,000 in attorneys’ fees
sought by Pamida were reasonably incurred in defending the patent infringement
action.” 281 F.3d at 729. Pamida filed a motion to quash the subpoenas; the district
court granted the motion with respect to testimony and documents related to the
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indemnification suit, but denied it with respect to testimony and documents related
to the patent suit. On appeal, the Eighth Circuit affirmed.
In reaching this conclusion, the court discussed the standard for deposing
opposing counsel as established in Shelton v. Am. Motors Corp., 805 F.2d 1323 (8th
Cir. 1986). Under Shelton, the moving party must show that “(1) no other means
exist to obtain the information than to depose opposing counsel, (2) the information
sought is relevant and nonprivileged, and (3) the information is crucial to the
preparation of the case.” Id. at 1327. The Pamida court held that this standard
applied to the indemnification suit but not to the concluded patent suit. Pamida, 281
F.3d at 730. As a result, Dynasty could depose opposing counsel and review the
requested documents so long as it could “demonstrate that there has been a waiver
of the attorney-client privilege and that the work product privilege has either been
waived or that the standard of [Rule 26(b)(3)] has been satisfied.” Id. at 731. The
court held that under Nebraska state law, Pamida had impliedly waived the attorneyclient privilege by filing the indemnification suit. Id. at 732. The court further found
that Pamida also impliedly waived the work product privilege, not only because it
sought indemnification, but also because “the interests [of] fairness and consistency
mandate a finding of waiver.” Id.

The information sought “involve[d] crucial

issues in the indemnification action,” including the reasonableness of the attorneys’

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fees claimed as damages, and Dynasty could not investigate “critical information”
underlying the claims against it without a finding of implied waiver. Id.
Blue Buffalo believes that Pamida merely establishes that waiver of privilege
should be determined on a case-by-case basis.

It argues that Pamida is

distinguishable from the instant case in two key respects: first, in Pamida, the prior
litigation was “completely concluded,” while the information sought here is
“relevant to ongoing disputes;” and second, Pamida applied Nebraska law. Id. at
731 (under Nebraska law, an implied waiver of the attorney-client privilege occurs
when “(1) assertion of the privilege was a result of some affirmative act, such as
filing suit, by the asserting party; (2) through this affirmative act, the asserting party
put the protected information at issue by making it relevant to the case; and
(3) application of the privilege would have denied the opposing party access to
information vital to his defense”) (quoting League v. Vanice, 374 N.W.2d 849, 856
(Ne. 1985)).

Finally, Blue Buffalo characterizes Pamida as an “aberration,”

correctly noting that it has received some criticism. See UnitedHealth Grp. Inc. v.
Columbia Cas. Co., 2010 WL 11537514 (D. Minn. Aug. 10, 2010) (explaining that
“very few cases hold that an insurance policyholder waives work product protection
merely by filing a coverage action…Further, Wright & Miller have noted that even
as to non-insurance cases, Pamida and a small number of similar cases are sui
generis, stating, ‘[t]hese cases do not fit within any sensible concept of waiver’”)
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(citing 8 Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure,
§ 2016.6, at 420-23 & 420 n. 20).
Although this is not a straightforward indemnification suit, I find Pamida
instructive. Wilbur-Ellis is correct that by seeking attorneys’ fees as damages in this
suit, Blue Buffalo has placed those fees at issue. However, I disagree with WilburEllis’s broad interpretation of the case—namely, “that merely by requesting
attorney’s fees and costs, every single document or conversation protected by the
applicable privilege[s] has been waived.” Moldex Metric, Inc. v. 3M Co., 2015 WL
9859754, at *3 (D. Minn. Oct. 28, 2015) (rejecting plaintiff’s assertion of blanket
privilege over all requested documents but finding implicit waiver of privilege over
certain documents “that contain vital information peculiarly possessed by the
attorneys necessary to 3M to defend Moldex’s claims”).
Redactions in Omnibus Order No. 13
1. Entries containing information protected by the work product privilege
Most of the time entries at issue in this Order are redacted because they
purportedly contain information protected by the work product privilege. As I will
discuss in detail below, many of the entries assert specific justifications for the
invocation of the privilege (for example, some contain the names of non-testifying
experts, or reference grand jury materials). However, other entries are redacted

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because they contain “counsel’s thoughts and impressions about legal issues in this
case”—a straightforward invocation of the work product privilege.
I have reviewed these entries and find that they mostly describe work done at
a high level of generality. They do not convey Blue Buffalo’s attorneys’ “mental
impressions, conclusions, opinions, or legal theories…concerning the litigation” and
therefore cannot be considered opinion work product that would be entitled to
“almost absolute immunity.” Baker v. Gen. Motors Corp., 209 F.3d 1051, 1054 (8th
Cir. 2000) (citation omitted).
As redacted, the entries at issue do not provide insight into the work that Blue
Buffalo’s attorneys performed such that Wilbur-Ellis could argue whether it is or is
not responsible for these fees. Wilbur-Ellis has no other way of obtaining this
information and has a substantial need for it. Id. at 1054; Fed. R. Civ. P. 26(b)(3).
Furthermore, I believe that “the interests of fairness and consistency mandate a
finding of waiver.” Pamida, 281 F.3d at 732.
This ruling is consistent with the Special Master’s guidance in Omnibus Order
No. 10, particularly his advice that “[t]he subject matter of work performed by a
timekeeper on a given day will most likely not be privileged—barring disclosure of
genuinely confidential information or sensitive attorney advice.”

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2. Entries containing names of non-testifying experts
The Special Master found that Fed. R. Civ. P. 26(b)(4)(D) allows Blue Buffalo
to redact over 400 time entries containing the names of non-testifying experts and
the subject of their work. Wilbur-Ellis contends that this was error because it “has
no other means of determining who Blue Buffalo’s non-testifying experts were, the
subject matters of their work, or whether all or some portion of their work related to
subjects besides poultry byproduct meal.” It further argues that these redactions
contradict the guidance provided in Omnibus Order No. 10.
Fed. R. Civ. P. 26(b)(4)(D) provides:
(D) Expert Employed Only for Trial Preparation. Ordinarily, a party
may not, by interrogatories or deposition, discover facts known or
opinions held by an expert who has been retained or specially employed
by another party in anticipation of litigation or to prepare for trial and
who is not expected to be called as a witness at trial. But a party may
do so only:
(i) as provided in Rule 35(b); or
(ii) on showing exceptional circumstances under which it is
impracticable for the party to obtain facts or opinions on the same
subject by other means.
As an initial matter, it is unclear that the time entries here fall within the
category of information that Rule 26(b)(4)(D) was designed to protect. The time
entries at issue do not reveal the “facts known or opinions held” by those experts.
Rather, the entries contain only names of non-testifying experts and very simple
descriptions of their area of expertise. See Manzo v. Stanley Black & Decker, Inc.,
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2015 WL 136011, at *2 (E.D.N.Y. Jan. 9, 2015) (“Although the case law is not
entirely uniform, the majority of courts hold that the identities of non-testifying
experts, as opposed [to] the ‘facts known or opinions held’ by such experts, is
governed by Fed. R. Civ. P. 26(b)(1)…As a result, identity information is
discoverable without a showing of ‘exceptional circumstances’”) (citing Baki v. B.F.
Diamond Constr. Co., 71 F.R.D. 179, 181-82 (D. Md. 1976)); Manjunath A. Gokare,
P.C. v. Fed. Exp. Corp., 2012 WL 3136668, at *2 (W.D. Tenn. Aug. 1, 2012)
(explaining that “Rule 26(b)(4)(D)…merely limits the discovery of the ‘facts known
or opinions held’ by an expert witness unless exceptional circumstances are present”
and “does not bar the disclosure of…the identity of a witness, and it does not negate
the requirements under Rule 26(a)(1) and Rule 26(b)(1) that the identity of an
individual that provides factual allegations in the complaint must be provided”). But
see Ager v. Jane C. Stormont Hosp. and Training Sch. for Nurses, 622 F.2d 496, 503
(10th Cir. 1980); State Auto. Ins. Companies v. Briley, 140 F.R.D. 394, 397 (E.D.
Mo. 1992). But to the extent that Rule 26(b)(4)(D) is applicable to this information,
I find that there are exceptional circumstances justifying its disclosure. As redacted,
the entries at issue do not provide insight into the work that Blue Buffalo’s attorneys
performed in connection with these experts. Wilbur-Ellis has no other way of
determining what work was done. As a result, I will sustain Wilbur-Ellis’s objection

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to these time entries and order Blue Buffalo to produce unredacted versions. Again,
I find this ruling consistent with Pamida and Omnibus Order No. 10.
3. Entries describing work done in connection with federal grand jury
proceedings
The Special Master permitted Blue Buffalo to partially redact approximately
sixty time entries that contain descriptions of work relating to federal grand jury
proceedings. Wilbur-Ellis argues that there is no legal basis for these redactions.
Blue Buffalo argues that Federal Rule of Criminal Procedure 6(e) and the work
product privilege both protect this information from disclosure. In support of its
argument, Blue Buffalo emphasizes that “the Special Master and the Court have
previously concluded that parties like Blue Buffalo—and Wilbur-Ellis and
Diversified—are entitled to protect information under Rule 6” in ECF Nos. [1582]
and [1583].
In July 2020, the Special Master issued Omnibus Order No. 1, ECF No.
[1582], which recommended granting in part Blue Buffalo’s request for production
of grand jury materials. The Special Master recommended that the United States
produce specific grand jury materials—most of which were unavailable through any
other means—for Blue Buffalo’s review.1 I adopted this order in full. ECF No.

Among the materials not produced were documents that “may reveal the identities of cooperative
witness[es] and the grand jury’s inner workings,” and those that could have been “secured by other
means less corrosive to the grand jury process.” ECF No. [1582 at 24].
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[1583]. The information that Blue Buffalo sought in that order is far different from
the information it now seeks to protect. Blue Buffalo does not cite, and I have been
unable to identify, any authority suggesting that Fed. R. Crim. P. 6(e) protects
attorney time entries merely referring to work done in preparation for grand jury
proceedings from disclosure in a separate civil case.
The work product privilege does not provide a separate basis for permitting
these redactions. The entries do not communicate “mental impressions, conclusions,
opinions, or legal theories…concerning the litigation” and therefore do not
constitute opinion work product. Fed. R. Civ. P. 26(b)(3); Baker, 209 F.3d at 1054.
Furthermore, having reviewed the specific time entries at issue, I do not find that
they communicate “genuinely confidential information or sensitive attorney advice,”
which the Special Master indicated might support a finding of privilege in Omnibus
Order No. 10.
As a result, I will sustain Wilbur-Ellis’s objection as to the time entries
containing descriptions of work relating to federal grand jury proceedings. Blue
Buffalo must produce unredacted versions of these entries.
4. Entries containing information protected by the attorney-client
privilege
Approximately twelve entries are redacted on the basis of attorney-client
privilege. Wilbur-Ellis argues that these redactions were improper under Pamida
and further contends that the privilege does not apply because time entries
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“infrequently if ever divulge the legal opinions expressed in the attorney-client
communication itself.” Blue Buffalo emphasizes that Pamida does not control my
analysis of these entries because under Missouri law, “seeking indemnification for
attorney fees does not waive attorney-client privilege.” Chipman v. Trans. Ins. Co.,
2013 WL 796083, at *6 (E.D. Mo. Mar. 4, 2013) (citing State ex. rel. Chase Resorts,
Inc. v. Campbell, 913 S.W.2d 832, 837 (Mo. Ct. App. 1995)).
I find that the redactions the Special Master permitted were appropriate and
will overrule Wilbur-Ellis’s objection as to these twelve entries.
5. Entries containing names of individuals considered for depositions and
names of Blue Buffalo employees interviewed by counsel
The Special Master permitted redactions to twenty entries containing the
names of individuals Blue Buffalo considered for depositions. He also permitted
redactions to a “handful” of other entries containing the names of Blue Buffalo
employees contacted by counsel. Wilbur-Ellis argues that no authority justifies these
redactions and that the unredacted entries must be produced because “[i]n the
underlying lawsuits, some potential deponents were relevant to the byproductrelated claims while other potential (and actual) deponents had no plausible
connection with those claims.”

Blue Buffalo contends that revealing these

individuals’ names will provide insight into its litigation strategy, and that these
names “have no bearing on the subject of each billing entry, and thus provide no
insight into the work Blue Buffalo performed (and whether that work related to
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byproduct, corn, or soy—the purported need Wilbur-Ellis offers for demanding
unredacted bills).”
I agree that the names of individuals interviewed or considered for deposition
may reveal some insight into counsel’s litigation strategy. However, the redacted
entries leave Wilbur-Ellis without knowledge of the work done in connection with
these conversations. Wilbur-Ellis is entitled to this information. The entries must
be produced without redacted names.
Rulings on two entries left unresolved by the Special Master
The Special Master declined to rule on two entries. I have carefully reviewed
both entries. The proposed redaction for the email written by “CC” and dated April
2, 2015 is permitted, as it contains privileged information. However, the April 14,
2015 email written by “SAZ” must be produced in its entirety.
Accordingly,
IT IS HEREBY ORDERED that Wilbur-Ellis’s objection to Omnibus Order
No. 13, [1673], is SUSTAINED, except with respect to Blue Buffalo’s attorney time
entries invoking the attorney-client privilege. That portion of the objection is
OVERRULED.

RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE

Dated this 16th day of September, 2022.
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