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

Filing 1754

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Non-Party Witness William Douglas Haning's objection to the Special Master's Order No. 17 1752 is OVERRULED. Signed by District Judge Rodney W. Sippel on 10/14/2022. (KEK)

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

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No. 4:14 CV 859 RWS

MEMORANDUM AND ORDER
Non-Party Witness William Douglas Haning has filed an objection to the
Special Master’s Order No. 17. (Doc. 1752). For the reasons set forth below,
Haning’s objection will be overruled.
BACKGROUND
Haning is a former employee of Defendant Wilbur-Ellis Company, LLC, and
he was previously named as a third-party defendant in this case. Haning is also a
former client of Covington & Burlington, LLP—one of the law firms serving as
counsel of record for Wilbur-Ellis. Covington’s representation of Haning began in
the fall of 2015 when Haning agreed to be jointly represented with Wilbur-Ellis and

two other Wilbur-Ellis employees. The engagement letter that Covington sent to
Haning and the other Wilbur-Ellis employees stated:
Dear Messrs. Haning, Rychlik, and Harwell:
We are pleased to represent each of you with respect to Nestlé
Purina Petcare Co. v. Blue Buffalo Co., Ltd., No. 4:14-cv-00859
(RWS), currently pending in U.S. District Court in the Eastern District
of Missouri (the “Litigation”). As you know, each of you has been
named as a third-party defendant to claims asserted by Diversified
Ingredients, Inc. in the Litigation. In addition, each of you may be
called as a witness with respect to the Litigation or to parallel class
action litigation also pending in the Eastern District of Missouri.
We do not undertake to represent you in connection with any matter
other than the Litigation or the class action litigation.
As you know, we are already representing Wilbur-Ellis with
respect to the Litigation as well as the class action litigation and
related matters and, if you agree, we would jointly represent each of
you together with Wilbur-Ellis with respect to the Litigation as
described above. Wilbur-Ellis Company has agreed to pay our fees and
expenses incurred in representing you, so we will not be charging you
for this representation.
You each have the option of hiring your own counsel, who would
represent only you and not any of the other[s] we would represent
jointly. We understand that Mr. Haning and Mr. Harwell have each
done so and will be separately represented by their respective individual
counsel in addition to being jointly represented by our firm. And, each
of you could and should consider retaining separate counsel at any time
you wish to obtain legal advice about this matter from an attorney
whose only responsibility is to you. Being jointly represented, on the
other hand, obviously provides certain strategic and other advantages,
including savings over the costs that otherwise would be incurred were
each party to retain separate counsel. But it also has implications of
which each of you should be aware. Notably, there may be
circumstances where it could be preferable for you to have separate
counsel. There are issues where your interests and those of WilburEllis may conflict or potentially conflict as the Litigation proceeds.
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These could include the scope of employment of Rosser employees, the
scope of awareness at American By-Product and Wilbur-Ellis as to any
alleged wrongdoing by Rosser employees, the force and content of
policies of American By-Product and Wilbur-Ellis, to name a few. In
addition, in order to develop fully the factual record relevant to
potential defenses for Wilbur-Ellis or one of you, we may need to
seek information from you or to ask you questions in deposition.
Notwithstanding these potential issues, each of you has expressed that,
to coordinate a defense to Diversified Ingredients’ claims and the
Litigation generally, and to keep legal costs to a minimum, you wish
our law firm to represent each of you in a joint representation with,
along with Wilbur-Ellis.
It is also possible that, in the course of our representation, matters
for decision may arise on which one or more of you and Wilbur-Ellis
do not agree, such as whether to accept a global settlement proposal,
what strategy to take with respect to a particular issue, or some other
issue for decision. If such a disagreement emerges and cannot be
satisfactorily resolved among you, we will not be able to represent all
of you with respect to the issue in dispute. In such an event, we might
be obliged to discontinue representing you, though we would be free to
continue representing Wilbur-Ellis. Accordingly, if a matter of
adversity arises between you and Wilbur-Ellis, you agree that we
will have the right to (a) terminate our representation of you, and
(b) continue to represent Wilbur-Ellis with respect to the
Litigation.
We have confirmed from our records that we do not have any
outstanding representation of another client on any matter that is
adverse to you. Without your prior consent, we will not undertake any
adverse representation in the future in a matter that is substantially
related to this matter. In addition, you consent to our representing
clients in the following two circumstances, in each case provided that
the matter on which we represent another client is not substantially
related to any matter in which we represent or previously represented
you: First, you consent to our representing another client in a
transactional, counseling, litigation, legislation or other matter in which
the other client is adverse to you. Second, with respect to a party who
is adverse to you in a matter in which we do represent you, you consent
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to our representing that party as a client in another matter in which it is
not adverse to you.
You understand and agree that there will be no confidences
between us and Wilbur-Ellis regarding our work in connection
with this joint representation. In other words, if we receive any
confidential information from or about you that we believe WilburEllis should have in order to make decisions regarding the subject
of your representation, we will give it that information. On the other
hand, if Wilbur-Ellis requests that we not provide you with certain
information, we will keep that information from you and continue to
represent you so long as we believe that we can do so without there
being any adversity between you and Wilbur-Ellis and that we can
adequately represent your interests. Although, as described, the
attorney-client privilege may not apply as between you and
Wilbur-Ellis, it will still have application with regard to the rest of
the world, and we will not disclose any of your confidences to third
parties without your consent.
…
…
I trust this letter accurately states our mutual understanding. If
you have questions about any aspect of it, please let me know promptly;
otherwise, I would appreciate your confirming our understanding by
signing and returning a copy of this letter to me. In addition, you may
wish to consult independent counsel of your choice about the
disclosures made and the conflicts of interest sought in this letter.
This engagement letter was sent to Haning, through Haning’s independent
counsel, on September 28, 2015. Haning signed and returned the engagement letter,
again through his independent counsel, on October 2, 2015.

Covington then

represented Haning until it notified him in March 2016 that it could no longer
represent both his interests and the interests of Wilbur-Ellis. The claims against
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Haning in this case were later dismissed, though Haning did plead guilty to two
related federal charges in October 2019.
Earlier this year, on July 22, 2022, Haning received a notice of deposition
from counsel for Plaintiff The Blue Buffalo Company, Ltd. for a deposition
scheduled for August 23, 2022.

In response, Haning inquired into whether

Covington intended on participating in the deposition. Covington confirmed that it
intended on participating and, shortly thereafter, sent Haning a cross-notice of
deposition and a subpoena on behalf of Wilbur-Ellis. Haning responded to the crossnotice of deposition and subpoena by noting that he disputed Covington’s ability to
depose him as a former client.
After the parties agreed to postpone Haning’s deposition, Haning submitted
to the Special Master a motion for a protective order preventing Covington from
deposing him, claiming that Rule 4-1.9 of the Missouri Rules of Professional
Conduct precludes Covington from taking such action.1 The Special Master denied
Haning’s motion in Order No. 17, which was entered on September 26, 2022.

Haning asserts that the Special Master’s Order No. 17 incorrectly claims that he is seeking to
preclude Wilbur-Ellis from deposing him. (Doc. 1752 at p. 5 n.3). According to Haning, “[he]
has never claimed that Wilbur-Ellis is disqualified from taking his deposition—his claim has
always focused on his former counsel.” (Id.) The motion submitted to the Special Master is not
in the record before me, so the discussion in this Memorandum and Order will proceed based on
Haning’s assertion and address only whether Haning has established “good cause” for the issuance
of a protective order barring Covington from deposing him.
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Haning then filed a timely objection to the Special Master’s Order No. 17 pursuant
to Rule 53(f) of the Federal Rules of Civil Procedure.
Haning argues that the Special Master’s Order No. 17 is erroneous in three
respects: (1) “the Order unjustifiably places a burden on Haning to prove that
Covington has received confidential and privileged information from him by
disclosing those very confidential and privileged communications;” (2) “the Order
incorrectly concludes that ‘without proof’ Covington will reveal information relating
to its representation of Haning at a deposition, there is no basis to bar Haning’s
former lawyers from deposing him;” and (3) “the Order is imprecise concerning
whether Missouri Rule of Professional Conduct 4-1.9(c) is waivable.”
DISCUSSION
Haning’s objection to the Special Master’s Order No. 17 will be overruled
because Rule 4-1.9 of the Missouri Rules of Professional Conduct does not provide
a basis for barring Covington from deposing him. Rule 4-1.9 provides that:
(a) A lawyer who has formerly represented a client in a matter shall not
thereafter represent another person in the same or a substantially related
matter in which that person’s interests are materially adverse to the
interests of the former client unless the former client gives informed
consent, confirmed in writing.
(b) A lawyer shall not knowingly represent a person in the same or a
substantially related matter in which a firm with which the lawyer
formerly was associated had previously represented a client:
(1) whose interests are materially adverse to that person; and
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(2) about whom the lawyer had acquired information protected
by Rules 4-1.6 and 4-1.9(c) that is material to the matter; unless
the former client gives informed consent, confirmed in writing.
(c) A lawyer who has formerly represented a client in a matter or whose
present or former firm has formerly represented a client in a matter shall
not thereafter:
(1) use information relating to the representation to the
disadvantage of the former client except as these Rules would
permit or require with respect to a client or when the information
has become generally known; or
(2) reveal information relating to the representation except as
these Rules would permit or require with respect to a client.
Mo. Sup. Ct. R. 4-1.9. In arguing that the Special Master’s Order No. 17 is
erroneous, Haning appears to rely on Rule 4-1.9(c).

The discussion in this

Memorandum and Order will therefore focus on that subsection. I will briefly note,
however, that I agree with the Special Master’s determination that Haning waived
any complaints based on Rule 4-1.9(a) and (b) by providing informed consent,
confirmed in writing.2

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As explained by the Special Master, the Covington engagement letter was clear that: (1) Haning
could be a witness in this case; (2) Covington was already representing Wilbur-Ellis; (3) Covington
could seek information from Haning or ask him questions in a deposition; (4) there would be no
confidences between Covington and Wilbur-Ellis regarding Covington’s work in connection with
the joint representation; and (5) Covington retained the right to terminate its representation of
Haning and continue representing Wilbur-Ellis if a matter of adversity between the two arose.
Haning signed and returned the Covington engagement letter through his independent counsel. In
light of these facts, I agree with the Special Master that Haning waived any complaints based on
Rule 4-1.9(a) and (b) by providing informed consent, confirmed in writing.

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Based on the record before me, I also agree with the Special Master’s
determination that Covington should not be barred from deposing Haning based on
Rule 4-1.9(c). Haning argues that there is a presumption under Rule 4-1.9 that he
disclosed confidences to Covington during their attorney-client relationship. While
that may be true, see State ex rel. Thompson v. Dueker, 346 S.W.3d 390, 397 n.4
(Mo. Ct. App. 2011) (suggesting that there is a presumption in Rule 4-1.9 cases that
confidences were disclosed during a prior attorney-client relationship), such a
presumption does not resolve the specific question of whether Covington should
now be barred from deposing Haning based on Rule 4-1.9(c).
Rule 4-1.9(c) prohibits lawyers from: (1) using information relating to the
representation of a former client to the disadvantage of the former client except as
the Rules of Professional Conduct would permit or require or when the information
has become generally known; and (2) revealing information relating to the
representation of a former client except as the Rules of Professional Conduct would
permit or require. Mo. Sup. Ct. R. 4-1.9(c). Here, it is not apparent from anything
in the record that Covington will use information relating to its representation of
Haning (that has not become generally known) to his disadvantage or that Covington
will reveal such information in his deposition, and Haning has not provided any real
explanation of how Covington might do so. Haning merely states, in cursory
fashion, that “Covington cannot possibly depose [him] without using his confidences
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against him to his disadvantage” and that “Covington now seeks to … disclose [his]
confidences to the outside world without his consent. (Doc. 1752 at pp. 2–3).
Even accepting Haning’s contention that there is a presumption that he
disclosed confidences to Covington during their attorney-client relationship, I find
that he has not made a sufficient showing that Covington is certain, or at least likely,
to violate Rule 4-1.9(c) so as to justify barring Covington from deposing him. In the
absence of such a showing, I find that Haning has not established “good cause” for
the issuance of the protective order he seeks. See Fed. R. Civ. P. 26(c)(1) (a court
may issue a protective order “for good cause”).
Accordingly,
IT IS HEREBY ORDERED that Non-Party Witness William Douglas
Haning’s objection to the Special Master’s Order No. 17 [1752] is OVERRULED.

RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE

Dated this 14th day of October 2022.

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