Blue Buffalo Co., Ltd. v. Nestle Purina PetCare Company

Filing 160

MEMORANDUM AND ORDER : IT IS HEREBY ORDERED that Non-Party Subpoena Respondent Leo Burnett Company, Inc.'s motion to quash Plaintiff Blue Buffalo's subpoena for documents # 137 is GRANTED in part and DENIED in part. To the extent the mo tion is granted, the subpoena is quashed without prejudice. To the extent the motion is denied, Leo Burnett shall produce the marketing analytics documents. IT IS FURTHER ORDERED that Blue Buffalo and Leo Burnett shall meet and confer in an effort to reach agreement on the details of a cost-shifting arrangement.. Signed by District Judge Rodney W. Sippel on 2/23/16. (LGK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
THE BLUE BUFFALO COMPANY LTD.,
Plaintiff,
vs.
NESTLÉ PURINA PETCARE COMPANY,
Defendant.

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Case No. 4:15 CV 384 RWS

MEMORANDUM AND ORDER
This matter is before me on Non-Party Subpoena Respondent Leo Burnett Company,
Inc.’s motion to quash Plaintiff Blue Buffalo’s subpoena for documents. Familiarity with this
case and its history is presumed. Blue Buffalo opposes the motion to quash, and I heard oral
argument on this matter on February 16, 2016. For the reasons that follow, I will grant in part
and deny in part Leo Burnett’s motion.
Discussion
Leo Burnett provides advertising services to Defendant Nestle Purina. Blue Buffalo
served a subpoena on Leo Burnett seeking documents mostly related to its marketing research
and advertising work for Purina and the products that are at issue in this case. Leo Burnett
argues that the subpoena should be quashed because any documents in its possession should be
produced by Purina first, any documents in its possession that are not also in Purina’s possession
are not relevant, the requests are premature and overbroad, and producing the documents would
be unduly burdensome. Leo Burnett also moves to recover attorney’s fees to compensate it for
its efforts in responding to the subpoena. In the alternative, if I do not quash the subpoena, Leo
Burnett asks that I order Blue Buffalo to pay its fees and the costs of the production.

BB has agreed to only seek documents not in Purina’s possession. In its briefs and at oral
argument, the only examples of documents Blue Buffalo provides for such documents are
“customer research and marketing analytics documents” and instructions Leo Burnett might have
received orally from Purina and then memorialized. Blue Buffalo argues that these documents
are relevant to what Purina intended its advertisements to say and if the advertisements were
misleading in the advertisers’ eyes.
As the parties note, the issue raised by this motion is similar to an issue I addressed in a
different case involving these same parties, Nestle Purina Petcare Company v. Blue Buffalo
Company, Ltd., 4:14 CV 859 RWS. In that case, I previously granted non-party the Invus
Group’s motion to quash a subpoena served on it by Purina because “the preferred course of
discovery is for Purina to obtain any relevant and responsive discovery regarding its relationship
with the Invus Group from Blue Buffalo first, before burdening non-party the Invus Group with a
subpoena, if necessary.” See 4:14 CV 859 RWS, Order of September 23, 2015 [#464].
The same reasoning applies here. Quashing the Leo Burnett subpoena, at least in most
part, is proper under FRCP 26(b)(2)(C) (“[T]he court must limit the . . . extent of discovery . . . if
(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some
other source that is more convenient, less burdensome, or less expensive”) and FRCP
45(d)(3)(A)(iv) (“[T]he court . . . must quash or modify a subpoena that (iv) subjects a person to
undue burden.”). Although Blue Buffalo has represented that it will not seek duplicative
production, until Purina completes its production,1 Leo Burnett does not necessarily know which
of its responsive documents are duplicative of Purina’s documents. Additionally, Leo Burnett
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As discussed at the February 16, 2016 status conference in this matter, Purina is expected to accelerate its
document production and report back to the Court at the next scheduled status conference, at which point a more
definite schedule will be set. While the exact deadline for Purina to complete its document production has not yet
been set, the parties have proposed completion dates ranging from sometime between mid-April 2016 and the end of
September 2016.
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has represented that undertaking the production sought here would cost hundreds of thousands of
dollars. While I understand Blue Buffalo’s frustration in having to wait for Purina’s production
before seeking these documents from Leo Burnett, there is value in sequencing discovery,
especially where, as here, the production would be extensive, costly, and impose an undue
burden on a non-party.
This ruling, however, should not be read to mean that no third party discovery is
appropriate until the parties to the action complete their own document productions. Nor is Blue
Buffalo prevented from seeking this discovery from Leo Burnett at a later date when the parties
are better able to define which documents would be duplicative and when the burden of
production would not be so great.
Additionally, I limit my holding to one exception, in which regard I deny the motion to
quash: Leo Burnett shall produce the customer research and marketing analytics documents it
represented that it has already compiled and had tentatively agreed to produce during its meet
and confer sessions with Blue Buffalo. Because Leo Burnett has already compiled those
documents, there is little burden in asking it to produce them now.
Finally, because I am mostly granting the motion to quash the subpoena, and to the extent
that I require Leo Burnett to produce certain marketing analytics documents, because I cannot
find, based on the information before me, that production would be significant or an undue
burden, I will not award attorney’s fees to Leo Burnett at this time. See FRCP 45(d). However,
I will consider ordering Blue Buffalo to reimburse Leo Burnett for the costs of the production.
Blue Buffalo and Leo Burnett shall meet and confer in an effort to reach agreement on the details
of a cost-shifting agreement.

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Additionally, I will deny Leo Burnett’s request for sanctions and attorney’s fees for its
attorneys’ efforts responding to the subpoena. I do not find that Blue Buffalo unreasonably
imposed an undue burden or expense on Leo Burnett in serving the subpoena or in the course of
their negotiations. See FRCP 45(d)(1).
Accordingly,
IT IS HEREBY ORDERED that Non-Party Subpoena Respondent Leo Burnett
Company, Inc.’s motion to quash Plaintiff Blue Buffalo’s subpoena for documents #[137] is
GRANTED in part and DENIED in part. To the extent the motion is granted, the subpoena is
quashed without prejudice. To the extent the motion is denied, Leo Burnett shall produce the
marketing analytics documents.
IT IS FURTHER ORDERED that Blue Buffalo and Leo Burnett shall meet and confer
in an effort to reach agreement on the details of a cost-shifting arrangement.

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RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE
Dated this 23rd day of February, 2016.

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