Newkirk et al v. Conagra Foods, Inc. et al
ORDER granting 1 Motion to Quash Deposition Subpoenas; granting 26 and 43 Motions to Seal; denying 48 Motion to Strike ; denying 47 and 49 Motions for Leave to File Surreply Brief. A party may object to this order by filing an "Objection to Magistrate Judge's Order" within 14 days after being served with the order. The objecting party must comply with all requirements of NECivR 72.2. Ordered by Magistrate Judge F. A. Gossett. (CLS, )
IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF NEBRASKA L A R R Y I. NEWKIRK and RUTH A. NEWKIRK, P l a i n t if fs , vs. C O N A G R A FOODS, INC., a Delaware c o r p o r a tio n ; SYMRISE, INC., a New J e r s e y Corporation; and CHR. H A N S O N INC., a Wisconsin C o r p o r a tio n , D e f e n d a n t s, M c G R A T H NORTH MULLIN & K R A T Z , PC LLO; SANDRA MORAR; a n d CONAGRA FOODS, INC., M o v a n t s. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )
8 : 1 0 - c v -2 2 - L S C - F G 3 M E M O R A N D U M AND ORDER
(Related Case No. CV-08-00273-FVS, U.S. District Court, E.D. Wash.)
T h is discovery dispute is before the magistrate judge pursuant to 28 U.S.C. § 636 and N E C iv R 72.1 for full pretrial supervision and resolution of the Motion to Quash and for P r o te c tiv e Order filed by McGrath North Mullin & Kratz, PC LLO ("McGrath North"), Ms. S a n d ra Morar, Esq., and ConAgra Foods, Inc. ("ConAgra") (together, "Movants"). The s u b p o e n a s in question were issued by this court, see Fed. R. Civ. P. 45(a)(2). u n d e rlyin g litigation is pending in the Eastern District of Washington. T h e court finds that the motion to quash should be granted. The
N A T U R E OF THE CASE In this products liability case, the underlying First Amended Complaint alleges that p la in tif f Larry Newkirk regularly prepared four to six bags of microwave popcorn each day f ro m about 1989 through September 2007, including specifically microwave popcorn sold u n d e r the label "Act II Butter" or "Act II Butter Lovers." These products were produced by th e defendant, ConAgra. In the course of cooking the microwave popcorn in his microwave a n d preparing to eat it, Mr. Newkirk was exposed to the flavoring compound diacetyl as the b u tter flavoring became heated and vaporized. Plaintiffs allege that Mr. Newkirk's exposure to the popcorn and natural and artificial butter flavorings directly and proximately caused p e r s o n a l injury, i.e., "sustained, severe, permanent, and/or progressive damage to the lungs, s e v e re damage to the respiratory system, and/or impairment of the ability to function, in c lu d in g , but not limited to: bronchiolitis obliterans, severe and progressive damage to the re sp ira to ry system, extreme shortness of breath and reduced life expectancy." (Doc. 3-7, A m e n d e d Complaint at ¶¶ 24-26). In December 2009, plaintiffs' counsel served subpoenas (Docs. 3-3 & 3-4) on the M c G ra th North law firm and McGrath North attorney Sandra Morar commanding the p ro d u c tio n of seven categories of documents relating to work the firm performed for C o n A g r a concerning diacetyl, microwave popcorn or lung disease. The subpoenas also c o m m a n d e d McGrath North and/or Ms. Morar to appear for deposition, i.e.,
t o produce for examination a representative who is able to testify on the f o l lo w in g subjects: 1. D ia c etyl, microwave popcorn and the potential to emit organic compounds o r to cause health hazard including any work performed for you, at your d ire c tio n or in which you participated with those persons described above. If you contend that this work was conducted for litigation, produce s o m e o n e to describe the litigation.
S a n d ra Morar has practiced law at the McGrath North law firm since she was admitted to the bar in 1988. She initially stated that the two deposition topics relate to certain legal s e rv ic e s she performed for ConAgra in the course of her legal practice at McGrath North. A ny testimony she could provide on the topics designated by the plaintiffs, either individually o r as a representative of McGrath North, (1) should be subject to the attorney-client privilege a n d /o r work product doctrine because it would reflect her legal advice to ConAgra and the p riv ile g e d information she received in rendering that legal advice; or (2) could be obtained f ro m other witnesses who are not attorneys. (Doc. 3-1, Declaration of Sandra Morar). No attorney from the McGrath North law firm is acting as trial counsel in the Newkirk c a s e . ConAgra's trial attorney, Corey L. Gordon, advised that the plaintiffs have had the o p p o rtu n ity to conduct discovery since November 2008. As of January 6, 2010, the plaintiffs h a d served requests for admissions, two sets of interrogatories and three requests for p rod u ctio n of documents; deposed three ConAgra fact witnesses; and deposed four expert w itn e ss e s engaged by ConAgra. ConAgra has produced over 10,000 pages of documents to th e plaintiffs. (Doc. 3-5, Declaration of Corey L. Gordon).
T h e narrow issue actually presented in this court by the Movants was whether the d e p o sitio n notice(s) should be quashed pursuant to Rules 45(c)(3) or 26(c) of the Federal R u les of Civil Procedure, or Shelton v. American Motors Corp., 805 F.2d 1323 (8th Cir. 1 9 8 7 ). The plaintiffs chose to respond by filing a 23-page brief arguing the merits of their s u b s ta n tiv e claims, together with over 200 pages of evidence, most of which they had already o b ta in e d from ConAgra in the underlying action. P la in tif f s assert that ConAgra has waived any privilege or work product protection as to the work provided by the McGrath North law firm due to ConAgra's production during d isc o v e ry of a report entitled "Evaluation of Microwave Popcorn Potential to Emit Organic C o m p o u n d s " (the "Aspen Report") prepared in 2005 by Aspen Research Corporation. (Doc. 2 7 , Plaintiffs' Brief at pp. 2 & 10). The Aspen Report was prepared for the McGrath North l a w firm and was addressed to Ms. Morar's attention. Plaintiffs verify in their brief that C o n A g ra also produced certain documents relating to investigations of popcorn plants c o n d u c te d by the National Institute for Occupational Safety and Health (NIOSH), an o rg a n iz a tio n which studies worker health hazards. In the same paragraph in which they a c k n o w le d g e the NIOSH studies did not pertain to ordinary consumers' exposure to the p ro d u c ts at issue, plaintiffs accuse ConAgra of conducting "secret studies under the cloak of la w ye rs ." (Doc. 27, Plaintiffs' Brief at p. 4). The plaintiffs contend that they should be a llo w e d to depose Ms. Morar and McGrath North as fact witnesses, based on their s p e c u l a tio n that counsel's participation in the various studies "was more likely for business -4-
o r technical purposes, not litigation." (See Doc. 27, Plaintiffs' Brief at p. 10). In their c o n c lu d in g paragraphs, the plaintiffs accuse ConAgra of engaging in a "fraudulent scheme to investigate its own products' dangerous propensities and then shroud the investigation and its findings under the veil of privilege." (Doc. 27, Plaintiffs' Brief at p. 20).1 T h e local rules of practice permit the filing of a reply brief; however, "the reply brief m a y not merely repeat the moving party's initial arguments, but rather must address factual o r legal issues raised in the opposing brief." NECivR 7.0.1(c). The Movants did file a reply b rie f and evidence index (Docs. 44 & 45), appropriately addressing the expansive factual a lle g a tio n s and legal issues raised in the plaintiffs' opposing brief.2 In response to the allegations made in the plaintiffs' opposing brief, Sandra Morar s u b m itte d a second declaration stating that she and the McGrath North firm have provided re p re se n tatio n to ConAgra for over 30 years. During the course of providing legal advice to C o n A g ra , Morar learned from experience that there was a possibility of a variety of litigation in v o lv in g widely distributed food products. By 2000, she anticipated the possibility of litig a tio n involving microwave popcorn. Morar states that she performed legal services for
In their response brief, the plaintiffs also complain that "many" documents listed on ConAgra's privilege log are not privileged and are inadequately described. They state that "a more thorough review must be made." (Doc. 27 at pp. 2 & 15). The issues presented in this district pertain solely to the deposition subpoenas served on the McGrath North law firm and Sandra Morar. If any review of ConAgra's privilege log is conducted, it will not be done in this court. See Fed. R. Civ. P. 37(a)(2). The court will deny the plaintiffs' motion to strike portions of the Movants' reply brief. Plaintiffs' motions for leave to file a surreply brief will also be denied.
an d advised ConAgra regarding microwave popcorn litigation relating to ConAgra e m p lo ye e s starting by 2000. When the lawsuits by workers were filed, Morar provided legal a d v ic e to ConAgra regarding that litigation. She further anticipated possible litigation in c lu d in g , among other things, claims from and against flavor manufacturers, contribution a n d indemnity issues arising from workers cases, workers compensation claims, and direct w o rk e r claims. Mr. Morar states that she was involved in dealing with scientists or c o n su ltin g experts, as depicted in the plaintiffs' brief, in order to provide legal advice and to e v a lu a te the technical information they provided in the course of giving legal advice. (Doc. 4 5 -1 , Declaration of Sandra D. Morar). One of ConAgra's trial attorneys, Micah Hines, states by declaration that ConAgra did p ro d u c e the Aspen Report and an Addendum to it. On February 3, 2010, plaintiffs deposed K u rt Heikkila, who was the head of the Aspen project and the person most knowledgeable a b o u t the Aspen Report. On January 12, 2010, plaintiffs deposed Mr. Rodney Williams, one o f ConAgra's experts who was also intimately involved in the Aspen Project. ConAgra states th a t it has produced over 10,000 pages of non-privileged documents, "thousands" of which r e la te to the science underlying the Aspen Report. ConAgra also designated five Rule 3 0 (b )(6 ) witnesses, many of whom couldand didspeak to the issues on which plaintiffs se e k to depose Ms. Morar and McGrath North. Plaintiffs had the opportunity to obtain in f o rm atio n regarding certain communications with the EPA (see Docs. 28-13, 28-16 & 281 7 , Plaintiffs' Exhibits M, P & Q ), during their deposition of Mr. James Montealegre, -6-
C o n A g ra 's Rule 30(b)(6) witness on communications with the EPA. Mr. Montealegre was the author of some of the communications. Mr. Hines advises that Mr. Monteleagre and Mr. W a yn e Waite (a recipient of Mr. Monteleagre's communications) were designated as Rule 3 0 (b )(6 ) witnesses on the subject of NIOSH investigations. They have already been deposed o n the topics designated in the subpoenas served on Ms. Morar and McGrath North. The M o v a n ts ' reply brief and evidence persuasively demonstrate that the plaintiffs could have o b tain e d information, from the most knowledgeable witnesses, about most of the documents in c lu d e d in plaintiffs' 238-page evidentiary submission (Doc. 28) by simply inquiring about th o s e matters during the Rule 30(b)(6) and expert witness depositions. L E G A L ANALYSIS T h e scope of discovery in federal civil actions is set out in Rule 26(b)(1) of the F e d e ra l Rules of Civil Procedure, which allows discovery of "any nonprivileged matter that is relevant to any party's claim or defense including the existence, description, nature, c u sto d y, condition, and location of any documents or other tangible things and the identity an d location of persons who know of any discoverable matter." For good cause, the court m a y order discovery of "any matter relevant to the subject matter involved in the action." T h e scope of discovery, however, may be subject to certain limitations. A . R u le s 26(b)(2) and 45(c)(3) P u r s u a n t to Rule 26(b)(2)(C), the court may limit discovery if the court determines th a t: -7-
(i) the discovery sought is unreasonably cumulative or duplicative, or can b e obtained from some other source that is more convenient, less burdensome, o r less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the in f o rm a tio n by discovery in the action; or (iii) the burden or expense of the proposed discovery outweighs its likely b e n e fit, considering the needs of the case, the amount in controversy, the p a rtie s' resources, the importance of the issues at stake in the action, and the im p o rtan ce of the discovery in resolving the issues.). F ed . R. Civ. P. 26(b)(2)(C). U n d e r Rule 45(c)(3), the court must quash a subpoena if it "requires disclosure of p riv ile g e d or other protected matter, if no exception or waiver applies." Fed. R. Civ. P. 4 5 (c )( 3 )( A )( iii) . The Federal Rules of Civil Procedure do not themselves exempt attorneys from being a source of discoverable facts. In United Phosphorus, Ltd. v. Midland Fumigant, Inc., 164 F .R .D . 245, 247 (D. Kan. 1995), the court observed: F e d . R. Civ. P. 26(b)(3)3 clearly contemplates discovery from attorneys as w e ll as from the parties themselves or their agents. When work product is
Rule 26(b)(3), as amended, provides, in part: (A) Documents and Tangible Things. Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent). But, subject to Rule 26(b)(4) [experts], those materials may be discovered if: (i) they are otherwise discoverable under Rule 26(b)(1); and (ii) the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means. (B) Protection Against Disclosure. If the court orders discovery of those materials, it must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation.
so u g h t under Rule 26(b)(3), such discovery is limited to circumstances where th e party seeking discovery can establish a substantial need and an inability to o b ta in the substantial equivalent by other means. The burden of establishing th e criteria set forth in Rule 26(b)(3) is upon the party seeking discovery. N e ith e r the criteria for determining the appropriateness of discovery or the b u rd e n of establishing the existence of the criteria are altered because the d o cu m e n ts were prepared by or in the custody of an attorney. Not only are a tto rn e ys not exempt from this rule, discovery from them is clearly c o n te m p l a te d . It is inconceivable that had the drafters of the Federal Rules of C iv il Procedure, the Supreme Court or Congress intended to exempt attorneys f r o m the provisions of Rule 30 or to otherwise limit discovery from attorneys, th e y would not have included a provision in Rule 30 similar to that contained in Rule 26(b)(3). Had the Court or Congress intended to engraft a preliminary s h o w in g when deposition discovery was sought from attorneys, such an e x c ep tio n would likely have been found in Rule 30 or otherwise within the R u le s of Civil Procedure. Attorneys with discoverable facts, not protected by a tto r n e y -c lie n t privilege or work product, are not exempt from being a source fo r discovery by virtue of their license to practice law or their employment by a party to represent them in litigation. (E m p h a s is added). Within the Eighth Circuit, the leading case on deposing the trial counsel of an adverse p a rty has been Shelton v. American Motors Corp., 805 F.2d 1323 (8th Cir. 1986). In Shelton, th e Court of Appeals c a u tio n e d against the potential problems caused by deposing opposing counsel a n d developed a three-prong test that a party must satisfy in order to depose the o p p o s itio n 's attorney. See [Shelton, 805 F.2d] at 1327. A party must show that " (1 ) no other means exist to obtain the information than to depose opposing c o u n se l, (2) the information sought is relevant and nonprivileged, and (3) the in f o rm a tio n is crucial to the preparation of the case." Id. This difficult burden im p o s e d by Shelton was intended to guard against the "harassing practice of d e p o sin g opposing counsel ... that does nothing for the administration of ju s tic e but rather prolongs and increases the costs of litigation, demeans the p ro f e s s io n , and constitutes an abuse of the discovery process." Id. at 1330.
P a m id a , Inc. v. E.S. Originals, Inc., 281 F.3d 726, 729-30 (8th Cir. 2002). The court s u b s e q u e n tly stated in Pamida v. E.S. Originals that its decision in Shelton was intended "to p ro tec t against the ills of deposing opposing counsel in a pending case which could p o te n t ia lly lead to the disclosure of the attorney's litigation strategy.... Because this abuse o f the discovery process had become an ever increasing practice, this Court erected the S h e lto n test as a barrier to protect trial attorneys from these depositions." 281 F.3d at 730. B u t Shelton was not intended to provide heightened protection to attorneys w h o represented a client in a completed case and then also happened to re p re se n t that same client in a pending case where the information known only b y the attorneys regarding the prior concluded case was crucial. In such c irc u m s ta n c es , the protection Shelton provides to opposing counsel only a p p lie s because opposing counsel is counsel in the instant case and not because o p p o s in g counsel had represented the client in the concluded case. Id. Plaintiffs contend that Shelton does not apply in this case because Morar and McGrath N o rth are not ConAgra's trial attorneys in the Newkirk litigation. The"trial attorney" at issue in Shelton, however, was actually an in-house attorney who was assisting with the trial of the c a se . The principles announced in Shelton were not limited to "trial" attorneys, and this court d o e s not construe the factually-distinguishable 4 Pamida v. E.S. Originals to hold otherwise. S e e Desert Orchid Partners, LLC. v. Transaction Sys. Architects, Inc., 237 F.R.D. 215, 220
Plymouth Indus., LLC v. Sioux Steel Co., 2006 WL 695458 (D. Neb. 2006), a patent infringement case, is also distinguishable. In Plymouth Indus., this court found that the deposition of the attorney who prosecuted the patent in suit was crucial to the defense of inequitable conduct. Accord Ed Tobergte Associates Co. v. Russell Brands, LLC, 259 F.R.D. 550, 559 & n.46 (D. Kan. 2009) (Shelton factors were met).
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(D . Neb. 2006). As one court has observed, "the allusion to trial attorneys is unrelated to the [ P a m id a ] court's holding and nowhere in the decision is any effort made to create a d is tin c tio n based upon the attorney's status. Certainly, in light of Shelton's specific a p p lic a tio n to in-house attorneys, such a distinction, if intended, would have represented a s ig n if ic a n t departure from precedent that would not have gone unexplained." Massillon M g m t., LLC v. Americold Realty Trust, 2009 WL 614831 at *4 n.6 (N.D. Ohio Jan. 21, 2 0 0 9 ). The court concludes the Shelton test applies in this instance. Although Ms. Morar and M c G ra th North are not ConAgra's trial attorneys in the Newkirk litigation, they have provided lega l advice to ConAgra for many years, including legal advice involving workers' exposure to diacetyl in popcorn plants. The plaintiffs want to depose Ms. Morar on the very broadlys ta te d topics of "diacetyl, microwave popcorn and the potential to emit organic compounds o r to cause health hazard[s]." These are issues upon which Ms. Morar provided legal s e rv ic e s and advice to ConAgra in anticipation of litigation. A p p lyin g Shelton, this court would allow the plaintiffs to depose ConAgra's attorneys o n ly if the plaintiffs succeeded in showing that (1) no other means exist to obtain the in f o rm a tio n than to depose opposing counsel, (2) the information sought is relevant and n o n p riv ile g e d , and (3) the information is crucial to the preparation of the case. The plaintiffs h a v e not met this burden. Clearly, ConAgra has already produced the Aspen Report, th o u s a n d s of pages of related non-privileged documents, and documents relating to the -11-
N IO S H studies. The persons most knowledgeable on these documents and issues were a lre a d y made available for deposition and have been deposed by the plaintiffs. ConAgra has a lre a d y provided the plaintiffs with relevant, nonprivileged information covering the p ro p o s e d deposition topics. The plaintiffs have no need to depose ConAgra's attorneys, and th e information sought is not crucial to the preparation of their case. In the alternative, the court finds that the Movants are entitled to relief under Fed. R. C iv . P. 26(b)(2)(C)(i) and (ii), because the discovery sought by the plaintiffs is unreasonably cu m u la tiv e or duplicative and can be obtained from some other source that is more c o n v e n ien t, less burdensome, or less expensive, and the plaintiffs have had ample o p p o rtu n ity to obtain the information by discovery in the underlying action. ORDER F o r the reasons discussed above, I T IS ORDERED: 1 . The Motion to Quash and for Protective Order (Doc. 1) is granted. The deposition s u b p o e n a s served on McGrath North Mullin & Kratz, PC LLO and Ms. Sandra Morar, Esq. a re hereby quashed. 2 . T h e parties' motions for leave to file documents under seal (Docs. 26 & 43) are g ra n te d , based on counsel's representations that the documents in question are subject to a p ro te c tiv e order in the underlying litigation. 3 . P la in tif f s' Motion (Doc. 48) to Strike portions of Movants' response brief is denied. -12-
4 . P la in tif f s' Motions for leave to file a surreply brief (Docs. 47 & 49) are denied. A party may object to this order by filing an "Objection to Magistrate Judge's Order" w ith in 14 days after being served with the order. The objecting party must comply with all re q u ire m e n ts of NECivR 72.2. DATED May 27, 2010. B Y THE COURT: s / F.A. Gossett U n ite d States Magistrate Judge
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