Riseandshine Corporation v. Pepsico, Inc.

Filing 266

ORDER: Having reviewed the parties' submissions, and having heard the parties' arguments during the lengthy discovery conference held today, May 6, 2022, the Court orders as follows: Pepsi's request for an order compelling RiseandShine "to produce documents responsive to these RFPs, or if it is unable to locate responsive documents, to file written responses stating that no documents exist and outlining steps taken to attempt to locate them" is DENIED WITHOUT PREJUDICE. RiseandShine shall promptly identify ten withheld third-party communications concerning the use of "Rise" as to which it believes Fed. R. Evid. 408 may apply (the "Rule 408 Exemplars"). As discussed at the conference, the Rule 408 Exemplars shall include communications with "Rise Up," if any exist. The Court will conduct an in camera review of the Rule 408 Exemplars to determine relevance and the applicability of Rule 408. RiseandShine's request for an order compelling Pepsi to produce documents and information responsive to its requests regarding Starbucks Nitro is DENIED WITHOUT PREJUDICE, pending the resolution of Pepsi's objections to this Court's Order dated April 14, 2022 (ECF No. 221) and Starbucks' motion to intervene. (ECF Nos. 240; 255). The parties are directed to order a transcript of today's conference. (And as further set forth in this order) (Signed by Magistrate Judge Sarah L Cave on 5/6/2022) (ne)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
RISEANDSHINE CORPORATION,
-v-

Plaintiff,
CIVIL ACTION NO.: 21 Civ. 6324 (LGS) (SLC)

PEPSICO INC.,
Defendant.

ORDER

SARAH L. CAVE, United States Magistrate Judge.
Before the Court are several discovery disputes raised by Plaintiff RiseandShine Co.
(“RiseandShine”) and Defendant PepsiCo, Inc. (“Pepsi”): (i) Pepsi’s April 14, 2022 letter seeking
to compel certain discovery from RiseandShine (ECF Nos. 223, 224 (“Pepsi’s Apr. 14 Letter”));
(ii) Pepsi’s April 29, 2022 letter seeking to compel certain discovery from RiseandShine
(ECF Nos. 244, 245 (together with Pepsi’s Apr. 14 Letter, “Pepsi’s Letters as to RiseandShine”));
(iii) Pepsi’s April 29, 2022 letter seeking to compel certain discovery from third parties
(ECF No. 246 (“Pepsi’s Letter as to Third Parties”)); and (iv) RiseandShine’s April 21, 2022 letter
seeking to compel certain discovery from Pepsi (ECF Nos. 229, 230 (“RiseandShine’s Letter”)).
Having reviewed the parties’ submissions, and having heard the parties’ arguments during
the lengthy discovery conference held today, May 6, 2022, the Court orders as follows:
1. Pepsi’s Letters as to RiseandShine:
a. RFP Nos. 1, 3, 5 and 21–23: Pepsi’s request for an order compelling
RiseandShine “to produce documents responsive to these RFPs, or if it is
unable to locate responsive documents, to file written responses stating that
no documents exist and outlining steps taken to attempt to locate them” is

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DENIED WITHOUT PREJUDICE. As discussed at the discovery conference, Pepsi
may question RiseandShine’s Fed. R. Civ. P. 30(b)(6) witness Grant Gyesky
regarding the existence of, and RiseandShine’s efforts to collect, documents
responsive to these RFPs. If necessary, after Mr. Gyesky’s deposition, Pepsi
may renew its request for relief.
b. Withheld Third-Party Communications: Regarding Pepsi’s request for an order
compelling RiseandShine to produce third-party communications (i) on the use
of “Rise” and (ii) for which Pepsi claims RiseandShine waived privilege, the
Court reserves judgment and orders as follows:
i. RiseandShine shall promptly identify ten withheld third-party
communications concerning the use of “Rise” as to which it believes
Fed. R. Evid. 408 may apply (the “Rule 408 Exemplars”). As discussed
at the conference, the Rule 408 Exemplars shall include
communications with “Rise Up,” if any exist. The Court will conduct an
in camera review of the Rule 408 Exemplars to determine relevance
and the applicability of Rule 408.
ii. The parties shall promptly meet and confer to identify 20 withheld
third-party communications for which Pepsi claims RiseandShine
waived the asserted privilege, from the list of such communications
identified in Pepsi’s Apr. 14 Letter (see ECF No. 224 at 2 n.2) (the
“Waiver Exemplars”).

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iii. By May 20, 2022, RiseandShine shall (i) file a letter listing the Rule 408
Exemplars and the Waiver Exemplars (the “Supplemental Letter”), and
(ii) email copies of the Rule 408 Exemplars and the Waiver Exemplars
to the Court ([e-mail]) for in camera
review.
c. Text messages: Regarding Pepsi’s request for an order compelling
RiseandShine to correct alleged deficiencies in its production of text messages
(the “Text Messages”), RiseandShine shall include in its Supplemental Letter
the log of the Text Messages that it previously produced to Pepsi, and the
Court will reevaluate Pepsi’s request.

As discussed at the discovery

conference, however, Pepsi’s request for an order compelling RiseandShine to
produce the metadata for the Text Messages is DENIED, because Pepsi has
failed to establish that such discovery is “relevant to any party’s claim or
defense and proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1).
d. RiseandShine’s financial data and pricing survey or audit: Pepsi’s request for
an order compelling RiseandShine to produce (i) in response to Pepsi’s RFPs
Nos. 14 and 36, financial data showing the stated value of RiseandShine’s sales
through March 2022, and (ii) the pricing “survey” or “audit” referenced at the
depositions of RiseandShine witnesses, is GRANTED.

RiseandShine shall

promptly produce the financial data and pricing survey or audit.
e. RiseandShine’s Supplemental Letter shall not exceed three pages in length,
exclusive of exhibits.

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f. Within three business days of RiseandShine’s filing of the Supplemental
Letter, Pepsi shall file a responsive letter, not exceeding three pages in length,
exclusive of exhibits.
2. Pepsi’s Letter as to Third Parties: Regarding Pepsi’s request for an order compelling
certain Third Parties’ responses to non-party subpoenas, the Court orders as follows:
a. Pepsi’s requests as to Steven Salzinger, Alex Tanev, and Hudson Gaines-Ross
are DENIED for the reasons explained during the conference; and
b. Pepsi’s request as to Josyl Barchue is GRANTED only to the extent that, by
May 20, 2022, Mr. Barchue shall serve a declaration describing: (i) the
existence, nature, and numerosity of any files he possesses concerning the
Rise Brewing Marks (as defined in the subpoena (ECF No. 246-3)), and
(ii) identifying the steps he took to search those files for responsive nonprivileged documents.
3. RiseandShine’s Letter:
a. RiseandShine’s request for an order compelling Pepsi to produce: (i) financial
documents in response to RiseandShine’s RFP Nos. 19, 21, and 33, and
(ii) documentation showing causation of Pepsi’s claimed harms, is DENIED
WITHOUT PREJUDICE. As discussed at the discovery conference, RiseandShine
has thus far failed to demonstrate it served specific demands for Pepsi’s profitand-loss documentation or for documents and correspondence regarding
Pepsi’s decision to cancel the unaired Superbowl commercial, but may include

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in its Supplemental Letter any citations in support of these requests for the
Court’s consideration.
b. RiseandShine’s request for an order compelling Pepsi to produce documents
and information responsive to its requests regarding Starbucks Nitro is DENIED
WITHOUT PREJUDICE, pending the resolution of Pepsi’s objections to this
Court’s Order dated April 14, 2022 (ECF No. 221) and Starbucks’ motion to
intervene. (ECF Nos. 240; 255).
The parties are directed to order a transcript of today’s conference.
Dated:

New York, New York
May 6, 2022
SO ORDERED.

_________________________
SARAH L. CAVE
United States Magistrate Judge

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