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In re Morning Song Bird Food Litigation

United States District Court, S.D. Indiana, Indianapolis Division

April 25, 2018

In Re MORNING SONG BIRD FOOD LITIGATION Jeff Medley, Subpoeanant. Glenn Hegewald, Subpoeanant.


          Hon. Jane Magnus-Stinson, Chief Judge United States District Court.

         In February 2012, Scotts Miracle-Gro Company (“Scotts”) pleaded guilty to one count of pesticide misuse in the Southern District of Ohio. See In re Morning Song Bird Food Litig., 831 F.3d 765, 769 (6th Cir. 2016) (summarizing criminal proceedings). As part of its guilty plea, Scotts admitted that it had used unapproved pesticides in producing its bird feed products, including a pesticide labeled “toxic to birds and other wildlife.” Information at 4, United States v. The Scotts Miracle-Gro Co., 2:12-cr-00024-JLG (S.D. Ohio Jan. 25, 2012). A class action lawsuit followed in June 2012 in the Southern District of California, alleging violations of federal racketeering laws and a variety of state consumer protection statutes for selling the tainted bird feed. See In re Morning Song, 320 F.R.D. 540, 543-44 (S.D. Cal. 2017) (summarizing claims and certifying class).

         Discovery disputes stemming from the class action have proliferated in district courts throughout the country. See, e.g., In re Morning Song, 2017 WL 7512980 (S.D. Fla. 2017); In re Morning Song, 2017 WL 7512980 (S.D. Ohio 2017); Order, In re Morning Song, No. 2:17-mc-230-PMD (D.S.C. July 26, 2017). Two such disputes now pend before this Court. In two miscellaneous matters, Plaintiffs from the Southern District of California matter move to compel two deponents residing in this District to answer certain questions about their deposition preparation. Alternatively, Plaintiffs request that the Court transfer the two motions to the Southern District of California where the underlying litigation remains pending. The two deponents, Jeff Medley in cause number 1:17-mc-00078-JMS-TAB and Glenn Hegewald in cause number 1:18-mc-00016-JMS-TAB, were at the center of the pesticide issue and were two of the three employees terminated by Scotts for their actions. Plaintiffs' motions are fully briefed, as is Plaintiffs' objection to the Magistrate Judge's Report and Recommendation (“R&R”) in Mr. Medley's matter. For the reasons set forth below, the Court SUSTAINS Plaintiffs' objection in Mr. Medley's matter and GRANTS IN PART Plaintiffs' motions to the extent that it TRANSFERS them to the Southern District of California for further proceedings.


         Legal Standards

         Federal Rule of Civil Procedure 45(c) limits the power of a subpoena to command a nonparty to attend a deposition to a location “within 100 miles of where the person resides, is employed, or regularly transacts business in person.” Fed.R.Civ.P. 45(c)(1)(A). Rule 37(a), in turn, requires that motions to compel discovery from such a nonparty be filed not in the court where the underlying action is taken, but “in the court where the discovery is or will be taken.” Fed.R.Civ.P. 37(a)(2). Plaintiffs seek to transfer these matters from this district to the Southern District of California, where the underlying action pends, pursuant to Rule 45(f). Where, as here, the subpoenants do not consent to such a transfer, the Court may nonetheless transfer the motions upon finding “exceptional circumstances.” Fed.R.Civ.P. 45(f).

         While the Court ultimately concludes that transfer is appropriate for reasons elaborated upon below, some orientation to the scope of discovery under the Federal Rules of Civil Procedure is helpful to understanding the posture of the pending motions. Rule 37 permits a party to move the Court to compel production of documents if the party's request comports with the scope of discovery. Fed.R.Civ.P. 37(a)(3)(B)(iv). The scope of discovery is broad, with a “strong public policy in favor of disclosure of relevant materials.” Patterson v. Avery Dennison Corp., 281 F.3d 676, 681 (7th Cir. 2002). But it is limited from the outset to relevant, “nonprivileged matter” and to requests which are “proportional to the needs of the case.” Fed.R.Civ.P. 26(b)(1).

         Evidentiary privileges, such as the work-product and attorney-client privileges claimed in response to these motions, are narrowly construed because they withhold relevant information from the trier of fact. See, e.g., Mem'l Hosp. for McHenry Cty. v. Shadur, 664 F.2d 1058, 1061 (7th Cir. 1981). The attorney-client privilege, designed to encourage open and honest communication between attorneys and clients, protects “communications made in confidence by a client and client's employees to an attorney, acting as an attorney, for the purpose of obtaining legal advice.” Sandra T.E. v. S. Berwyn Sch. Dist. 100, 600 F.3d 612, 618 (7th Cir. 2010). Work-product privilege is “intended to prevent a litigant from taking a free ride on the research and thinking of his [or her] opponent's lawyer and to avoid the resulting deterrent to a lawyer's committing his [or her] thoughts to paper.” United States v. Frederick, 182 F.3d 496, 500 (7th Cir. 1999). Although outside the ambit of the codified doctrine in Rule 26(b)(3)(A), the common law work product privilege extends to protect intangible work product, including the “thoughts and recollections of counsel.” Charles Alan Wright et al., 8 Federal Practice & Procedure § 2024 (3d ed. 2010) (collecting authorities).

         The proportionality requirement of Rule 26(b) requires courts to account for a variety of considerations, including “the totality of the circumstances, weighing the value of the material sought against the burden of providing it, and taking into account society's interest in furthering the truthseeking function in the particular case before the court.” Patterson, 281 F.3d at 681. The burden rests on the party resisting discovery to establish the undue burden of the discovery sought and any claims of privilege as to each portion of withheld testimony. United States v. Evans, 113 F.3d 1457, 1461 (7th Cir. 1997) (“The party seeking to invoke the privilege bears the burden of proving all of its essential elements.”); United States ex rel. Robinson v. Ind. Univ. Health Inc., 2015 WL 3961221, at *5 (S.D. Ind. 2015) (“A party resisting discovery on the basis of undue burden must show with specificity that the discovery requests are issue are objectionable.”) (collecting cases). While nonparty status is a “significant factor” in the proportionality analysis, nonparties still must demonstrate “significant expense” before receiving protection from discovery. Keaton v. Hannum, 2013 WL 4481889, at *1 (S.D. Ind. 2013). And protection against undue burden may take many forms short of a prohibition on additional discovery. E.g., Fed.R.Civ.P. 26(c)(1) (detailing several options at court's disposal “to protect a party or person from . . . undue burden or expense”).

         “District courts have broad discretion in discovery matters, ” Packman v. Chi. Tribune Co., 267 F.3d 628, 646 (7th Cir. 2001), and this discretion extends to decisions to transfer a discovery motion under Rule 45(f), see, e.g., Crawford-El v. Britton, 523 U.S. 574, 599 (1998) (noting that the Federal Rules of Civil Procedure vest district courts with the discretion to “manage the discovery process to facilitate prompt and efficient resolution of the lawsuit”); cf., e.g., Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988) (emphasizing district court's discretion to consider totality of the circumstances for transfers of civil cases under § 1404(a)); Research Automation, Inc. v. Schrader-Bridgeport Int'l, Inc., 626 F.3d 973, 977-78 (7th Cir. 2010) (same). The Court may consider all reasonable evidence in considering a discovery motion without regard to the “formalities” of evidentiary rules. Nat'l Util. Serv., Inc. v. Nw. Steel & Wire Co., 426 F.2d 222, 225 (7th Cir. 1970).



         These two discovery disputes stem from the class action captioned In re Morning Song Bird Food Litigation, No. 3:12-cv-1592-JAH-AGS (S.D. Cal. filed June 27, 2012), presently pending in the Southern District of California. As briefly explained above, in 2012, Scotts pleaded guilty to using unapproved, harmful pesticides on its bird feed. See In re Morning Song, 831 F.3d at 769 (summarizing criminal proceedings). The class action is comprised of consumers who purchased the tainted bird feed and seeks damages under RICO and various state consumer protection statutes.

         Discovery has taken the parties all over the country, including to the Southern District of Indiana. In the matters before the Court, Plaintiffs have taken the depositions of two former Scotts employees who were terminated for their roles in the pesticide misuse. Mr. Medley was Regional Operations Director of Wild Bird Food for Scotts until he was terminated in 2008. [Medley Filing No. 3-1 at 106.] Mr. Hegewald was a plant engineer for Scotts. [Hegewald Filing No. 5-1 at 126.] Mr. Medley and Mr. Hegewald were two of three individuals terminated by Scotts as a result of the pesticide misuse. [Hegewald Filing No. 5-1 at 125-26.] At the sentencing hearing in Scotts' criminal matter, Scotts emphasized that the pesticide misuse “did not reflect some broader failure of corporate culture or corporate compliance.” Sentencing Hearing Transcript at 9, Scotts Miracle-Gro Co., 2:12-cr-00024-JLG (S.D. Ohio Sept. 17, 2012). The sentencing judge found it significant that “the three individuals who were most responsible for the bird food violation, ” two of whom are the deponents in these matters, “were terminated by Scotts.” Id. at 20.

         The current disputes share nearly identical underpinnings. Sometime prior to each deposition, attorney Doug Mansfield, who at one point represented Scotts, [Hegewald Filing No. 5-1 at 131], contacted each deponent to offer his services, [Hegewald Filing No. 5-1 at 108; Medley Filing No. 3-1 at 92]. Neither deponent paid for Mr. Mansfield's representation. [Hegewald Filing No. 5-1 at 108; Medley Filing No. 3-1 at 92.] Mr. Hegewald confirmed that Scotts paid for Mr. Mansfield to represent him at his deposition. [Hegewald Filing No. 5-1 at 103.] Mr. Mansfield was also paid by Scotts to represent the third individual fired for his actions in the pesticide matter, Joseph Pellegrini. [Hegewald Filing No. 5-1 at 131.]

         Prior to their depositions, Mr. Medley and Mr. Hegewald met not only with their attorney, Mr. Mansfield, but also with counsel for Scotts. [Medley Filing No. 3-1 at 100; Hegewald Filing No. 5-1 at 108.] During the depositions, Plaintiffs' counsel sought to explore the nature and impact of the pretrial deposition meetings between the deponents and Scotts' counsel. Mr. Mansfield and Scotts' counsel objected once the questioning went beyond the mere fact of the discussion. At Mr. Medley's deposition, Scotts' counsel (“Mr. Jones” in the transcript) instructed Mr. Medley not to answer several questions regarding his deposition preparation:

Q During your meeting in preparation for your deposition, did any of the Scotts attorneys summarize for you the testimony of any witness in this case?
MR, JONES: And we're going to let him answer without waiving our attorney-client privilege or work product privilege,
A Yes, There was some discussion about other testimony, yes.
Q And what was that discussion? ...

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