United States District Court, S.D. Indiana, Indianapolis Division
In Re MORNING SONG BIRD FOOD LITIGATION Jeff Medley, Subpoeanant. Glenn Hegewald, Subpoeanant.
Jane Magnus-Stinson, Chief Judge United States District
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
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.
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).
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).
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).
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”).
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).
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
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.
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.]
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:
BY MS. JENSEN:
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
A Yes, There was some discussion about other
BY MS, JENSEN:
Q And what was that discussion?