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In re Fresh and Process Potatoes Antitrust Litigation

United States District Court, D. Idaho

April 11, 2014



CANDY W. DALE, District Judge.


Direct Purchaser Plaintiffs ("Plaintiffs") move the Court under Fed.R.Civ.P. 37 and Dist. Idaho L. Rule 7.1 to compel certain Defendants[2] to produce documents identified on their privilege logs. The Court has been involved with the parties' ongoing discovery disputes since August 31, 2012, and has conducted a series of status conferences and motion hearings with the parties in multiple attempts to resolve issues as they arose. ( See Case Mgt. Order No. 4 MDL Dkt. 239).

Now, however, the parties require the Court's intervention in the form of Plaintiffs' latest motion, filed on December 11, 2013, per the Court's October 22, 2013 Order (as amended). (MDL Dkt. 486.) The Court instructed the parties to file one brief[3] of no more than 20 pages from each collectively represented group of parties to be filed in support of or in response to a party's motion to compel, and the parties did so. The Andersen Defendants submitted also a box of documents for in camera review, and the Court has had the opportunity to review them, along with the several thousand or so pages of privilege logs and other documents comprising the motion and the four responses thereto.

The Court does not believe additional briefing or a hearing would further aid it in understanding the issues in light of its involvement and familiarity gained throughout the parties' ongoing discovery disputes. Therefore, the Motion will be decided on the record without a hearing. Further, this will serve to avoid delay, given the amended fact discovery completion deadline of July 3, 2014. (MDL Dkt. 588.)


Plaintiffs' motion raises several substantive legal issues. Each issue is directed to an individual defendant, or a group of defendants. The motion is globally directed at Defendants' privilege logs, with Plaintiffs seeking production of documents withheld. Plaintiffs assert that the attorney-client privilege has been waived as to documents set forth in Appendix A to Plaintiffs' Motion. (MDL Dkt. 540-1.) Plaintiffs assert several arguments as to why certain documents are no longer subject to protection because of privilege, including waiver of the attorney-client privilege by stipulation; assertion of the affirmative defense of reliance upon advice of counsel; disclosure of documents to third parties; and reliance upon an erroneous interpretation of the association and common interest privilege. The Court will discuss the factual context applicable to each issue in more detail below.


The Federal Rules of Civil Procedure creates a "broad right of discovery" because "wide access to relevant facts serves the integrity and fairness of the judicial process by promoting the search for the truth." Epstein v. MCA, Inc., 54 F.3d 1422, 1424 (9th Cir. 1995) (quoting Shoen v. Shoen, 5 F.3d 1289, 1292 (9th Cir. 1993)). But the right of a party to obtain discovery is not unlimited. A party may obtain discovery regarding "any nonprivileged matter that is relevant to any party's claim or defense." Fed.R.Civ.P. 26(b)(1). "Relevant information need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Id.

Evidence is relevant if the evidence has any tendency to "make the existence of any fact that is of consequence to the determination of the action more probable or less probable that it would be without the evidence." Fed.R.Evid. 401. Although parties are not given unfettered license to obtain all information, no matter how tangentially relevant it might be, Rule 26(b)(1) is construed broadly to "encompass any matter that bears on, or that reasonably could lead to other matter that bears on, any issue that is or may be in the case." Oppenheimer Fund, Ind. v. Sanders, 437 U.S. 340, 350 (1978).

If a responding party asserts an evidentiary privilege, that party has the burden to demonstrate the privilege applies to the information in question. Tornay v. U.S. 840 F.2d 1424, 1426 (9th Cir. 1988). "When a party withholds information otherwise discoverable by claiming that the information is privileged... the party must... describe the nature of the documents, communications, or tangible things not produced or disclosed-and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim." Fed.R.Civ.P. 26(b)(5).

The attorney-client privilege is designed to protect the forced disclosure in a judicial proceeding of certain confidential communications between a client and a lawyer. U.S. v. Ruehle, 583 F.3d 600, 606 n.6 (9th Cir. 2009). The privilege protects confidential disclosures made by a client to an attorney to obtain legal advice, and the attorney's advice in response to such disclosures. Id. (quoting United States v. Bauer, 132 F.3d 504, 507 (9th Cir.1997)). But, the fact a person is a lawyer does not make all communications with that person privileged. Id. (quoting United States v. Martin, 278 F.3d 988, 999 (9th Cir.2002)). Because assertion of the privilege "impedes full and free discovery of the truth, the attorney-client privilege is strictly construed." Id. Accordingly, "it protects only those disclosures necessary to obtain informed legal advice which might not have been made absent the privilege." Fisher v. U.S. 425 U.S. 391, 403 (1976).

To establish a communication is protected by the attorney-client privilege, a party must prove each element of an eight-part test:

(1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by ...

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