Loza v. The Hershey Company

Background

The plaintiffs sought an order requiring The Hershey Company to provide discovery in a case concerning Lily chocolate products labeled “Stevia Sweetened,” or, for one product, “Made with Stevia.” The complaint alleges that consumers understand those statements to mean that the products are entirely or mainly sweetened with stevia, while the products are actually mainly sweetened with erythritol. The three named plaintiffs alleged that they purchased two listed products but did not personally purchase all 64 products in Exhibit C to the complaint.

The parties presented four discovery disputes: discovery about the unpurchased products, marketing materials, communications with customers and retailers, and the timing of the plaintiffs’ depositions.

Unpurchased products

The court granted the plaintiffs’ motion to compel discovery about all 64 products in Exhibit C. It explained that plaintiffs in a proposed class action may have standing to assert claims involving products they did not purchase when the products and alleged misrepresentations are substantially similar. Here, the plaintiffs alleged that all 64 products involved substantially similar claims, and the court found no factual dispute for purposes of this discovery issue that the products were labeled essentially the same way and were mainly sweetened by erythritol.

The Hershey Company argued that the products were not identical because they differed in chocolate type, cocoa amounts, product descriptions, and uses. The court said those differences concerned class certification—the later stage at which the court decides whether the proposed class-action requirements are met—not whether the plaintiffs could obtain discovery. The court did not require the plaintiffs to first show that the class-action requirements were likely to be satisfied before obtaining discovery about similar products.

Marketing materials

The court granted the plaintiffs’ motion to compel responses to Requests for Production 10–12 and 31. It found that the case concerned not only product labels but also product marketing. The requested marketing materials were relevant to showing how prominent the stevia claims were in the products’ overall marketing.

The Hershey Company also argued that the requests were too burdensome. The court directed the parties to address that concern by identifying a reasonable number of document custodians and non-custodial sources to search. If they could not agree, they were ordered to file another joint discovery letter brief.

Third-party communications

The court granted the plaintiffs’ motion to compel responses to Requests for Production 29 and 30. Those requests sought communications from customers, including purchasers for consumption, distribution, or resale, concerning the sweetening claims on the product labels and related inquiries. The court found the requests relevant and disagreed that communications with retailers were irrelevant.

The court again treated burden as the main issue and ordered the parties to meet and confer about appropriate custodians and non-custodial sources. If they could not reach agreement, they were to file another joint discovery letter brief.

Plaintiffs’ depositions

The court granted The Hershey Company’s motion to compel the plaintiffs’ depositions. The plaintiffs had argued that they should not be deposed until after Hershey produced documents. The court found that position unreasonable because the documents at issue were documents the plaintiffs had never seen and therefore could not have caused their alleged injuries or influenced their decisions to become class representatives. The court ordered the plaintiffs to make themselves available for deposition.

Disposition

Judge Thomas S. Hixson granted the plaintiffs’ motions to compel regarding the unpurchased products, marketing materials, and third-party communications. He also granted The Hershey Company’s motion to compel the plaintiffs’ depositions.