Prescott v. Reckitt Benckiser LLC

Background

The plaintiffs and Reckitt Benckiser LLC (RB) asked the court to resolve a discovery dispute concerning RB’s communications with the National Advertising Division (NAD) of the Better Business Bureau. The communications concerned the NAD’s investigation of Procter & Gamble’s challenge to RB’s “color renewal” claims for Woolite laundry detergent.

The plaintiffs sought written communications between RB and the NAD and wanted RB employee Heidi Fuentes to answer deposition questions about her written and oral communications with the NAD. The dispute was limited to communications exchanged outside the formal NAD process in connection with the investigation. Steven Prescott’s Request for Production No. 21 sought responsive materials. The hearing indicated that RB had not investigated whether responsive written communications existed, while Fuentes had apparently acknowledged having responsive oral communications with the NAD in New York.

The parties’ positions

The plaintiffs argued that the communications were relevant because they might contain admissions about facts important to the case, including RB’s testing methods and the basis for its scientific claims.

RB argued that the plaintiffs already had “claim substantiation” documents and advocacy papers from participants in the NAD proceeding, so they did not also need RB’s communications with the NAD. RB also argued that producing the communications could violate the NAD’s confidentiality rules and harm the usefulness of the NAD’s dispute-resolution process.

Court’s analysis

Under Federal Rule of Civil Procedure 26(b)(1), discovery may cover information relevant to a claim or defense and proportional to the needs of the case. A party seeking a protective order to restrict discovery must show good cause, including specific prejudice or harm that would result without the order.

The court found that the communications were likely to contain information relevant to the claims and defenses. It rejected RB’s argument that disclosure in discovery would prevent RB from participating in future NAD proceedings, finding no support in the record for that speculation. The court also stated that parties cannot use private agreements and threatened disclosure liability to prevent a court from ordering discovery.

The court accepted, for purposes of this dispute, RB’s representation that the communications were confidential and that public disclosure could harm RB. It concluded that the confidentiality concerns could be addressed through the protective order already in the case, which would prevent the individual plaintiffs, the public, and RB’s competitors from accessing the communications.

The court expressly did not decide RB’s privilege claims because the parties had not presented a privilege dispute for decision and had not provided the privilege log to the court.

Order

The court ordered RB to investigate whether written communications responsive to Request for Production No. 21 existed and to notify the plaintiffs in writing by August 10, 2021, whether such communications existed. RB was ordered to produce any responsive communications by August 13, 2021.

The court also ordered RB to produce Fuentes for a further deposition concerning communications about which she had been instructed not to answer during her earlier deposition. The further deposition was limited in duration unless the parties agreed otherwise. The opinion’s extracted text does not clearly display the stated time limit.