Prescott v. Reckitt Benckiser LLC

Background

Plaintiffs and Reckitt Benckiser LLC (“RB”) asked the court to resolve three discovery disputes. The order addressed: (1) advertisements placed by plaintiffs’ counsel to solicit potential consumers and plaintiffs; (2) documents sought from TexTest concerning product testing on which plaintiffs relied; and (3) plaintiffs’ communications with Procter & Gamble (“P&G”) concerning a subpoena.

1. Advertisements

RB requested documents concerning communications by plaintiffs’ counsel, Cohen Milstein, with people or organizations soliciting consumers of the Woolite products at issue. RB argued that the advertisements could be relevant to whether the named plaintiffs were adequate class representatives and whether Cohen Milstein was adequate class counsel. RB pointed to testimony that some plaintiffs learned about the action through advertisements and suggested that the advertisements might show improper inducements or promises.

Plaintiffs argued that the advertisements were not relevant to class certification. The court agreed with plaintiffs on the record presented. Although solicitation could potentially bear on the adequacy of the plaintiffs or counsel, RB identified no facts suggesting that the advertisements likely contained improper inducements or promises. The court therefore denied RB’s request for an order compelling production of the advertisements.

2. TexTest subpoena

RB sought unspecified documents relating to testing on which plaintiffs relied. TexTest objected to the subpoena, and RB argued that the objections were late. Plaintiffs separately argued that communications between their counsel and TexTest were protected by attorney-client privilege and the attorney work product doctrine because plaintiffs had retained TexTest as an expert.

The court explained that, if TexTest was retained as a testifying expert, Federal Rule of Civil Procedure 26(b)(4) governed discovery from that expert. Certain communications must be disclosed, including communications about the expert’s compensation, facts or data supplied by the attorney and considered by the expert, and assumptions supplied by the attorney and relied on by the expert. Other communications generally receive work-product protection.

The court denied RB’s request because the parties presented the dispute at too high a level of generality for the court to determine whether the documents fell within the categories requiring disclosure. The court cautioned that if plaintiffs and TexTest failed to produce documents required by Rule 26(b)(4)(C) or the expert-disclosure rules, the presiding judge might exclude the expert evidence on which plaintiffs expected to rely. The court expressly did not decide whether TexTest had otherwise timely complied with the subpoena under Federal Rule of Civil Procedure 45, because TexTest did not appear to be a party to the dispute before the court.

3. P&G subpoena communications

RB requested all communications plaintiffs had with third parties concerning subpoenas issued in the case. RB argued that plaintiffs’ communications with P&G about plaintiffs’ subpoena were responsive. Plaintiffs objected to producing communications between their counsel and P&G’s counsel.

The court denied RB’s request for an order compelling production because RB’s discussion did not explain how the requested discovery was relevant to any issue in the case.

Disposition

The court denied each of RB’s three requests for an order compelling discovery. Judge Virginia K. Demarchi resolved the dispute without oral argument.