White v. The Kroger Co.

Background

Phillip White alleged that he bought a sunscreen product from The Kroger Co. labeled “reef friendly,” but that the label was false and deceptive because of ingredients in the product. He brought the case individually and on behalf of proposed national and California classes. The case was in discovery before any class-certification decision.

Kroger subpoenaed two nonparties, Daniel O’Brien and his father, Christopher O’Brien, for documents and deposition testimony. The subpoenas sought information about communications involving White, O’Brien, Lauren Anderson and other Clarkson Law Firm lawyers or staff, this and other lawsuits, possible recruitment of plaintiffs, and any assurances, promises, or payments connected to litigation. Daniel O’Brien’s subpoena also sought the full list of invitees and attendees at his wedding to Lauren Anderson, a Clarkson Law Firm attorney.

White and the O’Briens, who were represented by attorneys from the same firm representing White, requested permission to move to quash the subpoenas, obtain a protective order, and seek sanctions. They characterized the subpoenas as harassment and disputed Kroger’s assertions about their relationships and involvement in the litigation. Kroger argued that White’s deposition testimony raised questions about his honesty, his history as a class representative, how he became involved in lawsuits, and whether he had close personal or financial relationships with the O’Briens and his lawyers.

Conflict of Interest

The court concluded that White’s counsel had conflicting interests because the proposed class had an interest in receiving candid testimony from the O’Briens about White and his lawyers, while White and his counsel had an interest in showing that White was a suitable class representative and that counsel were suitable class counsel. The court stated that allowing the same lawyers to represent White and the proposed class while also representing the O’Briens in the subpoena proceedings could create divided loyalties and interfere with the court’s required examination of whether the class would be adequately represented.

Applying California law governing attorney disqualification, the court found that disqualification was unavoidable in these circumstances. It ordered that all attorneys employed by or associated with the Clarkson Law Firm, and all attorneys employed by or associated with White’s other counsel of record, were disqualified from representing the O’Briens in connection with Kroger’s third-party subpoenas. The O’Briens remained free to select other eligible, non-conflicted counsel.

Discovery Rulings

The court reviewed the subpoenas and found them appropriate for developing information relevant to the adequacy of White and his counsel as proposed class representatives and class counsel. It ordered Kroger to narrow the request for Daniel O’Brien’s wedding invitee and attendee list to people whose identities might help evaluate that issue, such as White, his counsel, and the counsel’s employees, affiliates, or agents. The court found that unrelated wedding guests would not provide useful information for that inquiry.

Subject to that modification, the court sustained Kroger’s subpoenas and overruled White’s objections. It denied the requests for permission to file motions to quash, for a protective order, and for sanctions against Kroger and its counsel. The order was signed by Magistrate Judge Robert M. Illman.