Jacobson Warehouse Company, Inc. v. Prestige Brands, Inc.

Background

This is a contract dispute between Jacobson Warehouse Company, Inc.; Jacobson Logistics Company L.C.; and XPO Logistics Supply Chain, Inc., collectively referred to as XPO, and Prestige Brands, Inc. The dispute arises from a 2012 warehousing and transportation-management agreement. The parties asserted claims and counterclaims, including claims for breach of contract.

The order decided two discovery motions. First, XPO moved to compel documents and communications concerning Stroz Friedberg LLC, a digital-forensics firm Prestige’s counsel retained after an apparent gap in Prestige’s document production. Prestige initially described Stroz as a consulting, non-testifying expert, but later designated a Stroz employee to testify for Prestige at a deposition under Federal Rule of Civil Procedure 30(b)(6) about the data loss and Stroz’s investigation. Prestige produced the Stroz report and more than 2,600 pages of materials considered or relied on by Stroz, but disputes remained over additional communications.

Second, XPO sought a protective order concerning 1,000 requests for admission served by Prestige. The requests concerned 162 shipments, including what XPO did in packaging and delivering products, what customers reportedly received or returned, the accuracy of XPO-generated shipment reports, and whether XPO verified shipment contents.

Motion to Compel Stroz Materials

The court treated Stroz as a testifying expert for purposes of the disputed discovery because Prestige waived its broader argument that the materials were protected as the work of a non-testifying expert. A testifying expert generally must disclose the facts and data considered in forming the expert’s opinions. Communications between the expert and the retaining attorney must also be disclosed when they concern compensation, facts or data provided by the attorney and considered by the expert, or assumptions provided by the attorney and relied on by the expert.

The court held that Prestige could not categorically withhold all communications between Stroz and Prestige employees by asserting attorney-client privilege or work-product protection. Communications containing facts, data, or assumptions that Stroz considered in forming the opinions and conclusions involved in its testimony had to be produced. If Prestige believed particular communications deserved protection, it had to identify them and explain the basis for withholding them in a properly formatted privilege log.

The court recognized that Stroz might have served in two capacities at different times—as both a consulting expert and a testifying expert. Communications concerning only Stroz’s consulting work could potentially be protected. Prestige would bear the burden of showing that Stroz did not consider those materials in forming its testimonial opinions.

The court therefore granted XPO’s motion to compel. Prestige was ordered to provide a log of communications between Prestige employees and Stroz employees that it sought to withhold on specific privilege grounds by June 13, 2022. The parties were required to meet and confer about issues raised by the log by June 22, 2022.

Protective Order Concerning Requests for Admission

A request for admission is a formal demand that a party admit or deny a fact, the application of law to fact, an opinion about either, or the genuineness of a document. The court rejected XPO’s general objections that the requests were improper merely because they concerned disputed issues, involved matters on which Prestige bore the burden of proof, or could affect the case. Those objections did not excuse XPO from responding.

The court did, however, sustain XPO’s undue-burden objection for certain requests. It granted protection for requests requiring XPO to interpret voluminous, marked-up documents to determine what customers reported receiving or why customers returned products. The court found that XPO represented it lacked direct knowledge of those matters and that answering would require it to perform its own interpretation of the documents. The court found those requests improper and unduly burdensome.

The court denied protection for requests asking XPO to admit that it was responsible for picking, packing, and shipping particular orders. XPO had described its services in its complaint using that same language, so it had to respond. If XPO could not truthfully admit or deny a request, it had to explain why; if it lacked enough information, it had to state that it made a reasonable inquiry and that the available information was insufficient.

The court also denied protection for requests asking XPO to address the accuracy of its own Logiview shipment reports. XPO had to respond to requests asking whether those reports accurately reflected shipment contents and whether XPO verified their accuracy when creating them. Finally, XPO had to respond to requests asking whether it verified the contents of particular shipments before shipping them, following the response requirements in Rule 36.

Disposition

The court granted XPO’s motion to compel. It granted in part and denied in part XPO’s motion for a protective order. The parties were directed to meet and confer about a deadline for XPO’s responses to the requests for admission. The order resolved discovery issues and did not decide the merits of the parties’ contract claims.