Patagonia, Inc. et al v. Anheuser Busch, LLC Case No. CV 19-02702 VAP (JEMx) United States District Court, C.D. California Filed September 29, 2020 Counsel Alexandra Nicole Martinez, Ryan T. Bricker, Beatrice O'Neil Strnad, Gia Louise Cincone, Hannah T. Yang, Gregory S. Gilchrist, Kilpatrick Townsend and Stockton LLP, San Francisco, CA, Nichole D. Chollet, Pro Hac Vice, Kilpatrick Townsend and Stockton LLP, Atlanta, GA, for Patagonia, Inc. et al. Adam S. Paris, Michael H. Steinberg, Sullivan and Cromwell LLP, Los Angeles, CA, Amanda A. Main, Angela L. Dunning, Cooley LLP, Palo Alto, CA, Dina Roumiantseva, Cooley LLP, San Francisco, CA, Marc De Leeuw, Pro Hac Vice, Sullivan and Cromwell LLP, New York, NY, Marcus D. Peterson, Bobby A. Ghajar, Cooley LLP, Santa Monica, CA, Michael P. Devlin, Pro Hac Vice, Sullivan and Cromwell LLP, New York, NY, for Anheuser Busch, LLC. McDermott, John E., United States Magistrate Judge Proceedings: (IN CHAMBERS) ORDER RE JOINT STATUS UPDATE RE ORDER [386] RE DEFENDANT'S MOTION TO COMPEL PRODUCTION OF DOCUMENTS AND OTHER ISSUES (Dkt. 371, 372, 379, 382, 386, 388 and 392) *1 Defendant Anheuser-Busch, LLC (“AB”) filed a Motion to Compel Production of Documents and Other Issues (“Motion”) on September 8, 2020. (Dkt. 371, 372.) AB also filed a Supplemental Memorandum on September 15, 2020. (Dkt. 379.) Plaintiffs Patagonia, Inc. and Patagonia Provisions, Inc. did not file a supplemental memorandum but did file Objections to AB's Supplemental Memorandum on September 17, 2020. (Dkt. 382.) The Court regarded Plaintiffs' Objections as an unauthorized Sur-Reply or late Supplemental Memorandum and permitted AB to file a further response. (Dkt. 386.) AB did so on September 24, 2020. (Dkt. 388.) The Court makes the following rulings: 1. Keywords, RFPD Nos. 54 and 56 to Patagonia Provisions, Inc. and 110, 112 and 138 to Patagonia, Inc. Plaintiffs agreed to produce responsive documents but AB says Plaintiffs have not done so, in particular three named reports: Ad Performance, Automatic Placements and Campaign Negative Keywords Performance. AB issued supplemental requests for these named reports. Plaintiffs say these reports were not due until September 21 but still have not produced them and now offer boilerplate objections to these reports. (Peterson Decl., Dkt. 388-1.) There are no valid grounds for not producing the named reports and other requested documents. The Court GRANTS AB's Proposed Order ¶ 1 (Dkt. 372-6), including production within seven days. 2. Waiver of Privilege. AB seeks an order compelling Plaintiffs to produce unredacted versions of ten documents. (Proposed Order, Dkt. 372-6, ¶ 2.) The Court DENIES the relief sought by AB. In March and April 2020, Plaintiffs produced several redacted documents that were later clawed back. On April 13, 2020, AB challenged the original narrower redactions for some documents. (Peterson Decl., Dkt. 371-2, ¶ 10.) Plaintiffs reviewed those documents and on May 1 claimed the redactions were appropriate. (Id.) At a May 15, 2020 deposition, however, Plaintiffs clawed back four documents. (Id., ¶ 11.) In July, Plaintiffs completed a re-review of documents and fixed any inconsistencies in information redacted. (Cincone Decl., Dkt. 372-3, ¶ 8.) AB argues that Plaintiffs' review and re-review waived any privilege because they did not take reasonable care to protect the privileged information, either before producing it, or when reviewing the redactions. Federal Rule Evidence 502(b) provides that a disclosure does not operate as a waiver if the disclosure is inadvertent, the holder of the privilege took reasonable steps to prevent disclosure and the holder took reasonable steps to rectify the error. The party claiming privilege has the burden of establishing the elements of FRE 502(b). Conceptus, Inc. v. Hologic, Inc., 2010 WL 3911943*1 (N.D. Cal.). Plaintiffs have satisfied their burden under FRE 502(b). This is a major case with massive document discovery and production, posing a major challenge to review of documents for privilege. Plaintiffs state that since mid-2019 they have reviewed 60,000 documents and produced 22,000 documents totaling more than 106,000 pages. (Cincone Decl., Dkt. 372-3, ¶ 8.) More than 700 documents required redactions and more withheld entirely. (Id.) Thousands of hours of time were devoted to reviewing the documents for privilege and redaction or withholding altogether. (Id.) Plaintiffs' attorney Russell Beets spent 57 hours in July 2020 re-reviewing 1,300 redacted documents to determine whether there were any inconsistent redactions across multiple versions of the documents. (Dkt. 372-5, ¶¶ 2-5.) Given the enormity of the discovery production, there are but 10 documents in issue. See Datel Holdings Ltd. v. Microsoft Corp., 2011 WL 866993*4 (N.D. Cal.) (“Inadvertent production of a proportion of documents in a large production under a short timetable due to mistake should be and usually is excused.) The Court finds that lesser redacted documents were produced inadvertently, Plaintiffs took reasonable steps to ensure there were no inconsistent redactions and took reasonable steps to rectify any errors by clawing back documents requiring greater redaction. *2 3. Stanford Case Study. Plaintiffs have produced all three case studies and searched for but did not find any other documents or communications regarding those studies. The Court discerns no basis for further relief and DENIES AB's Motion for the relief requested in Proposed Order ¶ 3 (Dkt. 372-6). 4. Financial Information. Request Nos. 29, 30, 31 and 33. Plaintiffs have agreed to supplement their production but have not done so yet or given a date by which they will do so. Therefore, the Court GRANTS AB's Motion on this issue and its Proposed Protective Order ¶ 4 (Dkt 373-6), including production within seven days. 5. Timeliness of Written Discovery. The parties agree that this issue is moot. (Dkt. 392.)