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In re Morning Song Bird Food Litigation

United States District Court, S.D. California

January 23, 2015


For Laura Cyphert, Individually and on Behalf of All Others Similarly Situated, Milt Cyphert, Individually and on Behalf of All Others Similarly Situated, David Kirby, Plaintiffs: Brian E. Cochran, Jason A Forge, Jennifer N. Caringal, Michael Albert, Phong Le Tran, Rachel L Jensen, LEAD ATTORNEYS, Robbins Geller Rudman and Dowd LLP, San Diego, CA; Douglas P. Dowd, LEAD ATTORNEY, PRO HAC VICE, Alex R. Lumaghi, St. Louis, MO; John J. Driscoll, IV, LEAD ATTORNEY, Christopher J. Quinn, Gregory J. Pals, PRO HAC VICE, The Driscoll Firm, PC, St. Louis, MO.

For Scotts Miracle-Gro Company, The, Scotts Company LLC, The, Defendants: Allison E. Haedt, Edward P Swan, Jr., LEAD ATTORNEYS, Jones Day, Columbus, OH; Jeffrey J. Jones, Marjorie P. Duffy, LEAD ATTORNEYS, PRO HAC VICE, Jones Day, Columbus, OH.

For James Hagedorn, Intervenor: Michael A Attanasio, LEAD ATTORNEY, Cooley Godward Kronish, San Diego, CA.


Ruben B. Brooks, United States Magistrate Judge.

On November 17, 2014, Plaintiffs filed a Motion to Compel Production of Documents [ECF No. 107], requesting an order compelling Defendants to produce certain studies conducted by third parties regarding the toxicity of Morning Song Bird Food. ([Pls.'] Mot. Compel Attach. #1 Mem. P. & A. 2, ECF No. 107.) Defendants filed their Opposition to Plaintiffs' Motion [ECF No. 143], and Plaintiffs filed a Reply Memorandum in Support of Plaintiffs' Motion [ECF No. 147]. A hearing on Plaintiffs' motion was set for January 12, 2015. The Court determined that this matter was suitable for resolution without oral argument, and the motion was submitted on the parties' papers. S.D. Civ. L. R. 7.1(d)(1). For the following reasons, Plaintiffs' Motion to Compel Production is GRANTED.


This nationwide class action arises from the Plaintiffs' alleged purchases of wild bird food marketed by The Scotts Miracle-Gro Company and The Scotts Company LLC (" Scotts"). (Compl. 2, ECF No. 10.) Plaintiffs claim that Scotts's bird food products contained Storcide II and Actellic 5E, pesticides that are poisonous to birds and wildlife, and that the company marketed and sold toxic bird food to consumers throughout the United States. (Id.)

In January 2012, Defendants pleaded guilty to federal criminal charges, admitting misuse and misbranding of various pesticides. (Id. at 8.) They were sentenced to pay a $4 million penalty and make $500, 000 in charitable donations to five organizations whose missions are to protect bird habitat environments. (Id.)

Plaintiffs allege that Scotts continued to sell toxic bird food even after it received warnings about the application of the pesticides to its bird food products. (Id.)


A. Discovery Dispute

The discovery dispute involves reports generated by third parties regarding the toxicity of Scotts' products. In request for production number seventeen, Plaintiffs sought " [d]ocuments discussing toxicity of pesticides in Wild Bird Food Product or potential or actual effects or pesticides on birds or other wildlife." ([Pls.'] Mot. Compel Attach. #8 Defs.' Resp. Pls.' Third Request Produc. 15, ECF No. 107.) On July 11, 2014, in response to the request, Defendants raised general objections and also claimed the attorney-client communication privilege and the attorney work-product doctrine shields these documents. (Id. at 16.) Nonetheless, Defendants stated they would " conduct a reasonable search in the snapshots of eighteen primary custodians[] . . . and . . . also conduct a targeted search of files organized by department and/or specific custodians to produce any non-privileged documents identified after reasonable inquiry regarding the toxicity of Storcide II and Actellic 5E when applied to wild bird food." (Id.) On August 1, 2014, Scotts produced a privilege log, which did not identify the third-party reports at issue in this motion. ([Pls.'] Mot. Compel Attach. #2 Decl. Alex Lumaghi 2, [1] ECF No. 107.)

After the parties met and conferred about the documents listed in the privilege log, Defendants agreed to produce previously withheld pre-sentencing materials with redactions. (Id.) Plaintiffs claim that during their review of these documents, they noticed references to the reports prepared by Environ International Corporation (" Environ") and Exponent, Inc. (" Exponent") regarding the toxicity of pesticides used in Defendants' bird food.[2](Id.) Plaintiffs requested that the third-party reports be produced. Defendants responded that the reports were protected by the attorney work-product doctrine or the attorney-client communication privilege because they were " draft expert reports or communications prepared by Exponent or Environ at the request of counsel." (Id. at 3.) The parties were unable to resolve the dispute informally, and this motion to compel followed.

B. Timeliness of the Motion

Defendants oppose Plaintiffs' Motion to Compel as time barred, arguing that the current dispute arose in June 2014. ([Defs.'] Mem. P. & A. Opp'n Pls.' Mot. Compel 11, [3] ECF No. 143.) Defendants argue that Plaintiffs seek discovery in response to request for production number seventeen, to which Scotts served a response on July 11, 2014. (Id. at 12-13.) Thus, they contend that Plaintiffs were required to bring their motion on or before August 10, 2014. (Id. at 13.)

Plaintiffs reply that because Defendants failed to identify the Environ or Exponent reports on the privilege log produced in July of 2014, Plaintiffs were not aware of the documents and thus could not bring this Motion. ([Pls.'] Reply Mem. Supp. Pls.' Mot. Compel 2, ECF No. 147.) Plaintiffs point out that even after they filed the Motion to Compel, Defendants still have not " provided a privilege log that describes any of these documents, a failure that in itself waived any ...

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