United States District Court, N.D. California, San Francisco Division
DISCOVERY ORDER RE: ECF NO. 108
BEELER UNITED STATES MAGISTRATE JUDGE.
putative class action, the plaintiffs challenge the defendant
Clorox Company's allegedly mislabeling certain Clorox
“Green Works” products as “natural”
or “naturally derived” when they actually contain
ingredients that are synthetic and non-natural. The plaintiffs
bring claims for violations of California and New York
false-advertising, consumer-protection, and
unfair-competition laws, and claims for breach of express and
implied warranties, unjust enrichment, negligent
misrepresentation, and fraud.
court's earlier orders describe the parties'
dispute. Boiled down, the parties dispute whether
Clorox can assert attorney-client privilege over certain
spreadsheets (something that Clorox calls “claims
matrixes”) that detail the claims that Clorox's
in-house counsel approves for use with that particular
product. The court reviewed five spreadsheets that
Clorox submitted for in camera review and finds that
Clorox has established that the redacted content of the
spreadsheets has privileged material. But it has not
established other elements of privilege (such as author and
maintaining confidentiality). This order specifies the areas
where Clorox must support its contentions and gives Clorox 14
days to submit a supplemental declaration.
spreadsheets at issue are “claims matrix”
spreadsheets. For each Green Works product, there is a
“claims matrix” spreadsheet that details what
claims are approved (or not approved) by Clorox's
in-house legal department for use with that particular
product. Clorox's in-house advertising counsel
submitted a declaration that she has written comments on the
spreadsheets and/or approved or rejected
claims. The “claims matrix”
spreadsheets are “living and evolving documents that
resided in a shared drive that a select group of Clorox
employees would review to obtain legal advice provided by
Clorox's in-house lawyers.” Clorox's in-house
advertising counsel “viewed the claims matrix
spreadsheet as a vehicle to communicate to certain personnel
within Clorox what claims have been legally approved and what
have not been approved.” Clorox personnel typically
reviewed the spreadsheets on the shared drive but sometimes
saved them on their computers or emailed the claims matrices
to other Clorox colleagues.In house counsel also provided
the following information about the redactions.
“5. The claims matrix spreadsheets incorporate or refer
to analysis set forth in ‘claims support
documents,' which Clorox Research & Development
employees write at the direction of in-house attorneys for
the purpose of communicating substantiation data and other
support information to enable Clorox in-house counsel to
perform a legal analysis, provide legal advice, and assess
litigation risk. Accordingly, Clorox considers these
memoranda to be attorney-client privileged.
“6. I understand that Clorox has withheld two such
claims documents pertaining to the challenged Green Works
products as privileged and constituting attorney work
product. I have reviewed both documents. These memoranda were
prepared at the request of Clorox's in-house counsel, and
they reflect proposed claims substantiation data and other
support information from Clorox Research & Development
employees who worked on the Green Works products to in-house
Clorox legal counsel so that such counsel could assess
whether such claims were adequately substantiated in
accordance with laws and assess litigation risk associated
with such claims.
“7. I also understand that the Plaintiffs have raised
questions about the ‘Claim Support Tab' referenced
in some of the claims matrix spreadsheets. ‘Claim
Support Tab' is the location in which such privileged
claims support documents are housed for ongoing reference by
Clorox in-house counsel as the need to arises to revisit and
re-analyze legal conclusions previously surmised. In this
case, the claims support documents would be the two claims
memoranda referenced in paragraph 6.
former Director of Marketing was deposed and provided the
Q. Who creates a claims matrix?
A. I am unsure who is the originator of those documents.
Q. Do you know what position would normally be in charge of
creating a claims matrix?
A. I know that R & D has a large responsibility for it,
but I am unsure if they are the ones that always originate
Q. So you don't know who worked on the claims matrixes?
A. I don't know who - who created the original claims
matrix for Green Works.
Q. But in general, it would have been people working in - in
marketing and R & D?
A. To create a claims matrix, there would have to be some
conversations between R & D and marketing at some point.
Q. Okay. And those would be the departments or divisions
primarily responsible for creating those documents?
A. They - we do a lot of very collaborative work at Clorox so
I do - it wouldn't - usually not just be those two
groups, like there could be other groups that would be
involved in . . .
Q. Can you think of other groups that would have been
involved in creating a claims matrix for the Green Works
A. Our regulatory department.
A. Our legal department.
Q. And what role would the legal department or regulatory
department have in creating the claims matrixes?
A. They would discuss with - with the team about what they
thought were the - the characteristics to think about when
putting something on marketing materials or packaging
materials to make sure that it is something that we could
Q. So would that be after the creation of the claims matrix,
Legal or Regulatory would review it?
A. I am not sure at what point in the process that they
Q. And so when you were asked to provide input for a claims
matrix, was this someone senior to you who would have asked
you to provide that input?
A. I think it's just nor - a normal part of the - the
product development process.
A. So . . ...