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Gregorio v. The Clorox Co.

United States District Court, N.D. California, San Francisco Division

June 28, 2019

JOSEPH GREGORIO, et al., Plaintiffs,
v.
THE CLOROX COMPANY, Defendant.

          DISCOVERY ORDER RE: ECF NO. 108

          LAUREL BEELER UNITED STATES MAGISTRATE JUDGE.

         INTRODUCTION

         In this 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.[1] 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.[2]

         The court's earlier orders describe the parties' dispute.[3] 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.[4] 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.

         STATEMENT

         1. The Spreadsheets

         The spreadsheets at issue are “claims matrix” spreadsheets.[5] 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.[6] Clorox's in-house advertising counsel submitted a declaration that she has written comments on the spreadsheets and/or approved or rejected claims.[7] 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.”[8] 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.”[9] 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.[10]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.

         Clorox's former Director of Marketing was deposed and provided the following testimony:

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 the document.
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?
[objection]
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?
[objection]
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 product line?
A. Our regulatory department.
Q. Okay.
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 substantiate.
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 review it.
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.
Q. Okay.
A. So . . ...

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