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Stone Brewing Co., LLC v. Molson Coors Brewing Co.

United States District Court, S.D. California

September 4, 2019

STONE BREWING CO., LLC, Plaintiff,
v.
MOLSON COORS BREWING COMPANY; MILLERCOORS LLC; and DOES 1 through 25, Defendants. MILLERCOORS LLC, Counter Claimant,
v.
STONE BREWING CO., LLC, Counter Defendant.

          ORDER DENYING PLAINTIFF STONE BREWING'S REQUEST FOR PARTIAL RECONSIDERATION OF THE COURT'S JULY 2, 2019 ORDER REDACTED [ECF NO. 145]

          Honorable Linda Lopez, United States Magistrate Judge

         Currently before the Court is Plaintiff's Motion for Partial Reconsideration of the Court's July 2, 2019 Order [ECF No. 145 (“Motion” or “Mot.”)], Defendant MillerCoors LLC's Opposition [ECF No. 149 (“Opposition” or “Oppo.”)], Defendant's Declaration of Grace Needleman and accompanying Exhibit [ECF Nos. 184, (XXXXX) (“Declaration”)], and Plaintiff's Reply [ECF Nos. 189, (XXXXX) (“Reply”)]. For the reasons set forth below, Plaintiff's Motion is DENIED.

         Plaintiff requests reconsideration of the Court's July 2, 2019 Order to the extent that it “(1) granted Defendant MillerCoors LLC's request to claw back communications between individuals at Mekanism and MillerCoors that were designated attorney-client privileged, and (2) denied Stone's request for a proper identification of the documents on Defendant's privilege log that relate to Stone and to the Keystone Rebrand.” Mot. at 2. Plaintiff argues that this information is “critically important information that relates to MillerCoors knowledge of Stone and its trademark, all of which MillerCoors has attempted to obscure throughout this litigation.” Id.

         Defendant opposes Plaintiff's Motion on the grounds that it is “time-barred under Local Civil Rule 7.1.i.2, which requires such motions to be filed ‘within twenty-eight (28) days after the entry of the ruling, order or judgment sought to be reconsidered,' which fell on July 30.” Oppo. at 2 (emphasis in original). Plaintiff's Motion was filed on August 1, 2019. See Docket. Plaintiff states that it did not obtain the final transcript from MillerCoors' new Rule 30(b)(6) witness until July 9, 2019. Mot. at 2. The Court notes that at least part of Plaintiff's Motion is based on this deposition testimony. As set forth in the undersigned Magistrate Judge's Chambers Rules, “[f]or oral discovery, the event giving rise to the dispute is the completion of the transcript of the relevant portion of the deposition.” See Judge Lopez's Civil Chambers Rules at V(C). Accordingly, the Court overrules Defendant's objection on the basis of timeliness. The Court will discuss the remaining issues raised in Plaintiff's Motion below.

         1. Communications Between Mekanism and MillerCoors

         a. Parties' Respective Positions

          Regarding the first issue of whether communications between Mekanism and MillerCoors are protected by the attorney-client privilege under the functional equivalence standard applied by the Ninth Circuit, Plaintiff argues that “Stone did not previously have the opportunity to brief the issues or present the Court with the dispositive testimony of the key witnesses prior to the Court's July 2 Ruling.” Id. at 4. Plaintiff argues that “[t]he undisputed evidence shows that the marketing agency personnel here were nothing like the individuals found to be functional employees in Graf and In re Bieter, 16 F.3d 929 (8th Cir. 1994), the Eighth Circuit case on which Graf relied.” Id. at 5. Specifically, Plaintiff argues that “Mr. Thornhill, Mekanism's 30(b)(6) witness, testified that MillerCoors did not exercise managerial authority over Mekanism personnel, and that Mekanism personnel ‘operate[d] as an outside vendor,' not as employees.” Id. at 7 (internal citations omitted).

         Plaintiff states that Mr. Thornhill, Mekanism's corporate representative, “testified unequivocally that agency personnel were not the functional equivalent of employees of MillerCoors.” Id. at 4. Plaintiff cites to Mr. Thornhill's deposition testimony as follows:

Q: Would it be fair to say that Mekanism personnel functionally operated as employees of MillerCoors, or did they operate separately as independent contractors?
[Objections]
A: We operate as an outside vendor.
Q: Not as employees?
A: Correct.

Id. (citing Ex., 1, Thornhill Tr. At 14:1-19). Plaintiff further argues that “[b]ecause Mekanism did not ‘possess[] information that is possessed by no other,' there is no privilege. Mot. ...


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