United States District Court, S.D. California
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
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
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.”
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.
Communications Between Mekanism and
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).
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?
A: We operate as an outside vendor.
Q: Not as employees?
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. ...