Further Discovery Not Relevant Nor Proportional

In re Simply Orange Orange Juice Mktg. & Sales Practices Litig., MDL No. 2361 (W.D. Mo. Jan. 23, 2018).

In this order, the court addressed the plaintiffs’ motion — after years of ongoing discovery — to compel additional discovery of information encompassing five different topics. The court denied the entire motion, finding that the further discovery was neither relevant nor proportional.

This multidistrict litigation began in 2012. It alleges that the Coca-Cola Company falsely advertised its product, Simply Orange Juice, as a “natural” juice when it is instead carefully factory-formulated and tested.

The plaintiffs moved to compel discovery regarding five distinct issues. Coca-Cola objected, arguing that none of the information was relevant and that its production was not proportional.

First, the plaintiffs sought additional information about the flavors used in the juice products. Specifically, they requested records about the “purpose and function of the [additional juice] flavors.” The court agreed with Coca-Cola’s point that it had “already denied a similar motion.” Because the plaintiffs “offered the court no grounds for reconsideration of its prior order,” the court denied the request. In doing so, it also found that additional discovery would not be proportional to the needs of the case.

Second, the plaintiffs asked for further documents and information about Coca-Cola’s label representations. They argued that these representations, and Coca-Cola’s understanding of them, were relevant to determining whether the labels omitted material information. The court “decline[d] to reach the issue of relevance,” finding that the plaintiffs had already received “substantial relevant discovery.” Because additional information would again not be proportional to the needs of the case, the court denied this request.

Third, they moved for records documenting volatile levels in the juice during processing and storage. Agreeing with Coca-Cola’s argument that only the final product — not the product during processing and storage — is regulated, the court denied this motion as irrelevant.

Fourth, the plaintiffs requested information about Coca-Cola’s communications with the U.S. Food and Drug Administration. Here, Coca-Cola objected that it had already searched for, and failed to find, any such correspondence. It argued that the court “cannot compel production of documents that do not exist,” and the court agreed.

Finally, the plaintiffs moved to compel production of the custodial files for each witness Coca-Cola would call to testify at trial. Although the plaintiffs argued that this information was “relevant to all issues,” the court disagreed that they had established any relevance. Rather, it agreed with Coca-Cola that the plaintiffs sought this information for impeachment purposes. The court denied the motion but with a caveat. If the plaintiffs could “show prejudice during the trial” from not having had this information, the court would “reconsider and allow a recess” for the plaintiffs to review the files.

Takeaways on Requesting Additional Discovery

The court denied the plaintiffs’ motion largely because they had already obtained “substantial discovery” throughout the pendency of the case. Nor did the court refer to any allegations of spoliation, obstruction, or withholding of evidence. When a case has stretched on for years, be careful not to repeat discovery requests; if you must, address the court’s prior rulings directly and differentiate your current request. If you are asking for evidence again because you believe the other party withheld it, clearly set out the argument supporting your conclusion.

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