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DISCOVERY DISPUTE JOINT REPORT #1

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GUTRIDE SAFIER LLP

ADAM J. GUTRIDE (State Bar No. 181446)

SETH A. SAFIER (State Bar No. 197427) 

MARIE A. MCCRARY (State Bar No. 262670)

100 Pine Street, Suite 1250

San Francisco, CA 94111

Telephone: (415) 271-6469

Facsimile: (415) 449-6469

Attorneys for Plaintiff 

PATTERSON BELKNAP WEBB & TYLER LLP

Steven A. Zalesin (pro hac vice)

Michelle W. Cohen (pro hac vice)

1133 Avenue of the Americas

New York, NY 10036-6710

Telephone: (212) 336-2000

Facsimile: (212) 336-2222

SHOOK HARDY & BACON LLP

Tammy B. Webb

One Montgomery Tower, Suite 2700

San Francisco, CA 94104

Telephone: 415-544-1904

Facsimile: 415-391-0281

tbwebb@shb.com

Attorneys for Defendant

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

JACKIE FITZHENRY-RUSSELL,

Plaintiff,

v.

THE COCA-COLA COMPANY,

Defendant.

Case No. 5:17-CV-00603-EJD

DISCOVERY DISPUTE JOINT 

REPORT # 1

This joint report addresses the parties’ dispute regarding whether Coca-Cola is required to 

search for, review, and produce documents, including email correspondence, created after the 

date of the filing of the Complaint. The parties’ lead counsel met in person on January 23, 2018 at 

the office of Shook Hardy & Bacon LLP in San Francisco. The deadline for Plaintiff to provide 

her expert report(s) offered in support of class certification is April 16, 2018. The close of 

Case 5:17-cv-00603-EJD Document 59 Filed 02/06/18 Page 1 of 8
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discovery is not yet scheduled. The parties’ lead counsel attest that they complied with the 

standing orders’ requirements for the presentation of joint discovery disputes.

PLAINTIFF’S STATEMENT

A. Statement of the Case

This case concerns Seagram’s Ginger Ales (the “Products”) beverages. Defendant 

prominently states, on the label of all of the Products, and on other packaging and marketing 

materials, that its Seagram’s Ginger Ales are “MADE WITH REAL GINGER.” (First Amended 

Complaint (Dkt.# 55), ¶¶ 2-4.) Plaintiff alleges that the representation is false and/or misleading 

because (i) it leads consumers to reasonably believe that the Products are made from, and contain, 

real ginger root, and that by drinking the Products they will receive the health benefits associated 

with consuming real ginger root; and (ii) the Products are, in fact, made with a chemical flavoring 

compound manufactured to mimic the flavor of ginger root without any of the health benefits of 

real ginger root. (Id.)

B. Summary of the Dispute

Plaintiff served her first set of requests for production (the “requests”) on Defendant on 

May 30, 2017. Plaintiff served her first set of interrogatories on Defendant on September 5, 2017.

Defendant served its objections and responses to the requests on June 29, 2017 and its 

objections and responses to the interrogatories on October 5, 2017. In response to each of the 

requests, Defendant objected to “the Requests as overbroad, unduly burdensome, and not 

proportional to the needs of the case to the extent they seek information without any temporal

limitation or outside the Class Period. Unless otherwise noted, Coca-Cola will only produce

documents from December 23, 2012 through December 23, 2016.” In response to each of the 

interrogatories, Defendant objected to “the Interrogatories as overbroad, unduly burdensome, and 

not proportional to the needs of the case to the extent they seek information without any temporal 

limitation or outside the Class Period. Unless otherwise noted, Coca-Cola’s responses are limited 

to the period December 28, 2012 through December 28, 2016.” Defendant amended its responses 

to the requests and interrogatories but did not withdraw its temporal objections.

Case 5:17-cv-00603-EJD Document 59 Filed 02/06/18 Page 2 of 8
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The parties participated in a lengthy meet and confer call. During that call, Defendant 

agreed it would search for responsive documents and relevant information pre-dating December 

28, 2012. Defendant did not agree to search for responsive documents or relevant information 

after December 28, 2016. Coca-Cola agreed to “consider a proposal under which [it] would

produce almost any other category of document—sales data, labeling, consumer research, etc.—

post-dating the Complaint,” but that is insufficient because it will not search for responsive email 

correspondence post-dating the Complaint. Defendant does not contend that the information and 

email correspondence are irrelevant; rather, it objects that it would be too burdensome to search 

for these documents because it anticipates that there would be a lot of privileged 

communications—specifically privileged emails with in house attorneys.1 When asked, 

Defendant could not substantiate the burden—i.e., it did not know how many such potentially 

privileged emails were at issue.2 It also did not have any suggestions when Plaintiff asked if there 

was some technological way the theoretically privileged emails could be separated out.

C. Defendant Should Produce (or Log) Documents Created After the Filing of 

the Lawsuit

There is no basis to use the date of the filing of the complaint as a temporal limitation to 

discovery. Plaintiff’s proposed class includes individuals who purchased Seagram’s ginger ale 

after the filing of the Complaint. Moreover, documents relevant to Plaintiff’s claims, and this 

litigation, could have been created after Plaintiff’s complaint was filed, including but not limited 

to, documents discussing consumer understanding of the phrase “made from real ginger,”

consumer complaints, testing of samples of Seagram’s ginger ales, competitive analysis of the

market for ginger ales, pricing and sales related information, and/or changes to Defendant’s 

marketing materials, suppliers, MSRP, ad campaigns, recipe, formula, or labels. Further 

Defendant’s email correspondence regarding these subjects are equally relevant to Plaintiff’s 

claims. 

 1 Plaintiff and Defendant have already agreed that post-filing communications with outside 

counsel need not be searched or logged. (Dkt. # 57.)

2 Defendant did suggest that there could be 500 emails after the complaint was filed. To Plaintiff, 

reviewing 500 emails for privilege does not seem all that burdensome. 

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Plaintiff is mindful, particularly for ESI document searches, that there typically must be 

some cut-off date—i.e., the date through which the data is amassed and searched. But that date is 

almost invariably the search date, and not, as Defendant proposes, the date of the filing of the 

initial complaint. This is consistent with federal practice in the FOIA domain, see, e.g., Our 

Children’s Earth Foundation v. National Marine Fisheries Service, Case No. 14-1130 SC, 2015 

WL 4452136, at *10 (N.D. Cal., July 20, 2015) (holding the legal standard is that the appropriate 

cut-off date is the day searching began) and standard electronic discovery practices. See, e.g., 

MGA Entertainment, Inc. v. National Products Ltd., Case No. CV1007083, 2012 WL 12886446, 

at *3 (C.D. Cal., Jan. 26, 2012) (ordering search of electronic files readily available on 

Defendants’ computers and/or computer system (or computers under their control) as of the date 

of this order, long after case was filed.)

Even if some earlier date was also reasonable, Defendant has failed to meet its obligation 

to substantiate its “unduly burdensome” objection. See In re ATM Fee Antitrust Litigation, 233 

F.R.D. 542, 545 (N.D. Cal. 2005) (holding the objecting party has the burden to substantiate its 

objections with specifics sufficient to justify denying discovery); see also A. Farber and 

Partners, Inc. v. Garber, 234 F.R.D. 186, 188 (C.D. Cal. 2006) (holding objections such as 

“overly burdensome and harassing” are improper—especially when a party fails to submit any 

evidentiary declarations supporting such objections); Bird v. Wells Fargo Bank, No. 

116CV01130, 2017 WL 1213425, at *4 (E.D. Cal., Mar. 31, 2017) (“When objecting on the basis 

that a discovery request is overly burdensome, the objecting party must affirmatively support its 

objection with compelling proof in the form evidentiary declarations or other evidence 

specifically describing the burden.”). Indeed, in that parties’ ongoing meet and confer, despite 

Plaintiff’s repeated requests, Defendant could not substantiate its purported burden. Nor could it 

have any meaningful discussion regarding how the purported burden might be lessened. At best, 

Defendant is guessing that there will be a burdensome amount of internal privileged 

communications, but that is inadequate.

D. Plaintiff’s Final Proposal

Plaintiff requests that the Court overrule Defendant’s temporal objections to the Requests 

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and Interrogatories and order Defendant to search for documents that post-date the filing of the 

Complaint. The cut-off should be the date the data is searched. If there are responsive documents 

that Defendant contends are privileged that do not involve outside trial counsel, Defendant should 

log those communications to substantiate its claim of privilege.

DEFENDANT’S STATEMENT

A. Summary of Dispute

Coca-Cola has not suggested “us[ing] the date of the filing of the complaint as a temporal 

limit to discovery.” Rather, it has resisted Plaintiff’s demand that it undertake a full ESI 

collection of emails post-dating the Complaint, because the burden of reviewing such emails for 

privilege outweighs the marginal benefit that discovery would afford to Plaintiff. Coca-Cola has, 

however, represented in writing that it will “consider a proposal under which [it] would produce 

almost any other category of document—sales data, labeling, consumer research, etc.—postdating the Complaint.” (emphasis added) Plaintiff has not responded to that offer. 

In addition, after Plaintiff expressed concerns that her anticipated class certification 

motion would be prejudiced by incomplete discovery relating to potential post-Complaint 

changes to the product formula, Coca-Cola represented that no such changes have occurred. It 

also provided Plaintiff with a stipulation that it would not rely upon any such changes in opposing 

her motion. Plaintiff rejected the stipulation and declined Coca-Cola’s invitation to offer an 

alternative one. Thus, despite Coca-Cola’s best efforts, this issue has ended up before the Court. 

B. The Requested Discovery Is Irrelevant and Unduly Burdensome to Produce

In order to be permissible under Rule 26, discovery must be “relevant and proportional to 

the needs of the case,” and its “likely benefit” must outweigh the “burden or expense” associated 

with producing it. Fed. R. Civ. P. 26(b)(1). Plaintiff’s request for post-Complaint emails does 

not satisfy these standards. 

As Coca-Cola has explained in written correspondence and meet-and-confer discussions, 

the “burden or expense” of searching, collecting, processing, and producing email generated 

between December 2016 and the present would be considerable. Because the challenged “Made 

With Real Ginger” claim is not new, having appeared consistently on product labels since 2013, 

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most of the post-Complaint email correspondence relating to the claim would inevitably consist 

of privileged discussions related to Coca-Cola’s defense of this lawsuit. Reviewing such email 

for privilege is not a mechanical or “technological” function, as it is the content and purpose of a 

communication, not its recipients, that determines whether the privilege applies. See In re 

Fischel, 557 F.2d 209, 211 (9th Cir. 1977) (“[T]he privilege is not limited to the actual 

communication by the client to the attorney, or vice versa”); see also Carl Zeiss Vision Int’l 

GmbH v. Signet Armorlite Inc., 2009 U.S. Dist. LEXIS 111877, at *21 (S. D. Cal. Dec. 1, 2009) 

(“[T]he attorney-client privilege continues to apply to communications made for the purpose

obtaining legal advice, even if the communications were never sent to counsel”). Accordingly, 

even if Coca-Cola were relieved of the obligation to log some subset of the privileged 

communications, the process of identifying them would still involve considerable attorneys’ fees.3 

Moreover, Plaintiff has not wavered in her demand that Coca-Cola incur the burdens of logging 

all privileged post-Complaint communications that do not include outside counsel. Because 

outside counsel has not been copied on many of in-house counsel’s lawsuit-related internal 

emails, the burden of logging such communications would not be insignificant. 

Even as Plaintiff asks Coca-Cola to shoulder this expense, however, she cannot articulate 

what she hopes to gain from it. Although she identifies various categories of nonprivileged postComplaint information that might be marginally relevant to her claims—such as consumer 

research, market analysis, and pricing- and sales-related information—Coca-Cola has already 

indicated that it will produce those categories of information. Her request is thus effectively 

limited to email communications in which Coca-Cola employees discuss a three-year-old label 

claim, unrelated to the pendency of a lawsuit regarding that claim. Even assuming that a handful 

 3 Plaintiff inexplicably takes Coca-Cola to task for not knowing how many privileged 

communications there are. Obviously, Coca-Cola has no way of determining this unless and until 

it actually collects and reviews all of the relevant emails. But the lawsuit has been pending for 

over a year, during which time Coca-Cola and its inside and outside counsel have engaged in 

privileged conversations regarding, among other things, removing the case; briefing a motion to 

dismiss; discussing possible resolution and mediation options with Plaintiff; and—most 

significantly—gathering documents and information responsive to Plaintiff’s broad and numerous 

discovery requests. Under these circumstances, it stands to reason that the volume of privileged 

communications is significant. 

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of communications in this category exist, the negligible benefit that Plaintiff would derive from 

them does not justify the burden on Coca-Cola associated with wading through more than a year’s 

worth of communications about the lawsuit, reviewing them for privilege, and logging many, if

not all, of them. 

The cases Plaintiff relies upon do not support her contention that she is entitled to this 

irrelevant and burdensome discovery. One concerns the interpretation of a FOIA regulation that 

is not at issue in this case. See Our Children’s Earth Found. v. Nat’l Marine Fisheries Serv., No. 

14-4365 SC, 2015 U.S. Dist. LEXIS 94997, at *29 (N.D. Cal. July 20, 2015) (construing 15 

C.F.R. § 4.5(a)). And in the other, MGA Entertainment v. National Products Ltd., the court 

merely noted that the defendant should re-do a search it had already conducted because it had 

apparently misapplied keywords to the wrong fields. MGA Entm’t, Inc. v. Nat’l Prods., No. CV 

10-07083 JAK (SSx), 2012 U.S. Dist. LEXIS 196271, at *10 (C.D. Cal. Jan. 26, 2012). Neither 

case has anything to do with whether a defendant must search for post-Complaint documents in a 

false-labeling lawsuit like this, where the burden of such a search dramatically outweighs its 

relevance. Coca-Cola should not be required to undertake a full ESI collection of emails postdating the Complaint.

C. Defendant’s Final Proposal

Coca-Cola requests that the Court enter a protective order providing that it does not need 

to (1) collect or review email created after Plaintiff filed her Complaint; (2) run keyword searches 

or review electronically-stored documents created after Plaintiff filed her Complaint; or (3) 

produce a privilege log concerning the same. Coca-Cola remains willing to stipulate that it will 

not oppose class certification, or make any arguments in opposition to class certification, on the 

basis that any aspect of the formula for the Product changed after Plaintiff filed her Complaint. 

Subject to its other objections, Coca-Cola is also willing to produce certain categories of 

documents (excluding email) Plaintiff identified in her Statement of Position above to the extent 

it has already agreed to produce those documents within the Class Period, such as consumer 

complaints, market research, and pricing information.

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Dated: February 6, 2018

By: /s/ Marie A. McCrary /

Adam J. Gutride

Seth A. Safier

Matthew T. McCrary

Marie A. McCrary

GUTRIDE SAFIER LLP

100 Pine Street, Suite 1250

San Francisco, CA 94111

Telephone: (415) 271-6469

Facsimile: (515) 449-6469

Attorneys for Jackie Fitzhenry-Russell

/s/ Jane Metcalf (by permission) /

Steven A. Zalesin (pro hac vice)

Michelle W. Cohen (pro hac vice)

Patterson Belknap Webb & Tyler LLP

1133 Avenue of the Americas

New York, NY 10036-6710

Telephone: 212-336-2000

Facsimile: 212-336-2222

sazalesin@pbwt.com 

mcohen@pbwt.com

Tammy B. Webb

Shook Hardy & Bacon LLP

One Montgomery Tower, Suite 2700

San Francisco, CA 94104

Telephone: 415-544-1904

Facsimile: 415-391-0281

tbwebb@shb.com

Attorneys for The Coca-Cola Company.

Case 5:17-cv-00603-EJD Document 59 Filed 02/06/18 Page 8 of 8