U.S. District Judge Rodney W. Sippel warned the parties in a ruling on discovery motions that if they keep on using “contentious litigation tactics” without regard to the “extreme burden” on the court, he will appoint a special master to resolve discovery disputes. He also told the parties that they need to publicly file redacted versions of sealed documents and reminded them that there are limits to what attorney-client privilege can shield.
“If not abundantly clear from the last status conference and the court’s most recent orders, the court has reached the limits of its considerable patience with discovery disputes in this case,” the judge said. “[G]iven their past behavior, the court feels compelled to remind all counsel of their ethical obligations. ... In short, play nice.”
The suit by Nestle Purina, filed in May 2014, accuses Blue Buffalo of misleading customers by claiming that its "True Blue Promise" brand pet foods contain no poultry by-products. Nestle Purina claims in the suit that independent laboratory studies found significant amounts of chicken or poultry by-products in Blue Buffalo's pet food.
Tuesday's ruling came after a June 9 order in which an an exasperated Judge Sippel denied a discovery motion by Nestle Purina as premature, and took issue with the “dozens” of discovery motions filed in the case. The judge asked counsel for the parties to “make good faith, sincere efforts to resolve discovery disputes on their own.”
In a hearing the next day, the judge brought up the issue of motions to seal. There have been 32 motions for leave to file sealed documents in the case, 22 of which have been filed since the beginning of May.
“I get up Monday morning, I read all the motions filed in all the cases I have, and there's five motions to seal in this case alone. And I'll be honest. I just was like, 'You got to be kidding me,'” the judge said, according to court transcripts. “I mean, it's just too much.
“I was just generally feeling oppressed,” the judge said of the filing of a mounting number of documents involving proprietary information, attorney-client privilege or work-product privilege. “We can't litigate in secret,” the judge told the parties, according to the transcript.
Since its filing, the suit has grown to include counterclaims by Blue Buffalo against Nestle Purina over what Blue Buffalo calls “a nationwide advertising smear campaign” waged by Nestle Purina and two PR agencies to convince consumers that Blue Buffalo pet foods are made of poultry by-products and corn. Those counterclaims were initially filed as a separate suit.
In May, Blue Buffalo filed a third-party complaint against its suppliers Diversified Ingredients Inc. and Wilbur-Ellis Co., seeking to pin the aleged adulteration on them and saying that the companies had admitted that they have been passing off a poultry by-product ingredient as more expensive chicken and turkey meal.
Blue Buffalo also filed its own false advertising suit against Nestle Purina, alleging that the company made fraudulent claims about a range of its pet food products. That suit was filed in a Connecticut court in October, but later removed to federal court in Missouri where it is now being heard by Judge Sippel, who recently refused to dismiss the case.
Counsel for the parties did not immediately return requests for comment on Wednesday.
Nestle Purina is represented by Carmine R. Zarlenga, Richard M. Assmus, Lori A. Zahalka and Kristine M. Young of Mayer Brown LLP, and David A. Roodman of Bryan Cave LLP
Blue Buffalo is represented by Steven A. Zalesin, Adeel A. Mangi and Vivian R.M. Storm of Patterson Belknap Webb & Tyler LLP, Martin Flumenbaum and Robert Atkins of Paul Weiss Rifkind Wharton & Garrison LLP, Gerard T. Carmody, David H. Luce and Sarah J. Klebolt of Carmody MacDonald PC, and Blue Buffalo of counsel Richard Maclean.
The case is Nestle Purina PetCare Co. v. The Blue Buffalo Co. Ltd., case number 4:14-cv-00859, in the U.S. District Court for the Eastern District of Missouri.
--Additional reporting by Brandon Lowrey. Editing by Stephen Berg.