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In re Simply Orange Orange Juice Marketing and Sales Practices Litigation

United States District Court, W.D. Missouri, Western Division

January 23, 2018

IN RE SIMPLY ORANGE ORANGE JUICE MARKETING AND SALES PRACTICES LITIGATION This Document Relates To ALL CASES

          ORDER

          Fernando J. Gaitan, Jr. United States District Judge.

         Pending before the Court are (1) Plaintiffs' Motion to Compel Discovery from the Coca-Cola Company (Doc. No. 350); (2) Defendant's Motion for Protective Order against Additional Third-Party Discovery (Doc. No. 348); (3) Third Party Firmenich Incorporated's Motion for a Protective Order Prohibiting any Further Discovery from Firmenich (Doc. No. 355); and (4) Third Party Givaudan Flavors Corporation's Motion for a Protective Order Prohibiting any Further Discovery from Givaudan (Doc. No. 367).

         The Court considers all, below.

         I. Plaintiffs' Motion to Compel Discovery from the Coca-Cola Company (Doc. No. 350)

         Plaintiffs argue that there are five disputed issues this Court must resolve before discovery proceeds: (1) Are plaintiffs entitled to more documents and information regarding the flavors?; (2) Are plaintiffs entitled to more documents and information regarding the meaning of Coca-Cola's label representations on the orange juice products?; (3) Are plaintiffs entitled to documents sufficient to show volatile levels in the orange juice products during processing and storage of the juice including but not limited to documents reflecting the results of a mass balance or similar test?; (4) Are plaintiffs entitled to more documents and information regarding FDA's rules and regulations governing the orange juice products, regarding any subsequent changes made to labeling, formulation, or advertising of the orange juice products in response to or following communications with FDA, and any inquiries or responses from any governmental department or other agency concerning the orange juice products?; and (5) Are plaintiffs entitled to custodial files (i.e., ESI) of each witness whom Coca-Cola intends to call in support of its case? See Doc. No. 351. Defendant, unsurprisingly, argues that none of the above information is relevant, and even if it was, production of such information is not proportional to the needs of the case. Fed.R.Civ.P. 26(b)(1).

         For the following reasons, the Court finds in favor of defendant.

         (a) Are plaintiffs entitled to documents and information regarding the flavors?

         Here, with respect to requests for production nos. 1, 4, 8, 17, and interrogatory number 14, plaintiffs are seeking what they describe as documents and communications regarding the design and development, purpose and function of the flavors and Coca-Cola's internal descriptions of the flavors. Defendant responds that those categories (purpose and function, development and design) are not relevant, and the Court has already denied a similar motion to compel documents concerning the design, development purpose and function of Coca-Cola's add-backs. See Order, Doc. No. 167. As noted by defendant, plaintiffs have offered the Court no grounds for reconsideration of its prior order limiting such discovery. As further discussed by defendant, the reason why it adds the add-back is irrelevant, as the FDA recognizes that manufacturers may make adjustments to the levels of oil added back to juice to improve the juice's organoleptic characteristics to achieve uniform quality year-round. The Court further finds that any additional discovery on this matter would not be proportional to the needs of this case. Plaintiffs' request is DENIED.

         (b) Are plaintiffs entitled to documents and information regarding the meaning of Coca-Cola's label representations on the orange juice products?

         This issue relates to plaintiffs' request for production number 14. Plaintiffs indicate that the meaning of the label representations is relevant as to whether the orange juice products omitted material information from the products' labels. Plaintiffs argue that the consumer's and defendant's own understanding of the label is relevant, for instance, under the MMPA, which defines a “material fact” as one which “would be likely to induce a reasonable consumer to act, respond or change his/her behavior in any substantial manner.” 15 CSR 60-9.010(1)(C). Defendant argues that the meaning of its label representations is not relevant, and plaintiff has already received substantial discovery on this issue in conjunction with class certification discovery. Defendant notes, further, that this Court has already determined that because consumers are likely to interpret the labels differently, reliance, materiality and/or causation cannot be determined on a classwide basis. Defendant also notes it has already produced consumer surveys and market-research studies on its orange juice labels and advertisements. With regard to defendant's subjective intent, moreover, defendant argues that is irrelevant to the issues remaining in this case. The Court declines to reach the issue of relevance at this time; however, the Court finds defendant's remaining reasoning persuasive, and finds that plaintiffs have already received substantial relevant discovery on this matter. Further discovery would not be proportional to the needs of this case. Plaintiff's request is DENIED.

         (c) Are plaintiffs entitled to documents sufficient to show volatile levels in the orange juice products during processing and storage of the juice including but not limited to documents reflecting the results of a mass balance or similar test?

         Plaintiffs' request regarding volatile levels during processing and storage relates to request for production number 23. Plaintiffs argue that this knowledge is relevant to all the questions certified by the Court in its order on class certification. Defendant objects, however, saying that plaintiffs have received substantial discovery regarding volatile levels in the juice products; plaintiffs, however, counter that the volatile levels produced by defendant have been for final products, and plaintiffs argue that they need to know whether the modified orange oils restores natural constituents and/or volatiles, and plaintiffs cannot know this without knowing the starting values. Defendant, however, notes that the FDA recognizes that restoration of volatiles lost in storage is just one reason that manufacturers may adjust the levels of orange pulp, oil, and essence, and that FDA only regulates the levels in the final products. In other words, for a product to be properly labelled under FDA standards, there does not need to be a one-to-one restoration of volatiles in orange juice. The Court agrees with defendant that the volatile levels in the orange juice products during processing and storage of the juice are irrelevant to the issues certified in this matter. Accordingly, plaintiff's request for additional discovery is DENIED.

         (d) Are plaintiffs entitled to documents and information regarding FDA's rules and regulations governing the orange juice products, regarding any subsequent changes made to labeling, formulation, or advertising of the orange juice products in response to or following communications with FDA, and any inquiries or responses from any governmental department or other agency concerning the orange juice products?

         Plaintiffs' request relates to interrogatory number 11 and requests for production nos. 31-33. Plaintiffs argue that these documents will likely demonstrate that Coca-Cola has taken positions with the FDA that are inconsistent with positions it has taken in this case. Defendant, on the other hand, objects because it previously agreed to produce “final correspondence with governmental entities regarding the marketing and orange juice products to the extent such documents exist and can be located after reasonable search.” ...


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