Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re Santa FE Natural Tobacco Co. Marketing & Sales Practices and Products Liability Litigation

United States District Court, D. New Mexico

August 18, 2018

IN RE SANTA FE NATURAL TOBACCO COMPANY MARKETING & SALES PRACTICES AND PRODUCTS LIABILITY LITIGATION

          Randi McGinn Kathleen J. Love McGinn, Carpenter, Montoya & Love, P.A. Albuquerque, New Mexico Attorneys for Plaintiffs Patrick Scott, Victoria Cuebas, Steve Okstad, Michael Anderson, Brooke Balocca, Elijah Bent, Sam Bowman, Makotie Brim, Terry Cliver, Christolow, George Coon, Gary Cruse, Margie Harris, Charles Honse, Clinton Hornton, Colin Jass, Christopher Jensen, Shereen Keith, Kelly Keiser, Asher King, Marilyn Komarinski, Jodi Kumpula, Tom Kurtz, Richard Kusick, Mike Lair, Tracy Lee, Kathleen Lelli, Robert Litwin, Linda MacDonald-Lewis, Richard Morelock, Deborah Orrtim Paulson, Richard Peavy, Concetta Schultz, Judy Sell, Harrison Thomas, Dani Weir, Tom Weir, Kyle Wiebe, Vicki Wilson, Justin Sproule, Rudolph Miller, Joshua Horne, Albert Lopez, Charlene Blevins, Jason Cole, and Rachel King

          Scott P. Schlesinger Jonathan Gdanski Jeffrey Louis Haberman Schlesinger Law Offices, P.A. Fort Lauderdale, Florida Attorneys for Plaintiffs Justin Sproule, Patrick Scott, Victoria Cuebas, Steve Okstad, Michael Anderson, Brooke Balocca, Elijah Bent, Charlene Blevins, Sam Bowman, Matokie Brim, Terry Cliver, Christos Christolow, George Coon, Gary Cruse, Margie Harris, Charles Honse, Clinton Horton, Collin Jass, Christopher Jensen, Shereen Keith, Kelly Keiser, Asher King, Marilyn Komarinski, Jodi Kumpula, Tom Kurtz, Richard Kusick, Mike Lair, Tracy Lee, Kathleen Lelli, Robert Litwin, Linda MacDonald-Lewis, Rudolph Miller, Richard Morelock, Deborah Orrtim Paulson, Richard Peavy, Concetta Schultz, Judy Sell, Harrison Thomas, Dani Weir, Tom Weir, Kyle Wiebe, and Vicki Wilson

          Randi McGinn Kathleen J. Love McGinn, Carpenter, Montoya & Love, P.A. Albuquerque, New Mexico --and-- Charles J. LaDuca Cuneo Gilbert & LaDuca, LLP Washington, DC --and-- Michael Robert Reese Reese LLP New York, New York --and-- Nicholas Koluncich Law Offices of Nicholas Koluncich, LLC Albuquerque, New Mexico --and-- Melissa Weiner Pearson, Simon & Warshaw, LLP Minneapolis, Minnesota --and-- Charles D Moore Halunen Law Minneapolis, Minnesota Attorneys for Plaintiff Anthony Dunn

          Randi McGinn Kathleen J. Love McGinn, Carpenter, Montoya & Love, P.A. Albuquerque, New Mexico --and-- John C. Bienvenu Bienvenu Law Office Santa Fe, New Mexico --and-- Mark H Donatelli Reed C. Bienvenu Rothstein Donatelli LLP Santa Fe, New Mexico --and-- Ronald Marron Law Offices of Ronald A. Marron San Diego, California Attorneys for Plaintiffs Ceyhan Haskal, Michael Robinson, Harry Vartanyan, Michael Yang, Doug Pyle, and Nick Vadis

          Charles S. Zimmerman Zimmerman Reed Scottsdale, Arizona --and-- Caleb Marker Zimmerman Reed Manhattan Beach, California --and-- Nancy Ruth Long Long Komer & Associates, P.A. Santa Fe, New Mexico --and-- Randi McGinn Kathleen J. Love McGinn, Carpenter, Montoya & Love, P.A. Albuquerque, New Mexico Attorneys for Plaintiffs Theodore Rothman and C.M. LeCompte

          Charles S. Zimmerman Zimmerman Reed Scottsdale, Arizona --and-- Caleb Marker Zimmerman Reed Manhattan Beach, California --and-- Randi McGinn Kathleen J. Love McGinn, Carpenter, Montoya & Love, P.A. Albuquerque, New Mexico Attorneys for Plaintiffs Jacques-Rene Herbert, Sara Benson, Carol Murphy, Francisco Chavez, Abigail Emmons, and Joshua Horne

          Randi McGinn Kathleen J. Love McGinn, Carpenter, Montoya & Love, P.A. Albuquerque, New Mexico --and-- Douglas Gregory Blankinship Finkelstein Blankinship, Frei-Pearson & Garber, LLP White Plains, New York --and-- Kim Eleazer Richman Richman Law Group Brooklyn, New York Attorneys for Theodore Rothman

          Randi McGinn Kathleen J. Love McGinn, Carpenter, Montoya & Love, P.A. Albuquerque, New Mexico --and-- Kim Eleazer Richman Richman Law Group Brooklyn, New York Attorneys for Danae Grandison, Michael Laboon, and Dave Moyer

          Randi McGinn Kathleen J. Love McGinn, Carpenter, Montoya & Love, PA Albuquerque, New Mexico --and-- Benjamin Michael Lopatin Eggnatz, Lopatin, & Pascucci, LLP San Francisco, California Attorneys for Plaintiff Russell Brattain

          Randi McGinn Kathleen J. Love McGinn, Carpenter, Montoya & Love, P.A. Albuquerque, New Mexico --and-- Daniel L. Warshaw Alexander R. Safyan Pearson, Simon & Warshaw, LLP Sherman Oaks, California --and-- Erika E Anderson Law Offices of Erika E. Anderson Albuquerque, New Mexico Attorneys for Plaintiff Shannon White

          Randi McGinn Kathleen J. Love McGinn, Carpenter, Montoya & Love, P.A. Albuquerque, New Mexico --and-- Gretchen Mary Elsner Elsner Law & Policy, LLC Santa Fe, New Mexico Attorneys for Plaintiffs Danae Grandison, Michael Laboon, and Dave Moyer

          Randi McGinn Kathleen J. Love McGinn, Carpenter, Montoya & Love, P.A. Albuquerque, New Mexico --and-- John Allen Yanchunis, Sr. Marisa Kendra Glassman Morgan & Morgan, PA Tampa, Florida --and-- Scott W. Weinstein Morgan & Morgan, PA Fort Myers, Florida --and-- Keith R. Mitnik Morgan & Morgan, PA Orlando, Florida Attorneys for Plaintiff Ashley Waldo

          Randi McGinn Kathleen J. Love McGinn, Carpenter, Montoya & Love, P.A. Albuquerque, New Mexico --and-- Steven William Teppler Abbott Law Group, P.A. Jacksonville, Florida Attorneys for Plaintiff Timothy Ruggiero

          Randi McGinn Kathleen J. Love McGinn, Carpenter, Montoya & Love, P.A. Albuquerque, New Mexico --and-- John Russell Bart Pate J.R. Pate, PC - Law Office St Thomas, Virgin Island Attorneys for Plaintiff Desire Gudmundson

          Randi McGinn Kathleen J. Love McGinn, Carpenter, Montoya & Love, P.A. Albuquerque, New Mexico --and-- Matthew David Schultz Levin Papantonio Thomas P.A. Pensacola, Florida Attorney for Plaintiff Scott Johnston

          Randi McGinn Kathleen J. Love McGinn, Carpenter, Montoya & Love, P.A. Albuquerque, New Mexico --and-- Joel R. Rhine Rhine Law Firm, P.C. Wilmington, North Carolina Attorneys for Jason Cole and Rachael King

          Chad C. Messier Dudley Topper & Feuerzeig St. Thomas, United States Virgin Islands --and-- Andrew G. Schultz Rodey Dickason Sloan Akin & Robb, P.A. Albuquerque, New Mexico --and-- Peter J. Biersteker William D Coglianese Jon Gregory Heintz Jordan Von Bokern Washington, DC Jones Day --and-- David B. Alden Joseph R Coburn Cleveland, Ohio Jones Day --and-- David M. Monde Michael Fraser Stoer Jennifer Bunting-Graden Atlanta, Georgia Jones Day --and-- Paul Courtney Huck, Jr. Miami, Florida Jones Day --and-- Sharyl Reisman Mark R. Seiden Charles R. A. Morse New York, New York Jones Day --and-- David Craig Kiernan San Francisco, California Jones Day --and-- Troy A. Fuhrman Tampa Florida Jones Day Attorneys for the Defendants

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on: (i) the Plaintiffs' oral request for a 30(b)(6) deposition, see Transcript of Proceedings at 9:7-9 (Schultz)(taken June 13, 2018), filed July 4, 2018 (Doc. 196)(“Tr.”); (ii) the Defendants' oral request for responses to their written discovery requests before depositions, see Tr. at 18:23-25 (Monde); and (iii) the Letter from Jonathan R. Gdanski to the Court at 2 (dated April 23, 2018), filed July 24, 2018 (Doc. 198)(“April 23 Letter”). The Court held a status conference on June 13, 2018. The primary issues are: (i) whether the Court should grant the Plaintiffs' request to depose a corporate representative to determine why the Defendants' use of predictive coding failed to produce hundreds of thousands of potentially responsive documents; (ii) whether the Court should grant the Defendants' request to require the Plaintiffs to produce discovery materials in advance of depositions; and (iii) whether the Court should impose time, place, and manner restrictions on the Defendants' fact-witness interviews. The Court will grant the deposition and discovery requests, because the Defendants agreed to a deposition, and the Plaintiffs agreed to turn over discovery before the depositions. The Court will not, however, impose time, place, and manner restrictions on the Defendants' fact-witness interviews, because the interviews are already finished, and the Plaintiffs' requests are not adequately tailored to the harms alleged.

         FACTUAL BACKGROUND

         The Court briefly summarizes the factual background for context. A more thorough discussion can be found in its Memorandum Opinion and Order at 4-9, 288 F.Supp.3d 1087, 1128-32, filed December 21, 2017 (Doc. 146)(“MOO”). The Plaintiffs are consumers who have purchased Natural American Spirit cigarettes. See Consolidated Complaint ¶¶ 12-23, at 4-11, filed January 12, 2017 (Doc. 82)(“Complaint”). They contend that they bought those cigarettes at a price premium, because advertisements and branding, which describe the cigarettes as “Natural, ” “Additive-Free, ” and “Organic, ” led them to erroneously believe that Natural American cigarettes are safer and healthier than other cigarette brands. Complaint ¶¶ 4-6, at 2. See id. ¶¶ 12-23, at 4-11. The Plaintiffs also allege that the “Additive-Free” branding led them to think incorrectly that the Natural American menthol-variety cigarettes are additive-free.[1]Complaint ¶ 10, at 3. See id. ¶¶ 12-23, at 3-11.

         PROCEDURAL BACKGROUND

         Early in this case, the Court entered an Order for the Discovery of Electronically Stored Information, filed September 27, 2016 (Doc. 55)(“ESI Order”). See ESI Order at 1. In it, the Court notes that “[t]he parties . . . agree to identify the methodologies used to search the text of ESI, ” ESI Order at 1, and also that “[t]he Parties agree to meet and confer to determine search methodologies and protocols to be used in connection with the Parties' production of ESI, ” ESI Order at 6. Additionally, the Court observes that, “[i]n an effort to control costs and reduce the volume of ESI that is not relevant to the matter, the Parties may filter ESI, potentially including” the following methods: (i) spam filtering; (ii) using search terms; and (iii) removing duplicates. ESI Order at 6.

         1. April 13 Letter.

         On April 13, 2018, Melissa Weiner -- an attorney for the Plaintiffs -- sent a letter to David Monde -- an attorney for the Defendants -- detailing “a massive discovery failure affecting the entire corpus of the Defendants' discovery production to Plaintiffs.” Letter from Melissa Weiner to David Monde at 1, dated April 13, 2018, filed July 24, 2018 (Doc. 197)(“April 13 Letter”). According to Ms. Weiner, Mr. Monde informed the Plaintiffs in a meet and confer that the Defendants “have had problems with ‘predictive coding' as a way of identifying responsive and non-responsive emails, leading to an ‘underproduction' of relevant materials.” April 13 Letter at 1. Ms. Weiner also notes that Mr. Monde informed the Plaintiffs that: (i) the Defendants became aware of the discover deficiency “within the last 7-10 days”; (ii) the Defendants' awareness arose during the course of deposition preparations; (iii) the Defendants have not yet identified the full scope of the issue, but Mr. Monde wanted to inform Plaintiffs' counsel before a week had passed after the problem's identification; (iv) the Defendants' counsel “have identified significant problems with email production -- specifically, relevant and responsive emails . . . that were not but should have been produced”; (v) the Defendants are running “audits on particular witnesses in an attempt to produce relevant documents in light of the upcoming depositions”; and (vi) the Defendants' counsel “still do not know the entire scope of the issue” nor can they give a “timeline or solution for remedying the failure.” April 13 Letter at 1. Ms. Weiner says that “[t]he audits for the three deponents set to be deposed this week indicated that you failed to produce more than 50, 000 responsive documents relating to those witnesses alone.” April 13 Letter at 1.

         Ms. Weiner contends that the Defendants' discovery failure is particularly alarming given that the “Plaintiffs' counsel first raised the email deficiency . . . in October of 17, ” and that, at the time, Mr. Monde was “dismissive” of the Plaintiffs' counsel's concerns. April 13 Letter at 2. Ms. Weiner also argues that the use of predictive coding violates the ESI Order, because the Defendants did not alert the Plaintiffs or their designated ESI Liaison that they were using such a methodology. See April 13 Letter at 2. She contends that the Plaintiffs “remain in the dark as to where the failure occurred, why it occurred, and its full extent, ” and that the Defendants “still have not provided any details currently being employed to correct” the discovery failure, resulting in prejudice. April 13 Letter at 2. Accordingly, Ms. Weiner requests “immediate discovery on Defendants' discovery process employed from the outset of this case, including depositions and written discovery, ” and that the “Defendants compensate Plaintiffs' counsel for the time and resources expended in connection with Plaintiffs' review of Defendants' defective and non-responsive previous production sets.” April 13 Letter at 3. She argues that such a remedy will ensure that “re-review of withheld documents is undertaken properly” and that the Defendants will “diligently and competently” comply with their discovery obligations. April 13 Letter at 3.

         2. The April 23 Letter.

         On April 23, 2018, Jonathan Gdanski, an attorney for the Plaintiffs, sent the Court a letter detailing the Defendants' discovery issue. See April 23 Letter at 1 (“On April 2, 2018, Plaintiffs learned that potentially hundreds of thousands of Defendants' documents that are responsive to Plaintiffs' initial discovery requests, have not yet been produced.”). Mr. Gdanski further informs the Court that the Defendants have not yet responded to the April 13 Letter and that they are concerned about some of the Defendants' case investigation efforts. See April 23 Letter at 1-2.

         According to Mr. Gdanski, class representatives have reported that the Defendants' attorneys “have been contacting various individuals, including Plaintiffs' family members, old schoolmates, and business acquaintances to ask about Plaintiffs' background and smoking history.” April 23 Letter at 2 (“Their efforts border on harassment.”). Mr. Gdanski requests that the Court enter an order, similar to one that a state judge entered in an Engle progeny case, [2]requiring “anyone who represent[s] a tobacco-defendant who conducts an interview of any potential fact witness” to give “a business card and advise the person whom the interviewer represents” at the interview's inception. Letter at 2. Mr. Gdanski also requests that the order set “time, place and manner restrictions, ” and require the interviewer to provide a notice for the interviewee to sign, acknowledging that the interviewer had told the interviewee who he or she represented. Letter at 2.

         3. June 11 Letter.

         Mr. Monde responds to the April 13 Letter and the April 23 Letter. Letter from David Monde to Melissa Weiner at 1, dated June 11, 2018, filed July 24, 2018 (Doc. 199)(“June Letter”). Mr. Monde states that the Defendants' document production failure stems “from use of predictive coding rather than manual review” and that they have now produced all responsive, non-privileged documents. June Letter at 1. Mr. Monde apologizes for failing to discuss with the Plaintiffs in advance the Defendants' intent to use predictive coding, but notes that their initial, incomplete, production “was unintentional.” June Letter at 1-2. Mr. Monde details that the Defendants have taken the following steps since April 2, 2018, to “resolve the incomplete initial production and minimize the impact to the discovery schedule”: (i) the Defendants have prioritized supplemental production based on defense witnesses “already scheduled for depositions”; (ii) the Defendants offer short deposition postponements, if the Plaintiffs desire them; and (iii) “the documents in our rolling supplemental production were de-duped[3] to minimize your need to review multiple copies of the same document.” June Letter at 2. Mr. Monde also notes that all defense-witness depositions, with the exception of two, will be taken before the close of fact discovery, and that the two exceptions are unrelated to the discovery issues. See June Letter at 2. It follows, according to Mr. Monde, that, although the Plaintiffs have alleged prejudice, the Plaintiffs have not provided any prejudice specifics. See June Letter at 2. Mr. Monde signals the Defendants' willingness to accommodate additional depositions or to extend the deadline for Plaintiffs' expert reports. See June Letter at 2.

         Mr. Monde contends that the Defendants used predictive coding “on a subset of documents” to “meet the production schedule and because the ESI search terms generated a very large number” of “irrelevant and not responsive” documents. June Letter at 3. He notes that the manual review “corroborates” that the “ESI search terms” generated many irrelevant documents and that the Defendants initially refrained from producing “all of the documents that contained ESI search terms, ” because such a production would “have resulted in the classic document dump, with responsive material buried within vast quantities of irrelevant documents.” June Letter at 3. Mr. Monde notes that the Defendants did not use predictive coding for two subsets of discovery: (i) in instances where requests “were sufficiently narrow that we searched for specific documents in locations where we believed in good faith the responsive documents would reside”; and (ii) in some instances they did a manual review regardless of ESI search terms. June Letter at 3. Mr. Monde details that they used predictive coding on: (i) “Marketing Emails and Attachments”; (ii) “Trade-Marketing E-files”; and (iii) a set of 300, 000 miscellaneous documents. June Letter at 3-4. Mr. Monde contends that, although the Plaintiffs' raised, in October, 2017, “a generic concern” about the number of emails produced, the Defendants held a good-faith belief on December 22, 2017, that they had produced all non-privileged responsive documents. June Letter at 3. Mr. Monde attests that, once they identified the issue, they did a manual, human review of the three document categories upon which they previously executed a predictive coding review. See June Letter at 3.

         Mr. Monde also contends that their investigators had acted properly with fact witnesses. See June Letter at 4. He contends that, “[e]ven before you asked us to do it, our investigators presented to each potential witness a business card stating that the investigator works on behalf of Santa Fe Natural Tobacco Company.” June Letter at 4. Mr. Monde argues that a witness notice form, as the Plaintiffs request, would be “unnecessary and potentially confusing.” June Letter at 4. He also contends that all interviews have been already completed, unless additional persons are newly identified in depositions. See June Letter at 4. Accordingly, Mr. Monde represents that “we remain happy to address any witness or interview-specific concerns you may have.” June Letter at 4.

         4. The Status Conference.

         The Court held a status conference. See Tr. at 3:1 (Court). The Plaintiffs contended that, due to the Defendants' use of predictive coding, they did not timely receive discovery, and that, “even in light of Mr. Monde's letter, . . . we don't know how or why” the Defendants' initial discovery methodology failed to properly produce documents. Tr. at 7:1-3 (Schultz). According to the Plaintiffs,

in all candor, we don't know at this point, what went wrong, why it went wrong, whether it's been corrected, because we've not been privy to what they've done to correct it either. . . . So we just want to get to the bottom of it, Judge, and know whether there is an issue, and, if so, how to address it. The last thing we want is more delay in the case.

Tr. at 8:13-20 (Schultz). The Court asked what remedy the Plaintiffs seek. See Tr. at 9:2-3 (Court). The Plaintiffs asked for “a short corporate rep deposition and find out what happened.” Tr. at 9:9-10 (Schultz). The Plaintiffs noted that, after conducting the requested deposition, they may request additional relief based on what they learned. See Tr. at 10:17-21 (Schultz)(“Maybe we would find out ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.