1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 THE BETTER MEAT CO., No. 2:21-cv-02338-KJM-CKD 12 Plaintiff, ORDER 13 v. 14 | EMERGY, Inc. d/b/a MEATI FOODS, PAUL 15 | WRONSKY, and BOND CAPITAL MANAGEMENT LP., 16 Defendants. 17 18 For the reasons below, the court overrules Better Meat’s objections to the magistrate 19 | judge’s order denying Better Meat’s motion to compel. The court affirms the magistrate 20 | judge’s order at ECF No. 80. 21 | I. BACKGROUND 22 This motion stems from an ongoing action by plaintiff Better Meat Co. against defendants 23 | Emergy, Inc., Paul Vronsky and Bond Capital Management. This court has summarized the 24 | history behind this action in a previous order and incorporates that summary by reference here. 25 | See Prior Order (May 25, 2022), ECF No. 66. In response to Better Meat’s lawsuit, Emergy filed 26 | an anti-SLAPP motion seeking to strike Better Meat’s state-law claims, arguing Emergy’s 27 | communications are protected by California’s litigation privilege as a matter of law. See Mot. 28 | Strike, ECF No. 31. Better Meat requested discovery to oppose Emergy’s anti-SLAPP motion,
1 see generally Anti-SLAPP Disc. Appl., ECF No. 47, which this court granted in a limited 2 capacity “narrowly focused on the question whether Emergy had a good-faith intent of filing a 3 lawsuit at the time of the contested communications,” Prior Order (May 25, 2022) at 7. As 4 provided by local rule, the assigned magistrate judge has overseen discovery, including Better 5 Meat’s motion to compel further depositions and documents from Emergy. Mot. to Compel, ECF 6 No. 70. Specifically, Better Meat sought an order: 7 (1) compelling Emergy to produce documents responsive to Better 8 Meat’s Requests for Production, Set One, including privileged 9 communications; (2) compelling Defendants Bond and Vronsky to 10 produce documents responsive to Better Meat’s Requests for 11 Production, Set One; (3) compelling defendants to produce Vronsky, 12 Justin Whiteley, Noah Knauf, Joshua Posamentier, Nancy Xiao, 13 Lucas Mann, and Christina Ra for depositions regarding the matters 14 at issue in Emergy’s anti-SLAPP motion; and (4) compelling Emergy 15 to produce Tyler Huggins for a renewed deposition where he is 16 required to answer questions as to which he was instructed not to 17 answer or otherwise refused to answer at his July 1, 2022 deposition. 18 See MJ Order (July 28, 2022) at 4–5, ECF No. 80. The magistrate judge denied Better Meat’s 19 request in its entirety. See generally id. Better Meat filed objections to her order, ECF No. 84, 20 which this court struck as defective because they contained unauthorized redactions and 21 “sharefile links,” see Order to Strike, ECF No. 105. The parties have now refiled Better Meat’s 22 objections, Obj., ECF No. 126-21, which are before the court. 23 II. LEGAL STANDARD 24 Federal Rule of Civil Procedure 72(a) requires district judges consider timely objections 25 to nondispositive pretrial orders issued by magistrate judges and “modify or set aside any part of 26 the order that is clearly erroneous or is contrary to law.” Fed. R. Civ. P. 72(a); see also E.D. Cal. 27 L.R. 303(f); 28 U.S.C. § 636(b)(1)(A). The “contrary to law” standard permits independent 28 review of purely legal determinations by a magistrate judge. See, e.g., Brooks v. Motsenbocker 29 Advanced Developments, Inc., No. 07-0773, 2008 WL 3049983, at *1 (S.D. Cal. Aug. 1, 2008). 30 The “clearly erroneous” standard applies to the magistrate judge’s factual determinations and 31 discretionary decisions. Maisonville v. F2 Am., Inc., 902 F.2d 746, 748 (9th Cir. 1990) (citing 32 Zaldivar v. City of Los Angeles, 780 F.2d 823, 828 (9th Cir.1986)). “A finding is ‘clearly 1 erroneous’ when although there is evidence to support it, the reviewing [body] on the entire 2 evidence is left with the definite and firm conviction that a mistake has been committed.” 3 Concrete Pipe and Prods. v. Constr. Laborers Pension Trust, 508 U.S. 602, 622 (1993) (quoting 4 United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)) (alteration in original). 5 “[R]eview under the ‘clearly erroneous’ standard is significantly deferential . . . .” Id. at 623. 6 III. ANALYSIS 7 Better Meat objects to the magistrate judge’s denial of its motion to compel discovery in 8 three categories: (1) documents covered by attorney-client privilege, (2) depositions from Paul 9 Vronsky, Justin Whiteley, Noah Knauf, Joshua Posamentier, Nancy Xiao, Lucas Mann and 10 Christina Ra and (3) responsive documents otherwise withheld from Better Meat. See generally 11 Obj. This court will discuss each category in turn. 12 A. Production of Attorney-Client Privileged Information 13 The magistrate judge denied Better Meat’s motion to compel attorney-client protected 14 communications, including the “contents of [Emergy’s]privilege log” regarding “December 2021 15 communications and decision-making.” MJ Order at 6. The magistrate judge found the 16 privileged communications were not “put at issue” by Emergy’s anti-SLAPP motion and so the 17 attorney privilege is still intact. Id. at 5. Better Meat objects and argues the magistrate judge 18 misapplied the law in finding Emergy did not waive its privilege. Obj. at 10-15. 19 First, the magistrate judge found Emergy’s references to “the privilege log w[were] used 20 to demonstrate the timing of when Emergy developed its good faith intent to file suit against 21 Better Meat, which d[id] not implicate the substance of any attorney-client communications.” MJ 22 Order at 5. The magistrate judge’s classification of Emergy’s use of the privilege log is not a 23 “purely legal determination,” see, e.g., Brooks, 2008 WL 3049983, at *1, but rather a reasonable 24 determination made after examination of the relevant facts and briefings, Concrete Pipe and 25 Prods., 508 U.S. at 622. 26 Second, Better Meat contends the magistrate judge misapplied the law in finding Emergy 27 did not waive attorney privilege because it did not testify to the contents of any privileged 28 communications or rely on advice of counsel. Obj. at 13. Instead, Better Meat insists attorney 1 privilege is waived not only when a party “reproduce[s] the actual content of its 2 communications,” which Better Meat agrees Emergy did not do here, but also when “litigants [] 3 rely instead on one sided, selective, and self-serving descriptions” of their privileged 4 communications. Id. Thus, Better Meat argues Emergy’s descriptions of attorney 5 communications, such as its description of the content of the December 14, 2021 phone call 6 during which Emergy “authorized filing a complaint against” Better Meat, id. at 12, directly put 7 “at issue” conversations with its attorneys and were used “to obtain a substantive inference,” id. at 8 14. In support of this argument, Better Meat cites to multiple cases, including United States v. 9 Bilzerian, 926 F.2d 1285 (2d Cir. 1991). In Bilzerian, the court found a defendant criminally 10 charged with securities violations waived his attorney privilege.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 THE BETTER MEAT CO., No. 2:21-cv-02338-KJM-CKD 12 Plaintiff, ORDER 13 v. 14 | EMERGY, Inc. d/b/a MEATI FOODS, PAUL 15 | WRONSKY, and BOND CAPITAL MANAGEMENT LP., 16 Defendants. 17 18 For the reasons below, the court overrules Better Meat’s objections to the magistrate 19 | judge’s order denying Better Meat’s motion to compel. The court affirms the magistrate 20 | judge’s order at ECF No. 80. 21 | I. BACKGROUND 22 This motion stems from an ongoing action by plaintiff Better Meat Co. against defendants 23 | Emergy, Inc., Paul Vronsky and Bond Capital Management. This court has summarized the 24 | history behind this action in a previous order and incorporates that summary by reference here. 25 | See Prior Order (May 25, 2022), ECF No. 66. In response to Better Meat’s lawsuit, Emergy filed 26 | an anti-SLAPP motion seeking to strike Better Meat’s state-law claims, arguing Emergy’s 27 | communications are protected by California’s litigation privilege as a matter of law. See Mot. 28 | Strike, ECF No. 31. Better Meat requested discovery to oppose Emergy’s anti-SLAPP motion,
1 see generally Anti-SLAPP Disc. Appl., ECF No. 47, which this court granted in a limited 2 capacity “narrowly focused on the question whether Emergy had a good-faith intent of filing a 3 lawsuit at the time of the contested communications,” Prior Order (May 25, 2022) at 7. As 4 provided by local rule, the assigned magistrate judge has overseen discovery, including Better 5 Meat’s motion to compel further depositions and documents from Emergy. Mot. to Compel, ECF 6 No. 70. Specifically, Better Meat sought an order: 7 (1) compelling Emergy to produce documents responsive to Better 8 Meat’s Requests for Production, Set One, including privileged 9 communications; (2) compelling Defendants Bond and Vronsky to 10 produce documents responsive to Better Meat’s Requests for 11 Production, Set One; (3) compelling defendants to produce Vronsky, 12 Justin Whiteley, Noah Knauf, Joshua Posamentier, Nancy Xiao, 13 Lucas Mann, and Christina Ra for depositions regarding the matters 14 at issue in Emergy’s anti-SLAPP motion; and (4) compelling Emergy 15 to produce Tyler Huggins for a renewed deposition where he is 16 required to answer questions as to which he was instructed not to 17 answer or otherwise refused to answer at his July 1, 2022 deposition. 18 See MJ Order (July 28, 2022) at 4–5, ECF No. 80. The magistrate judge denied Better Meat’s 19 request in its entirety. See generally id. Better Meat filed objections to her order, ECF No. 84, 20 which this court struck as defective because they contained unauthorized redactions and 21 “sharefile links,” see Order to Strike, ECF No. 105. The parties have now refiled Better Meat’s 22 objections, Obj., ECF No. 126-21, which are before the court. 23 II. LEGAL STANDARD 24 Federal Rule of Civil Procedure 72(a) requires district judges consider timely objections 25 to nondispositive pretrial orders issued by magistrate judges and “modify or set aside any part of 26 the order that is clearly erroneous or is contrary to law.” Fed. R. Civ. P. 72(a); see also E.D. Cal. 27 L.R. 303(f); 28 U.S.C. § 636(b)(1)(A). The “contrary to law” standard permits independent 28 review of purely legal determinations by a magistrate judge. See, e.g., Brooks v. Motsenbocker 29 Advanced Developments, Inc., No. 07-0773, 2008 WL 3049983, at *1 (S.D. Cal. Aug. 1, 2008). 30 The “clearly erroneous” standard applies to the magistrate judge’s factual determinations and 31 discretionary decisions. Maisonville v. F2 Am., Inc., 902 F.2d 746, 748 (9th Cir. 1990) (citing 32 Zaldivar v. City of Los Angeles, 780 F.2d 823, 828 (9th Cir.1986)). “A finding is ‘clearly 1 erroneous’ when although there is evidence to support it, the reviewing [body] on the entire 2 evidence is left with the definite and firm conviction that a mistake has been committed.” 3 Concrete Pipe and Prods. v. Constr. Laborers Pension Trust, 508 U.S. 602, 622 (1993) (quoting 4 United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)) (alteration in original). 5 “[R]eview under the ‘clearly erroneous’ standard is significantly deferential . . . .” Id. at 623. 6 III. ANALYSIS 7 Better Meat objects to the magistrate judge’s denial of its motion to compel discovery in 8 three categories: (1) documents covered by attorney-client privilege, (2) depositions from Paul 9 Vronsky, Justin Whiteley, Noah Knauf, Joshua Posamentier, Nancy Xiao, Lucas Mann and 10 Christina Ra and (3) responsive documents otherwise withheld from Better Meat. See generally 11 Obj. This court will discuss each category in turn. 12 A. Production of Attorney-Client Privileged Information 13 The magistrate judge denied Better Meat’s motion to compel attorney-client protected 14 communications, including the “contents of [Emergy’s]privilege log” regarding “December 2021 15 communications and decision-making.” MJ Order at 6. The magistrate judge found the 16 privileged communications were not “put at issue” by Emergy’s anti-SLAPP motion and so the 17 attorney privilege is still intact. Id. at 5. Better Meat objects and argues the magistrate judge 18 misapplied the law in finding Emergy did not waive its privilege. Obj. at 10-15. 19 First, the magistrate judge found Emergy’s references to “the privilege log w[were] used 20 to demonstrate the timing of when Emergy developed its good faith intent to file suit against 21 Better Meat, which d[id] not implicate the substance of any attorney-client communications.” MJ 22 Order at 5. The magistrate judge’s classification of Emergy’s use of the privilege log is not a 23 “purely legal determination,” see, e.g., Brooks, 2008 WL 3049983, at *1, but rather a reasonable 24 determination made after examination of the relevant facts and briefings, Concrete Pipe and 25 Prods., 508 U.S. at 622. 26 Second, Better Meat contends the magistrate judge misapplied the law in finding Emergy 27 did not waive attorney privilege because it did not testify to the contents of any privileged 28 communications or rely on advice of counsel. Obj. at 13. Instead, Better Meat insists attorney 1 privilege is waived not only when a party “reproduce[s] the actual content of its 2 communications,” which Better Meat agrees Emergy did not do here, but also when “litigants [] 3 rely instead on one sided, selective, and self-serving descriptions” of their privileged 4 communications. Id. Thus, Better Meat argues Emergy’s descriptions of attorney 5 communications, such as its description of the content of the December 14, 2021 phone call 6 during which Emergy “authorized filing a complaint against” Better Meat, id. at 12, directly put 7 “at issue” conversations with its attorneys and were used “to obtain a substantive inference,” id. at 8 14. In support of this argument, Better Meat cites to multiple cases, including United States v. 9 Bilzerian, 926 F.2d 1285 (2d Cir. 1991). In Bilzerian, the court found a defendant criminally 10 charged with securities violations waived his attorney privilege. Specifically, the court found the 11 defendant put “his knowledge of the law and the basis for his understanding of what the law 12 required in issue” when he testified he believed his actions were legal; he argued he did not have 13 the requisite intent because he discussed the matter with his attorney. Id. at 1292. But Bilzerian 14 is not analogous to the case at hand. As the magistrate judge reasonably concluded, “Emergy’s 15 assertion of a good faith intent to sue does not rely on advice of counsel or the specific content of 16 claimed communications with counsel,” regardless of Emergy’s description. MJ Order at 7. 17 Better Meat also cites to Lenz v. Universal Music Corp. in arguing Emergy put its 18 motivations for filing suit at issue when it referenced privileged material, thus waiving the privilege. 19 No. 07-03783, 2010 WL 4789099 (N.D. Cal. Nov. 17, 2010); Obj, at 15. In Lenz, a plaintiff 20 communicated with multiple third parties regarding her discussions with attorneys and her motives 21 for bringing the action. Id. at *2. However, Lenz is distinguishable because Emergy did not discuss 22 its attorney communications with any third party, nor did it disclose to third parties its attorney 23 client communications when sharing its motives for filing suit. Rather, the magistrate judge 24 reached the reasonable conclusion Emergy relied on its production logs to establish the timeline 25 relevant to its intention to file. MJ Order. at 6. The magistrate judge also correctly stated and 26 applied the law in finding Emergy did not take the “affirmative step in the litigation to place the 27 advice of the attorney in issue” so as to waive privilege regarding those communications. Planet 28 Aid, Inc. v. Reveal, Ctr. for Investigative Reporting, No. 17-03695, 2018 WL 6079617, at *2 (N.D. 1 Cal. Nov. 21, 2018); MJ Order at 7. Because the magistrate judge’s order was not clearly erroneous, 2 this court overrules Better Meat’s objections and affirms the magistrate judge’s order. 3 B. Additional Depositions 4 Better Meat asks this court to compel depositions of Paul Vronsky, Justin Whiteley, Noah 5 Knauf, Joshua Posamentier, Nancy Xiao, Lucas Mann and Christina Ra. This court’s initial 6 discovery order allowed only a single deposition of Emergy CEO Dr. Tyler Huggins. Prior Order 7 (May 25, 2022) at 7. Better Meat agrees the magistrate judge did not have the authority to 8 expand this court’s discovery order, but now asks this court to do so by granting additional 9 depositions, notices for which Better Meat already has formally served. Obj. at 16. Better Meat 10 claims these depositions are necessary because Dr. Huggins was unable to answer questions 11 regarding documents on which Emergy relies, so Better Meat needs additional depositions “to fill 12 these gaps and obtain meaningful examination” of the issues. Obj. at 16. For example, Better 13 Meat argues Dr. Huggins did not or could not share information on “the reason and purpose for 14 Paul Vronsky’s email to Steve Jurvetson” regarding Emergy’s impending suit against Better 15 Meat; nor did he recollect information reflected in text messages from December 2021. Id. at 16– 16 17. Filling these kinds of gaps, Better Meat claims, is essential to Better Meat’s argument 17 opposing Emergy’s Anti-SLAPP motion, so Better Meat is entitled to further depositions under 18 Federal Rule of Civil Procedure Rule 56. Id.; Qualls By & Through Qualls v. Blue Cross of 19 California, Inc., 22 F.3d 839, 844 (9th Cir. 1994) (“We will only find that the district court 20 abused its discretion if . . . the movant can show how allowing additional discovery would have 21 precluded summary judgment.”) (emphasis in original). 22 Despite Better Meat’s representations, it has not shown such a broad expansion of 23 discovery is necessary, nor has it shown additional depositions would necessarily preclude the 24 anti-SLAPP motion. Depositions are not a fail-safe method for a party to obtain any and all 25 information it wishes to learn. Individuals commonly forget or do not provide satisfactory 26 answers during questioning. Unsatisfactory depositions alone are not reason enough for this court 27 to further delay the litigation in this case, which has been on hold for close to a year. While the 28 court does not dispute the potential relevance of the proposed depositions, this relevance also 1 existed ten months ago when the court first rejected Better Meat’s request to engage in “full 2 discovery.” Prior Order (May 25, 2022) at 7; see also May 6, 2022 Hr’g Mins., ECF No. 65. 3 While Better Meat argues it would be “deprived of essential evidence on a narrow interpretation 4 of a procedural requirement,” if it is unable to depose these individuals, it does not explain how 5 compelling each individual would further the narrow purpose of discovery. Obj. at 17. Rather, 6 Better Meat’s broad request to depose seven individuals appears akin to a fishing expedition to 7 lure out potentially helpful information. Given the record here, granting Better Meat’s request to 8 compel additional depositions would lead to an abuse of discovery. See Roberts v. Clark County. 9 Sch. Dist., 312 F.R.D. 594, 602 (D. Nev. 2016) (holding trial courts have “broad discretion to 10 limit and tailor discovery to avoid abuse and overuse”). Thus, the magistrate judge’s denial of 11 Better Meat’s motion to compel was not clearly erroneous. The court affirms the magistrate 12 judge’s order and denies Better Meat’s request to compel additional depositions. 13 C. Production of Responsive Documents 14 Better Meat also objects to the magistrate judge’s denial of Better Meat’s motion to compel 15 production of additional “documents responsive to RFP No.4,” namely documents relating to 16 Emergy’s ‘good faith belief’ in the inventorship and trade secret claims it intended to file in good 17 faith.” Obj. at 18. Emergy initially declined to produce these documents because the request fell 18 “outside the narrowly tailored discovery at issue.” MJ Order at 11. The magistrate judge agreed, 19 finding discovery “focused on the question whether Emergy had a good-faith intent of filing a 20 lawsuit at the time of communications” while Better Meat’s request focused on Emergy’s good 21 faith basis for their claims. Id. Emergy argues this distinction is not applicable here because 22 Emergy could not have had a good faith intent to sue if it did not have a good faith basis for its 23 claims. Obj. at 18. However, as the magistrate judge discussed, California’s litigation privilege, 24 raised by Emergy in its Anti-SLAPP motion, makes this very distinction. MJ Order at 11; see also 25 Action Apartment Assn., Inc. v. City of Santa Monica, 41 Cal. 4th 1232, 1251 (2007) (noting the 26 distinction). Thus, the magistrate judge’s characterization was not “contrary to law.” See Brooks, 27 2008 WL 3049983, at *1. This court affirms the magistrate judge’s order and denies Better 28 Meat’s request to compel production of responsive documents. 1 IV. CONCLUSION 2 After reviewing the magistrate judge’s order denying Better Meat’s motion to compel, this 3 court finds the order is not contrary to law or clearly erroneous. The court overrules Better 4 Meat’s objections and affirms the magistrate judge’s ruling at ECF No. 80. 5 This order resolves ECF No. 126-1. 6 IT IS SO ORDERED. 7 DATED: April 13, 2023.