Case 2:19-cv-00463-RAJ-LRL Document 225 Filed 08/28/20 Page 1 of 8 PageID# 2803
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`UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF VIRGINIA
`Norfolk Division
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`IN RE PEANUT FARMERS
`ANTITRUST LITIGATION
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`Case No. 2:19-cv-00463-RAJ-LRL
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`Honorable Raymond A. Jackson
`Honorable Lawrence R. Leonard
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`PLAINTIFFS’ MEMORANDUM OF LAW IN SUPPORT OF MOTION TO COMPEL
`BIRDSONG CORPORATION TO PRODUCE CERTAIN DOCUMENTS
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`Plaintiffs, by counsel and pursuant to Rule 37 of the Federal Rules of Civil Procedure
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`and Local Rule 37, state the following in support of their Motion to Compel Birdsong to Produce
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`Certain Documents (the “Motion”):
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`I.
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`Summary
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`This dispute is about Defendant Birdsong Corporation’s (“Birdsong”) claim of attorney-
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`client privilege regarding emails between non-attorney employees discussing a company antitrust
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`presentation and related documents. Birdsong claims this privilege even though the nature of the
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`information is not entitled to protection. The withheld documents are communications between
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`non-attorney employees discussing Birdsong’s policies regarding antitrust and price fixing
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`without regard to any existing legal dispute, as well as handout materials distributed at the
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`presentation summarizing general antitrust compliance guidance. Birdsong believes it can
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`withhold these documents because the underlying antitrust guidance presentation was generated
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`by an attorney. This expansive view of the attorney-client privilege urged by Birdsong is not
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`supported by any authority.
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`Case 2:19-cv-00463-RAJ-LRL Document 225 Filed 08/28/20 Page 2 of 8 PageID# 2804
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` II. Factual Background
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`Plaintiffs allege a conspiracy by Defendants to fix the price of Runner peanuts paid to
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`peanut farmers, which began on an unknown date, but which injured Plaintiffs from at least as
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`early as January 1, 2014, and continued at least through the filing of the Class Action Complaint
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`(ECF No. 1) on September 5, 2019. SAC ¶ 100. Plaintiffs also allege that peanut prices began a
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`period of volatility around 2011 that extended into 2013 and that precipitated Defendants’ desire
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`“to stabilize and depress Runner prices.” Id. at ¶ 93.
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`On August 12, 2020, Birdsong produced a supplemental privilege log in connection with
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`its response to Plaintiffs’ Request for Production of Documents. The supplement was in
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`response to an earlier dispute over Birdsong’s deficient privilege log. Among the documents
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`withheld by Birdsong were certain emails and attachments thereto (privilege log document ID
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`nos. DOC-0000221867, DOC-0000221867-0001, DOC-0000221867-0002, DOC-000438279,
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`DOC-0000438279-0001, DOC-0000438279-0002, DOC-0001546902-0001, DOC-0001475409-
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`0001), described as containing “legal advice from Tom Craddock on anti trust [sic], price fixing,
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`and confidentiality issues” and “legal advice from Tom Craddock on anti-competition issues.”
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`The basis for withholding these documents was the attorney-client privilege.
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`III. Argument
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`A.
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`The withheld documents are not protected by the attorney-client privilege.
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`The Fourth Circuit has adopted a narrow interpretation of attorney-client privilege,
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`holding “the privilege applies only when the person claiming the privilege has as a client
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`consulted an attorney for the purpose of securing a legal opinion or services.” In re Grand Jury
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`Proceedings, 727 F.2d 1352, 1355-56 (4th Cir. 1984) (emphasis added). While communications
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`between a company’s attorney and its employees may be entitled to protection by the attorney-
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`client privilege, the communication will lose that protection where the advice is disseminated
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`within the company generally. Communications can only retain their privileged status “if the
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`information is relayed from a non-lawyer employee or officer to other employees or officers of
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`the corporation on a need to know basis.” F.C. Cycles Int’l, Inc. v. Fila Sport, S.p.A., 184 F.R.D.
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`64, 71 (D. Md. 1998) (citing Andritz Sprout-Bauer, Inc. v. Beazer East, Inc., 174 F.R.D. 609,
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`633 (M.D. Pa. 1997)).
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`The genesis of the disputed documents is an oral presentation by attorney Tom Craddock
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`on antitrust and price fixing compliance in 2017. Attendees apparently took notes on the
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`presentation. These notes were then circulated among no less than thirteen Birdsong employees.
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`Further, Birdsong has not claimed that the presentation was in response to specific requests for
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`legal advice on a pending matter. Instead, the presentation appears to be an attempt to guide the
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`company’s compliance with the law. These types of communications do not fit within the
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`narrow confines of the attorney-client privilege outlined by the Fourth Circuit.
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`The few courts that have addressed the privileged nature of internal antitrust policies
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`have concluded that they are not entitled to the protection of the attorney-client privilege. In In
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`re Sulfuric Acid Antitrust Litig., 235 F.R.D. 407 (N.D. Ill. 2006), after defendants inadvertently
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`produced its antitrust compliance manuals, it claimed the manuals were privileged and exempt
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`from discovery. Id. at 412. Specifically, defendants argued the manuals were privileged because
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`defendants’ counsel prepared them, in response to a request for legal advice, to assist employees
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`in complying with U.S. and Canadian competition laws. Id. at 430. Plaintiffs argued they were
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`not privileged because they did not respond to “specific factual requests for legal advice.” Id.
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` The court declined to extend privilege, stating that manuals that do not reveal client confidences
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`or constitute legal advice fall “outside the scope of the attorney-client privilege, whether viewed
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`broadly or narrowly.” Id. at 430. The court left open the possibility that certain hypothetical
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`scenarios addressed in the manuals constituted legal advice and allowed further briefing. In its
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`supplemental decision addressing the hypothetical scenarios, the court explained that privilege
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`was still inappropriate because the hypotheticals were merely “instructional devices, not
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`responses to requests for legal advice.” In re Sulfuric Acid Antitrust Litig. 432 F. Supp. 2d 794,
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`796-97 (N.D. Ill. 2006).
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`The court reached a similar result in In re Domestic Drywall Antitrust Litig., No. 13-MD-
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`2437, 2014 WL 5090032 (E.D. Pa. Oct. 9, 2014). There, plaintiff sought “[a]ll Documents
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`relating to [defendant’s] policies, practices or guidelines concerning a) the United States antitrust
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`laws, b) communications with competitors relating to price, output or supply, or c) any antitrust
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`training provided to . . . officers and employees.” Id. at *1. Defendant refused to produce its
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`antitrust compliance manual, asserting attorney-client privilege. Id. Plaintiff moved to compel.
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`Id. Plaintiff argued the policy was (1) not privileged because it contained general policies,
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`instead of legal advice regarding a specific action, and (2) was not a confidential communication
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`because it was widely distributed within the company. Id. Defendant countered that the policy
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`was privileged because it met that jurisdiction’s elements of privilege:(1) a communication, (2)
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`between privileged persons—lawyers and company employees, (3) maintained in confidence—
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`defendant never allowed disclosure outside the company, (4) for the purpose of providing legal
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`advice to employees whose work implicates antitrust risk. Id. The court granted plaintiff’s
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`motion because the subject document constituted the company’s general policy. Id. at *5.
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`Case 2:19-cv-00463-RAJ-LRL Document 225 Filed 08/28/20 Page 5 of 8 PageID# 2807
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`Birdsong’s expansive interpretation of the attorney-client privilege finds no support in the
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`law. Birdsong employees’ discussions of general company guidance and presentation cannot be
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`withheld from Plaintiffs simply because an attorney was involved in the creation of that guidance
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`and presentation. Were this the case, large swaths of communication could be shielded from
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`discovery simply by alleging the involvement by an attorney in the subject matter at some point
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`in the past. In the absence of a specific request for legal advice which reveals client confidences,
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`Birdsong’s position fails.
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`B.
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`The parties have attempted in good faith to resolve this dispute without court intervention
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`On August 27, 2020, counsel conferred by telephone to discuss multiple withheld
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`documents on Birdsong’s supplemental privilege log. The conference was largely successful in
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`that many of the disagreements over privilege were resolved and the need for court intervention
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`was significantly narrowed. The parties were not, however, able to resolve the dispute over the
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`emails and documents which are the subject of this Motion. The discussion was memorialized in
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`an email from Plaintiffs’ counsel to Birdsong’s counsel and is attached hereto as Exhibit A. The
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`Motion includes a certification of this good faith effort pursuant to Local Rule 37(E).
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`IV. Conclusion
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`Plaintiffs respectfully request that the Court grant Plaintiffs’ Motion and order Birdsong
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`to produce the withheld documents identified in Birdsong’s privilege log as document ID nos.
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`DOC-0000221867, DOC-0000221867-0001, DOC-0000221867-0002, DOC-000438279, DOC-
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`0000438279-0001, DOC-0000438279-0002, DOC-0001546902-0001, and DOC-0001475409-
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`0001.
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`Case 2:19-cv-00463-RAJ-LRL Document 225 Filed 08/28/20 Page 6 of 8 PageID# 2808
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`Dated: August 28, 2020
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`Respectfully submitted,
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`By /s/ Kevin J. Funk
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`Wyatt B. Durrette, Jr., Esquire (VSB No. 04719)
`Kevin J. Funk, Esquire (VSB No. 65465)
`DURRETTE, ARKEMA, GERSON & GILL PC
`1111 East Main Street, 16th Floor
`Richmond, Virginia 23219
`Tel:
`(804) 775-6900
`Fax:
`(804) 775-6911
`wdurrette@dagglaw.com
`kfunk@dagglaw.com
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`Counsel for Plaintiffs and Interim Liaison
`Counsel for the Proposed Class
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`W. Joseph Bruckner (MN No. 0147758)
`(admitted pro hac vice)
`Brian D. Clark (MN No. 00390069)
`(admitted pro hac vice)
`Stephanie A. Chen (MN No. 0400032)
`(admitted pro hac vice)
`LOCKRIDGE GRINDAL NAUEN P.L.L.P.
`100 Washington Avenue South, Suite 2200
`Minneapolis, Minnesota 55401
`Tel:
`(612) 339-6900
`Fax:
`(612) 339-0981
`wjbruckner@locklaw.com
`bdclark@locklaw.com
`sachen@locklaw.com
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`Kimberly A. Justice (PA No. 85124)
`(admitted pro hac vice)
`Jonathan M. Jagher (PA No. 204721)
`(admitted pro hac vice)
`FREED KANNER LONDON & MILLEN, LLC
`923 Fayette Street
`Conshohocken, Pennsylvania 19428
`Tel:
`(610) 234-6487
`Fax:
`(224) 632-4521
`kjustice@fklmlaw.com
`jjagher@fklmlaw.com
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`Case 2:19-cv-00463-RAJ-LRL Document 225 Filed 08/28/20 Page 7 of 8 PageID# 2809
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`Douglas A. Millen (IL No. 6226978)
`(admitted pro hac vice)
`Michael E. Moskovitz (IL No. 6237728)
`(admitted pro hac vice)
`Robert J. Wozniak (IL No. 6288799)
`(admitted pro hac vice)
`Brian M. Hogan (IL No. 6286419)
`(admitted pro hac vice)
`FREED KANNER LONDON & MILLEN, LLC
`2201 Waukegan Road, #130
`Bannockburn, Illinois 60015
`Tel:
`(224) 632-4500
`Fax:
`(224) 632-4521
`dmillen@fklmlaw.com
`mmoskovitz@fklmlaw.com
`rwozniak@fklmlaw.com
`bhogan@fklmlaw.com
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`Counsel for Plaintiffs and Interim Co-Lead
`Counsel for the Proposed Class
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`Jeffrey J. Corrigan (NY No. 2372654)
`(admitted pro hac vice)
`SPECTOR ROSEMAN & KODROFF, P.C.
`Two Commerce Square
`2001 Market Street, Suite 3420
`Philadelphia, PA 19103
`Telephone: (215) 496-0300
`Fax: (215) 496-6611
`jcorrigan@srkattorneys.com
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`Additional Counsel for Plaintiffs and the
`Proposed Class
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`Case 2:19-cv-00463-RAJ-LRL Document 225 Filed 08/28/20 Page 8 of 8 PageID# 2810
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`CERTIFICATE OF SERVICE
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`I hereby certify that on August 28, 2020, I electronically filed the foregoing with the
`Clerk of the Court using the CM/ECF system, which will automatically e-mail notification of
`such filing to all counsel of record.
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`To the best of my knowledge, there are no other attorneys or parties who require service
`by U.S. Mail.
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` /s/ Kevin J. Funk
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`Wyatt B. Durrette, Jr., Esquire (VSB No. 04719)
`DURRETTE, ARKEMA, GERSON & GILL PC
`1111 East Main Street, 16th Floor
`Richmond, Virginia 23219
`Tel:
`(804) 775-6900
`Fax:
`(804) 775-6911
`kfunk@dagglaw.com
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