Over a year ago Bear Republic Brewing sued Central City Brewing in a dispute over beers featuring RACER formative marks. A motion for a preliminary injunction was denied, and discovery ensued.
Ten days before the close of discovery Central City disclosed the existence of a private investigator who had done some “market research” about the subject beers as sold. Century City also produced photographs and video taken by him. Based on this discovery, Bear Republic issued subpoenas to the investigator and his company. Following the subpoenas, Central City tried to take it all back by amending its disclosures to remove his name and following up with an email between counsel saying that the investigator actually did not have discoverable information. Not surprisingly, Bear Republic refused to withdraw its subpoenas and Central City moved to quash claiming lack of timeliness and work product. Based on a detailed analysis of new Rule of Civ. Procedure 502, Magistrate Judge Collings allowed the deposition, with certain guidelines as to what could be covered.
First, he dispatched of the timeliness question by relaxing the discovery deadlines due to the late disclosure of the investigator by Central City.
Second he held that absent a waiver, discovery was limited to facts learned by the investigator in his investigation, rather than discussions with counsel or other items which may lead to discovery of trial strategies protected by the work-product doctrine. But after analyzing Rule 502, Judge Collings found that work-product had been waived as Central City intentionally (rather than inadvertently) disclosed the disputed materials. Further, based on Rule 502 Judge Collings found that the waiver went beyond the specific disclosed items into the whole subject matter of the materials, despite some language in the Advisory Committee Notes and Statements of Congressional Intent that might have added a fairness-type test.
The court found the waived subject matter to be:
all the circumstances involved with respect to this material, including how it came to be obtained, at whose direction it was obtained, and the manner in which it was obtained.
This includes any other photographs or videos taken by the investigator as well as any communications between the investigator and Central City regarding the content.
I imagine the ordered deposition was much more fun for Bear Republic’s counsel than for Central City’s.
Bear Republic Brewing Co. v. Central City Brewing Co., 10-10118-RBC (D. Mass. May 12, 2011)
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