Subject Matter Waiver Found In Disclosure of Investigator’s Findings

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.