*1 Before the Court's Special Master (“CSM”) is Blue Buffalo's renewed and clarified motion “for information regarding Defendants’ attorney fee invoices from” (a) the Nestlé Purina action, (b) the consolidated MDL of consumer class actions and (c) the United States Government's investigation of the alleged adulteration and mislabeling scheme.[1] In this Order, I will use Blue Buffalo's term “Collateral Proceedings” when referring to these three classes of matters. This request is related to a similar Blue Buffalo request that I decided in Order No. 6.[2]

To avoid confusion and assure that I am addressing squarely the issue now raised by Blue Buffalo and using the term “Collateral Proceedings” as Blue Buffalo uses that term, “Collateral Proceedings” as used herein addresses “only those fees Defendants incurred from May 2014 until [Wilbur-Ellis and Diversified] were named Defendants in this recovery action in May 2015.” Thus, “Collateral Proceedings” does not include the portion of this case in which Blue Buffalo seeks to recover the fees and costs it incurred in the Collateral Proceedings.[3]

I have fully and carefully considered the submissions of the parties and arguments of counsel relating to this motion, to Order No. 6 and to related matters. For the reasons set forth below, I DENY WITHOUT PREJUDICE Blue Buffalo's motion.

BACKGROUND

I believe it is important to lay out in some detail the bases for Blue Buffalo's claim to Defendants’ Collateral Proceedings billing records and the Defendants’ counterarguments.

Blue Buffalo claims that legal fees incurred by Defendants in the Collateral Proceedings are discoverable for three reasons: (1) they “explain how and why Blue Buffalo came to incur its own attorney fees and costs in the Collateral Proceedings,” (2) they “are necessary to impeach Defendants’ claims that they were not acting knowingly, and in Wilbur-Ellis's case, that it cannot identify who was knowingly involved in the misconduct,” and (3) they “will inform a jury's assessment of the reasonableness and necessity of Blue Buffalo's own fees because all three parties performed similar work related to the Collateral Proceedings....”[4]

*2 Blue Buffalo argues that “Defendants’ fees help demonstrate causation for Blue Buffalo's own fees from the Collateral Proceedings....” In essence, instead of acknowledging their misdeeds, Defendants forced Blue Buffalo to discover and prove them. Blue Buffalo claims that it should be allowed to prove that the vast sums spent investigating the 2,500 adulterated shipments and litigating the Collateral Proceedings would have been substantially less vast had Defendants acknowledged the scheme instead of denying it. “The extent of that active concealment, including the monies Defendants paid their lawyers, is something Blue Buffalo is entitled to relay to the jury. The fees Defendants paid their lawyers also support the willfulness of Defendants’ conduct and are relevant to Blue Buffalo's request for punitive damages.”[5]

In sum, Blue Buffalo claims that Defendants’ fees may provide probative evidence that will aid in explaining and validating the amount of work its own attorneys were required to perform – work that would have been unnecessary had Wilbur-Ellis and its attorneys “come clean” instead of pursuing a campaign of avoidance and obfuscation. Also, the amounts spent avoiding and obfuscating in lieu of admitting and acknowledging is evidence a jury may consider in awarding punitive damages.

Blue Buffalo also claims Wilbur-Ellis's counsels’ bills will help it belie any claim that Wilbur-Ellis cannot determine whether any of its employees knowingly sold adulterated and mislabeled products.

More generally, Blue Buffalo claims its challenge to Defendants’ denial of intentional misconduct will be aided by Defendants’ counsels’ billing records “detailing what they did and how much they spent to conceal Defendants’ illegal scheme...”[7]

Blue Buffalo further maintains that Defendants’ counsels’ billing records are discoverable proof that the fees it paid (and now claims as damages in the recovery action) were “reasonable” because one way to prove reasonableness is with “evidence that attorneys charge similar rates, and spend similar time, performing ‘comparable’ or ‘similar’ work.” Blue Buffalo reasons that after Nestlé Purina filed suit and in the government investigation, Defendants investigated their supply chain, collected and reviewed shipping documents, product specifications and communications, interviewed employees and undertook the same activities that Blue Buffalo undertook. “Because the parties performed the same type of work in response to the same type of requests during the Collateral Proceedings, there can be no argument that Defendants’ fees are ‘apples to oranges’ when compared to Blue Buffalo's fees from those proceedings. * * * [D]enying Blue Buffalo this evidence would handicap Blue Buffalo's proofs before the jury and result in unfair prejudice.”[8]

Blue Buffalo argues that if Defendants are deemed to be its “opponents” in the Collateral Proceedings, “the Eighth Circuit and the only relevant cases from the Eastern District of Missouri—have concluded an opponent's fees are relevant when assessing the reasonableness of attorney fees.”[9]

*3 Blue Buffalo seeks alternative relief in the form of a summary of information such as Defendants’ counsels’ hourly rates, total hours, monthly fees, hours devoted to certain issues, etc.[10]

In its August 4, 2021 response, Wilbur-Ellis's argues that Blue Buffalo's request is a “second bite” at a request I previously rejected in Order No. 6. Wilbur-Ellis urges me to deny Blue Buffalo's motion “out-of-hand” but offers some specific arguments “to the extent that [I] choose to revisit old arguments that Blue re-uses in its July 23 submission.”

Wilbur-Ellis again maintains that “Burks v. Siemens Energy & Automation, Inc., 215 F.3d 880 (8th Cir. 2000), represents the ‘controlling authority for this issue’ in the Eighth Circuit, and that decision rejects Blue Buffalo's theory of relevance even for parties litigating the exact same claims.”[11] Wilbur-Ellis urges me to ignore David v. Berryhill[12] because unlike this request for discovery of another party's counsels’ fee information, that case

Wilbur-Ellis also disagrees with any suggestion that in the Collateral Proceedings Blue Buffalo's and Defendants’ counsel were performing “similar” work.

Wilbur-Ellis maintains that “Blue Buffalo can argue all it likes that Wilbur-Ellis's litigation conduct had some impact on the amount of attorneys’ fees it was allegedly forced to incur” but that “it is completely irrelevant to Blue Buffalo's argument how much Wilbur-Ellis spent on its attorneys who litigated these matters, much less how those attorneys described their work in their time entries.”[15]

Diversified's response to Blue Buffalo's motion tracks Wilbur-Ellis's and offers that “post-judgment discovery related to attorney fee reasonableness is rare. Zhang v. GC Services, LP, 537 F. Supp.2d 805 (E.D. Va. 2008) (surveying cases). Support for the pre-judgment fee discovery Blue Buffalo seeks here is nonexistent.”[16]

Diversified offered a list of differences between its situation and conduct and Blue Buffalo's, saying that it (Diversified):

DISCUSSION

First and foremost, as discussed in more detail below, I disagree with Blue Buffalo's suggestion that it and the Defendants’ counsel were all performing (or should have been performing) “similar work” in the Collateral Proceedings.

I also disagree with the suggestion that the amount of time and money devoted to an investigation is an indication (much less an admission) of fault, wrongdoing or culpability of the party conducting the investigation. Under our system of justice, the vigor and extent of a party's defense is not evidence of that party's guilt.

*5 And I disagree strongly with the logic suggesting that the (presumptively) significant amount Wilbur-Ellis spent investigating the alleged mislabeling scheme somehow proves or even implies that something sinister or harmful to Wilbur-Ellis's case must have been unearthed.

Blue Buffalo also makes the more nuanced point that while it and Defendants are now adversaries in the recovery action, they were all (at least Blue-Buffalo and Wilbur-Ellis) facing the same common adversary in the Collateral Proceedings.

But while Blue Buffalo and Wilbur-Ellis may not have been aligned as adversaries in the Collateral Proceeding pleadings until May 19, 2015,[20] they were still, qualitatively and quantitively, in very different positions. Wilbur-Ellis was not even mentioned in Nestlé Purina's first three Complaints.[21] And while the government's investigation certainly impacted Blue Buffalo and both Defendants, there is simply no basis to claim the implications of that investigation were the same for both sides or that Defendants’ discovery obligations (or the burdens those obligations placed on Defendants) in those investigations were comparable to Blue Buffalo's. Unlike adversaries litigating the contract they both signed or arguing cross motions for summary judgment on an issue they both face, Blue Buffalo (the then-nascent victim) and Wilbur-Ellis (the then-nascent target) were dealing with the government investigation from two entirely different positions. Again, I do not see how fees incurred by Defendants can shed any useful light on the need for, necessity or reasonableness of fees incurred by Blue Buffalo. I disagree with any suggestion that the amount of legal fees spent by the target of a massive grand jury investigation sheds any illuminating light on the reasonableness of the legal fees spent by the alleged victim of that target's alleged crime.

I do not disagree with Blue Buffalo's suggestion that the trajectory of this litigation might have been dramatically different had the Defendants admitted in or before May 2014 that all 2,500 adulterated shipments were all mislabeled and adulterated. Nor do I disagree with its suggestion that the parties to this litigation might have spent substantially less money had such an admission been made. There's no arguing that a plaintiff's burdens are lifted/lightened when a defendant admits liability or confesses some of the elements of plaintiff's claim at the outset of a lawsuit. But that fact does not support the conclusion that Blue Buffalo is therefore entitled to know how much time and money Defendants spent in lieu of admitting liability.

*6 To be clear, I express no opinion as to whether this claim (that Blue Buffalo “would not have spent as much (or potentially any) time or money investigating Purina's various factual allegations”[22]) is valid or whether that claim will be appropriate for a jury to consider. And I express no opinion as to whether Blue Buffalo is entitled to “recovery action” fees or “Collateral Proceeding” fees – or both. But I disagree with the proposition that Defendants’ billing records in the Collateral Proceedings offer probative evidence supporting either of such claims. As I stated in Order No. 6: “Either the Court or a jury will decide whether the Fees as Damages sought by Blue Buffalo are reasonable and whether they were incurred due to Wilbur-Ellis's or Diversified's conduct. [But t]he time entries of Wilbur-Ellis's and Diversified's counsel in this case (where Blue Buffalo seeks to recover fees spent defending the Nestlé Purina and class action claims) offer nothing of value to a finder of fact (or law) attempting to decide whether Blue Buffalo's counsels’ Fees as Damages were reasonable or incurred due to the conduct of Wilbur-Ellis or Diversified.”[23]

And I also still believe that “[i]f billing records revealed a party's counsel's work product and strategies, a compelling case could be made that those records should be redacted to protect that party's counsel's work product and strategies.”[24]

Blue Buffalo also makes this claim:

Again, I express no opinion as to whether Defendants’ attorneys did or did not advance “dubious theories and positions, including factually inaccurate spreadsheets, further concealing the true ingredients shipped to Blue Buffalo,” and recognize that Blue Buffalo may indeed be entitled (and permitted) to “tell the jury ... why Blue Buffalo was forced to expend the sums that it did to uncover the truth.” But I disagree that (in this example) the amount of money Defendants might have spent advancing dubious (or even sanction-worthy) positions from May 2014 to May 2015 can shed any helpful light on “why Blue Buffalo was forced to expend the sums that it did to uncover the truth ....”

Diversified's inventory (items a-n listed above) provides a compelling reminder of the significant differences between Blue Buffalo's positions and actions and Diversified's positions and actions[26] – making Diversified's counsel's billing documents (from May 2014 through May 2015) irrelevant to the question of whether Blue Buffalo's counsels’ Collateral Proceedings legal fees (a) were reasonable, (b) were incurred due to Defendants’ wrongful conduct or (c) are evidence of Defendants’ culpability or punishable misconduct.

Thus, I stand by the observation “that Blue Buffalo's jump from ‘litigation tactics are discoverable’ to ‘therefore, Defendants’ legal bills and billing records must be turned over to Blue Buffalo,’ is a syllogistic leap too far.”[27]

And I still believe that the Eighth Circuit's 2000 decision in Burks v. Siemens Energy & Automation, Inc.[28] is the controlling authority for this issue.[29]

Notwithstanding the foregoing, to assure that the parties and the Court have benchmark “reasonableness” information available to them, I will Order the Defendants to provide certain very limited information set forth below.

*7 IT IS THEREFORE HEREBY ORDERED that Blue Buffalo's motion “for information regarding Defendants’ attorney fee invoices” is DENIED WITHOUT PREJUDICE except that Defendants shall each provide Blue Buffalo with the names and hourly billing rates of their four (4) outside counsel in this litigation with the highest hourly rates between May 1, 2014 and May 31, 2015.

The parties are reminded of their right to object to this Order under Fed. R. Civ. P. 53(f) and the 7-day deadline set for objection in Paragraph 7 of Judge Sippel's May 1, 2020 Order appointing the CSM.[30]

This motion was made in a July 23, 2021 correspondence to the CSM from Blue Buffalo's counsel, S. Jamal Faleel. Wilbur-Ellis's counsel, Ryan M. Buschell and Diversified's counsel Matthew S. McBride submitted separate August 4, 2021 correspondence responding to this request. These communications were consistent with the CSM's requested motion practice process. Quoted statements of counsel without citation herein are taken from these communications.

Dkt. No. 1604.

Blue Buffalo distinguished its fee claim in the “recovery action” from its claim to fees in the “Collateral Proceedings” thusly: “Blue Buffalo is seeking reimbursement for the costs it incurred in the Collateral Proceedings resulting from Defendants’ misconduct. Specifically, Blue Buffalo is seeking reimbursement for the $64 million it paid to settle the Purina and class action lawsuits. And it is also seeking the attorney fees and costs it incurred in defending those cases, as well as the fees and costs it incurred responding to the Government's investigation. If Blue Buffalo succeeds on certain claims, Blue Buffalo will also be entitled to recover the fees and costs it expended in this recovery action. But this present motion addresses only Blue Buffalo's request for Defendants’ attorney fees from the Collateral Proceedings.” (July 23, 2021 correspondence to the CSM from Blue Buffalo's counsel, S. Jamal Faleel at p. 2)

July 23, 2021 correspondence to the CSM from Blue Buffalo's counsel, S. Jamal Faleel at pp. 1-2.

Id. at p. 3.

Id. at p. 4.

Id.

Id. at p. 6.

Id. at p. 6-7, citing Craik v. Minnesota State Univ. Bd., 738 F.2d 348, 349 (8th Cir. 1984), Dependahl v. Falstaff Brewing Corp., 653 F.2d 1208, 1220 (8th Cir. 1981), Tussey v. ABB, Inc., 746 F.3d 327, 340-41 (8th Cir. 2014), affirming No. 06-cv-04305, 2012 WL 5386033, at *4 (W.D. Mo. Nov. 2, 2012), Brown v. Miss Elaine, Inc., No. 01-cv-1925, 2003 WL 21517919, at *1 (E.D. Mo. Apr. 17, 2003) and Gilbert v. Monsanto, No. 95-cv-1180 (E.D. Mo. Mar. 27, 2001).

Id. at p. 7 (“See, e.g., Henson v. Columbus Bank & Tr., 770 F.2d 1566, 1575 (11th Cir. 1985) (limiting discovery to ‘hours expended and fees paid’); Mora v. Allsup's Convenience Stores, Inc., 2011 WL 13286042, at *3 (N.D. Tex. Mar. 11, 2011) (granting discovery regarding hourly rates); Clyma v. Sunoco, Inc., 2007 WL 9782780, at *3 (N.D. Okla. July 26, 2007) (ordering production of total hours spent while rejecting request for detailed time entries); Murray v. Stuckey's Inc., 153 F.R.D. 151, 152 (N.D. Iowa 1993) (‘[O]nly the hours expended on issues of the complaint on which plaintiffs prevailed are relevant to the court's determination of reasonable fees.’); Brown, 2003 WL 21517919, at *1 (allowing discovery into the hourly rate charged by Defendant's attorneys and the amount of time spent preparing for summary judgment and trial)”).

August 4, 2021 correspondence to the CSM from Wilbur-Ellis's counsel, Ryan M. Buschell at p. 3 (quoting Order No. 6 at p. 8).

2017 WL 2954965 (E.D. Mo. July 11, 2017).

August 4, 2021 correspondence to the CSM from Wilbur-Ellis's counsel, Ryan M. Buschell at p. 4.

Id.

Id. at p. 5.

August 4, 2021 correspondence to the CSM from Diversified's counsel, Matthew S. McBride at p. 3.

Nestlé Purina Pet Care.

August 4, 2021 correspondence to the CSM from Diversified's counsel, Matthew S. McBride at pp. 3-4.

July 23, 2021 correspondence to the CSM from Blue Buffalo's counsel, S. Jamal Faleel at p. 5.

See “Answer to Second Amended Complaint, Third Amended Counterclaim, and Third-Party Complaint,” Dkt. No. 217.

See Dkt. Nos. 1, 9 and 104.

July 23, 2021 correspondence to the CSM from Blue Buffalo's counsel, S. Jamal Faleel at p. 2.

Order No. 6 at p. 9.

Id. at p. 11.

July 23, 2021 correspondence to the CSM from Blue Buffalo's counsel, S. Jamal Faleel at p. 3.

And, by implication, Wilbur-Ellis's positions and actions.

Order No. 6 at p. 9.

215 F.3d 880 (8th Cir. 2000).

Order No. 6 at p. 8.

Dkt. No. 1556.