LeGrand v. Abbott Laboratories

4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA CONDALISA LEGRAND, Case No. 22-cv-05815-TSH 8 Plaintiff, DISCOVERY ORDER 9 v. Re: Dkt. No. 91 10 ABBOTT LABORATORIES, 11 Defendant.

13 Plaintiff moves to compel 54 documents responsive to her amended request for production 40 that Abbott has withheld based on the First Amendment privilege. The withheld documents are communications between Abbott and four industry groups and their members regarding the groups’ (1) draft comments on, and strategy and potential legal arguments about, an FDA proposed product labeling rule, and (2) emails and draft documents reflecting the formulation of trade association strategy regarding pending or proposed regulations, legislation, draft FDA guidance, and proposed international guidelines. See ECF No. 91-9.

20 Despite Abbott’s belated assertion of a First Amendment privilege, the Court declines to find a waiver of this constitutional privilege. “[T]here is case law finding ‘that where a constitutional privilege is involved a trial court possesses the discretion not to find waiver.’”

23 Apple Inc. v. Match Group, Inc., 2021 WL 3727067, *6 (N.D. Cal. Aug. 19, 2021) (quoting In re DG Acquisition Corp., 151 F.3d 75, 81 (2d Cir. 1998)). “‘This is particularly true . . . when the alleged waiver is accomplished by inaction rather than action.’” Id. (quoting same).

26 Abbott has made a prima facie case that producing these communications will chill associational rights. See Perry v. Schwarzenegger, 591 F.3d 1147, 1163 (9th Cir. 2010). The to establish this prima facie case because it is common sense that forcing Abbott to produce these materials will chill the willingness of members of these industry groups to have candid communications with each other about these subjects. And while it is true that commercial speech is entitled to less protection than political, religious, or literary speech, see In re Anonymous Online Speakers, 661 F.3d 1168, 1177 (9th Cir. 2011), it is still entitled to some protection, and the First Amendment “applies to trade associations as well.” In re Recalled Abbott Infant Formula Products Liability Litig., 2024 WL 36982, *1 (N.D. Ill. Jan. 3, 2024).1 8 Abbott “having made a prima facie showing of infringement, the evidentiary burden shifts to the plaintiff[] to demonstrate a sufficient need for the discovery to counterbalance that infringement” of First Amendment rights. Perry, 591 F.3d at 1164. Plaintiff does not demonstrate that need. Plaintiff argues that the communications between the industry group members leading up to the groups’ final public comments may reflect the members’ true beliefs and understandings about the healthfulness of added sugar. While that may be true, it doesn’t demonstrate a need for this discovery. It is unlikely that Abbott or any other company discloses information about added sugar in communications external to the company that it is not also contained, likely in greater detail, in internal documents that would not implicate First Amendment rights. Think about it: For an employee at one of these companies to send an external email to other industry group members stating the company’s views about the effects of added sugar, that information had to come from somewhere. Producing the associational communications would reveal the groups’ strategy concerns and objectives and provide insight into their lobbying efforts – thus implicating First Amendment concerns – but it is not a particularly good way to find out what is known to these companies about the effects of added sugar and whether food products with added sugar can be considered healthy. Internal documents that do not implicate First Amendment concerns are a Plaintiff argues that Abbott’s withdrawal of its claim of First Amendment privilege over 16 communications on a previous version of its privilege log (ECF No. 91-7) shows that disclosure of these communications is not generally problematic, with the suggestion that Abbott is selectively claiming privilege over the remaining documents because their content is damaging. However, at the hearing both sides agreed those 16 documents were non-substantive (primarily they were meeting invites), and that Abbott has not produced any substantive communications with these better source for that information.

2 Accordingly, Abbott’s claim of First Amendment privilege is SUSTAINED, and || Plaintiffs motion to compel is DENIED.

4 IT IS SO ORDERED.

6 Dated: October 9, 2024 7 A —/ \ - l.. f _ THOMAS S. HIXSON 8 United States Magistrate Judge a 12

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