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Del Monte International GMBH v. Ticofrut, S.A.

United States District Court, S.D. Florida, Miami Division

May 2, 2017

TICOFRUT, S.A. Defendant.



         In his 2012 song “Pilot Jones, ” Frank Ocean explained that “we once had things in common / now the only thing we share is the refrigerator.”[1] On the other hand, singer/songwriter Alicia Keys provided the opposite-end-of-the-spectrum approach to having similar ideas in her “In Common” song, when she disclosed that “We got way too much in common since I'm being honest with you.”[2" name="FN2" id="FN2">2]

         So this discovery Order concerns the issue of whether the defendant and a non-party have enough in common to invoke the common interest doctrine, which provides protection from waiver when otherwise privileged material is shared with others.

         Specifically, Plaintiff Del Monte International, GMBH (“Del Monte”) and Defendant Ticofrut S.A. (“Ticofrut”) are wrangling over four emails exchanged between Ticofrut's CEO, Roberto Aragon, and Jorge Gurria, the CEO of a Costa Rican pineapple grower known as Inversiones y Procesadora Tropical, S.A. (“INPROTSA”). INPROTSA had been selling pineapples to Ticofrut, but Del Monte was troubled by this because it had obtained an arbitration award against INPROTSA. The arbitration award enjoined INPROTSA from selling pineapples to third parties.

         After Ticofrut failed to comply with Del Monte's demand that it stop buying pineapples from INPROTSA, Del Monte filed this lawsuit against Ticofrut and propounded a request for production. Ticofrut withheld certain documents from production, including the four emails at issue here. Ticofrut contends that these four emails (with attachments) are exempt from discovery under the common interest doctrine. If adequately established, then this doctrine permits parties to share work product and attorney-client privileged documents with other parties sharing an interest in actual or potential litigation against an adversary (when the nature of the common interest is legal and not solely commercial), without losing the privilege.

         For the reasons outlined in greater detail below, the Undersigned concludes that Ticofrut has not met its burden of establishing all the elements of the common interest doctrine for the four documents at issue here. Therefore, Ticofrut shall produce those documents within three business days of the date of this Order.

         Moreover, because I have determined that Ticofrut failed to meet its burden to establish the common interest doctrine, there is no need to address Del Monte's waiver argument (i.e., that Ticofrut waived the common interest doctrine by producing the Indemnity Agreement between Ticofrut and INPROTSA and by submitting Mr. Aragon's declaration). Similarly, there is no need to address Del Monte's argument that its so-called substantial need for these four documents is sufficient to trigger the exception to work product protection afforded by Federal Rule of Civil Procedure 26(b)(3).

         Factual Background

         With a few modest edits, this is how Ticofrut portrayed the facts in its memorandum [ECF No. 109]:

         Del Monte entered into an agreement dated May 9, 2001 (the “Contract”) with INPROTSA, pursuant to which Del Monte agreed to provide MD-2 pineapple seeds to INPROTSA, and INPROTSA agreed to develop and sell MD-2 pineapples to Del Monte. [ECF No. 1, Compl. ¶ 8 & Ex. A ¶¶ 1-3]. Beginning in 2011, Del Monte authorized INPROTSA to sell certain pineapples to Ticofrut, a Costa Rican manufacturer of juice products. [ECF No. 16, Ex. A ¶ 5; see also 1/12/17 Hearing Tr. at 23:15-21 25:8-19, 77:18-21].

         In March 2014, after the Contract expired, Del Monte initiated an arbitration proceeding against INPROTSA, and on June 10, 2016, an arbitral tribunal issued an award (the “Award”), finding, inter alia, that until INPROTSA had complied with certain obligations under the Award, INPROTSA was enjoined from selling to third parties all but 7% of its produce originating from seeds obtained from Del Monte. [ECF No. 1, Compl. ¶¶ 13, 15].

         On June 21, 2016, Del Monte notified Ticofrut of the Award and demanded that Ticofrut immediately cease purchasing pineapples from INPROTSA. [ECF No. 106, Ex. A]. Del Monte also threatened to assert a claim against Ticofrut for “tortious and illegal interference and violation of Del Monte's valuable commercial and legal rights.” [Id.].

         On June 23, 2016, Roberto Aragon, the CEO of Ticofrut, spoke with Jorge Gurria, the CEO of INPROTSA. [ECF No. 106-1, ¶ 4]. During that conversation, Mr. Gurria described the arbitral proceedings and Award. [Id.]. To allay any concerns about continuing to purchase pineapples from INPROTSA after receipt of Del Monte's June 21 letter, Mr. Gurria offered to indemnify Ticofrut for costs associated with threatened litigation by Del Monte. [Id.].

         On June 27 and June 29, 2016, Del Monte sent Ticofrut additional letters, again asserting that purchasing pineapples from INPROTSA would constitute interference with Del Monte's interests, and that Del Monte would “vigorously” enforce its rights, including but not limited to, filing legal proceedings against Ticofrut. [ECF No. 106-1, Exs. B, C].

         Ticofrut, INPROTSA and their respective counsel communicated concerning indemnification and strategy with respect to Del Monte's threatened litigation, as they understood they had mutual legal interests in pursuing a common legal strategy. As part of these communications, on July 1, 2016, Mr. Gurria emailed Mr. Aragon a draft of the indemnification agreement. [Id. at ¶ 6].

         On July 18, 2016, Del Monte filed a petition in Costa Rica seeking recognition and authorization of the Award against INPROTSA (“Petition to Confirm”), and on July 25, 2016, Del Monte commenced this action against Ticofrut in Miami-Dade Circuit Court. [ECF No. 1, Composite Ex. A, Compl.; ECF No. 10, Ex. A ¶ 13]. Del Monte attached the Award as the sole exhibit to the Complaint, referred to it in over a third of the Complaint's paragraphs, and relied on it in every count. [ECF No. 1, Compl. at Counts I-V and ¶¶ 12-16, 19, 21, 25-28, 31-34, 37-38, 42].

         On September 7, 2016, Ticofrut and INPROTSA formalized and signed their indemnification agreement (“Indemnity Agreement”).

         On September 9, 2016, INPROTSA filed a petition to vacate the Award in Miami-Dade Circuit Court (“Petition to Vacate”), and on October 11, 2016, Del Monte filed a Motion to Dismiss the Petition to Vacate and Cross-Petition to Confirm the Award (“Cross-Petition”).

         On September 22, 2016, Del Monte served Ticofrut with its First Request for the Production of Documents (“Document Requests”). Del Monte asked Ticofrut to produce all agreements or understandings between Ticofrut and INPROTSA, including “documents referencing or evidencing the negotiations leading up to the execution of such . . . agreements, understandings or undertakings (including, without limitation, communications and draft contracts, agreements, understanding[s] or undertakings).” [ECF No. 109-2, Request 6]. Ticofrut also asked for all “contracts, agreements, understandings or undertakings between or among INPROTSA, on the one hand, and TicoFrut and/or Tampa Juice, on the other, which include provisions for indemnification, contribution, a litigation defense, and/or hold harmless.” [Id. at Request 80].

         On November 11, 2016, Ticofrut served Del Monte with its Amended Response to the Document Requests. [ECF No. 109-3]. Pursuant to a Protective Order entered in this case on November 18, 2016 [ECF No. 47], Ticofrut produced documents to Del Monte in December 2016. [ECF No. 109-4]. These productions included a copy of the Indemnity Agreement, produced in accordance with Florida Rule of Civil Procedure 1.280(b)(2). Ticofrut also produced two emails between the CEOs of INPROTSA and Ticofrut concerning the status of the written indemnity agreement that were not protected by the attorney-client or work-product privileges. [March 31, 2017 Hearing Tr., at 10:2-9].

         On January 9, 2017, Ticofrut produced a Privilege Log. [ECF No. 109-5].

         On January 20, 2017, Del Monte's counsel contacted Ticofrut's counsel to object to Ticofrut withholding certain documents on the basis of the common interest doctrine. Despite subsequent discussions, the parties were unable to resolve the dispute, and on February 8, 2017, Del Monte filed its Notice of Discovery Hearing [ECF No. 82].

         On March 31, 2017, this Court held the Hearing on whether Ticofrut was entitled to withhold documents based on certain privileges.

         Pursuant to the Court's Order [ECF No. 105] issued after the Hearing, Ticofrut filed the Aragon Declaration on April 3, 2017, and submitted an amended Privilege Log to Del Monte days later. [ECF No. 109-6]. The Amended Privilege Log lists only 4 entries (emails and attachments) as protected by the common interest privilege: two, dated July 1 and 9, 2016, are withheld under the attorney-client and work-product privileges; and the other two, dated July 1 and 11, 2016, are withheld under only the attorney-client privilege. [Id. at lines 54, 55, 65, 70]. Thus, the common interest issue before the Court has been narrowed to these four documents and attachments.

         The post-hearing Order required Ticofrut's amended privilege log “to include a master key/chart that identifies the names of listed attorneys, explains who the clients are of such attorneys, describes the roles of such attorneys (i.e., in-house counsel for Defendant), and the location of the attorney (i.e., based in Costa Rica)[.]”

         The Indemnity ...

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