A federal court in California has ordered Bumble Bee Foods, LLC to produce “documents dating back to 2004 regarding the marketing and labeling strategies for the products [plaintiff ] purchased and for products with the same Omega-3 label or with nearly identical labels” in a putative nationwide consumer-fraud class action. Ogden v. Bumble Bee Foods, LLC, No. 12-1828 (U.S. Dist. Ct., N.D. Cal., San Jose Div., order entered April 16, 2013). The named plaintiff seeks to represent class members who purchased products she did not buy and purchased a product made by a separate company that is not a defendant in the case. According to the court, the discovery dispute was about whether Bumble Bee “must produce discovery on all of its products . . . from eight years prior to the initiation of this lawsuit . . . [and involving] King Oscar.”

The court determined that it was not appropriate to consider whether the named plaintiff has standing to pursue claims for products she did not purchase during the discovery phase before class certification. Still, the court required her to show that she has standing to bring her own claims and “then she must show numerosity, commonality, typicality, and that she is an adequate representative of the full class to justify the requested discovery.” The court found that the plaintiff’s purchase of Bumble Bee tuna salad and King Oscar sardines and allegations that she paid more than she would have “satisfies her obligations at this point to show standing.” The court also found that she had sufficiently alleged facts to meet the numerosity, commonality and adequacy requirements.

At issue, according to the court, was whether the plaintiff’s claims were typical of the class claims, and it approached the issue relying on a “sufficient similarity” test, that is, whether the named plaintiff can bring claims for class members who purchased food products “sufficiently similar” to the products she bought. The court found that she had “made a prima facie showing of typicality only as to products with similar or identical claims about Omega-3 content, as those labels may have misled class members in the same way that they allegedly misled Ogden even if the products are not the same. She also has established a prima facie showing of typicality for products with essentially the same ingredients as the products she purchased, as those also fall within [the] sufficient similarity test.” Products with allegedly false nutrient information not similar to the products the plaintiff purchased, however, do not fall within the sufficiently similar test and therefore she could not show typicality as to those products. So the court denied discovery as to those products.

The court allowed discovery of marketing information dated four years before suit was filed because “[i]nformation about how Bumble Bee decided to add the labels onto the products would either be relevant to Ogden’s claims or could lead to admissible evidence supporting her claims.” The court refused to order Bumble Bee to produce documents within the exclusive control of King Oscar, finding that the plaintiff did not produce any evidence of Bumble Bee’s control other than that “a link from Bumble Bee’s website leads to King Oscar’s website,” which the court found insufficient in the absence of evidence that the two corporations are one legal entity.