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LAW OFFICES OF RONALD A. MARRON 1 RONALD A. MARRON (175650) [email protected] 2 MICHAEL T. HOUCHIN (305541) [email protected] 3 651 Arroyo Drive 4 San Diego, California 92103 Telephone:(619) 696-9006 5 Facsimile: (619) 564-6665 Counsel for Plaintiffs and the Proposed Class 6 7

8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA

10 HOWARD CLARK, TODD HALL, and CASE NO.: '19CV0356 LAB MDD 11 ANGELA PIRRONE, individually, on behalf of all others similarly situated, 12 and the general public, CLASS ACTION

13 Plaintiffs, MEMORANDUM OF POINTS AND 14 vs. AUTHORITIES IN SUPPORT OF 15 NON-PARTY LAW OFFICES OF

16 RONALD A. MARRON’S MOTION TO QUASH SUBPOENA 17 THE HERSHEY COMPANY, a Delaware corporation 18 Defendant. 19 20

21

22 23 24 25 26 27 28 1 Clark v. The Hershey Co. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF NON-PARTY LAW OFFICES OF RONALD A. MARRON’S MOTION TO QUASH SUBPOENA Case 3:19-cv-00356-LAB-MDD Document 1-2 Filed 02/21/19 PageID.6 Page 2 of 17

1 TABLE OF CONTENTS 2 I. INTRODUCTION ...... 1 3 II. FACTUAL BACKGROUND ...... 1 4 A. The Instant Subpoena that Was Issued to Plaintiffs’ Counsel ...... 2 5 III. LEGAL STANDARD...... 3 6 IV. ARGUMENT ...... 5 7 A. Defendant Cannot Satisfy the Shelton Test and the Subpoena Should be 8 Quashed ...... 5 9 1. Defendant Has Other Means of Obtaining the Requested Documents ...... 5 10 2. The Requested Documents Are Both Privileged and Irrelevant ...... 6 11 a. Documents that Are Protected by the Attorney-Client Privilege and the 12 Attorney-Work Product Doctrine ...... 6 13 14 b. Documents that Are Irrelevant and Not Proportional to the Needs of the 15 Case ...... 8 16 3. The Requested Documents Are Not Crucial to the Preparation of 17 Defendant’s Case ...... 10 18 B. Alternatively, this Court Should Issue a Protective Order to Protect the 19 Marron Firm From Undue Burden and Expense ...... 10 20 C. The Subpoena Should Also be Quashed Because it Was Not Served in 21 Accordance with Federal Rule of Civil Procedure 45(a)(4) ...... 11 22 V. CONCLUSION ...... 11 23 24 25 26 27 28 ii Clark v. The Hershey Co. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF NON-PARTY LAW OFFICES OF RONALD A. MARRON’S MOTION TO QUASH SUBPOENA Case 3:19-cv-00356-LAB-MDD Document 1-2 Filed 02/21/19 PageID.7 Page 3 of 17

1 TABLE OF AUTHORITIES 2 Cases 3 Admiral Ins. Co. v. U.S. Dist. Court for Dist. of Arizona, 4 881 F.2d 1486 (9th Cir. 1989) ...... 7, 8 5 Chao v. Aurora Loan Servs., LLC, 6 2012 WL 5988617 (N.D. Cal. Nov. 26, 2012) ...... 9 7 Daughtery v. Wilson, 8 2008 WL 4748042 (S.D. Cal. Oct. 23, 2008) ...... 9 9 Erhart v. Bofi Fed. Bank, 10 11 2017 WL 840648 (S.D. Cal. Mar. 2, 2017) ...... 4, 5, 6, 10 12 Flotsam of Cal., Inc. v. Huntington Beach Conference & Visitors Bureau, 13 2007 WL 4171136 (N.D. Cal. Nov. 26, 2007) ...... 4 14 Graff v. Hunt & Henriques, 15 2008 WL 2854517 (N.D. Cal. July 23, 2008) ...... 10 16 Hernandez v. Tanninen, 17 604 F.3d 1095 (9th Cir. 2010) ...... 7 18 Hickman v. Taylor, 19 329 U.S. 495 (1947) ...... 6, 7 20 In re Grand Jury Subpoena (Mark Torf/Torf Envtl. Mgmt.), 21 357 F.3d 900 (9th Cir. 2004) ...... 8 22 In re Grand Jury Subpoena Dated July 6, 2005, 23 510 F.3d 180 (2d Cir. 2007) ...... 7 24 In re Subpoena Issued to Dennis Friedman, 25 350 F.3d 65 (2d Cir. 2003) ...... 11 26 27 28 iii Clark v. The Hershey Co. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF NON-PARTY LAW OFFICES OF RONALD A. MARRON’S MOTION TO QUASH SUBPOENA Case 3:19-cv-00356-LAB-MDD Document 1-2 Filed 02/21/19 PageID.8 Page 4 of 17

1 Kirzhner v. Silverstein, 2 2011 WL 1321750 (D.Colo. Apr. 5, 2011) ...... 4 3 Kirzhner v. Silverstein, 4 870 F. Supp. 2d 1145 (D. Colo. 2012) ...... 1 5 M.A. Mobile Ltd. v. Indian Inst. of Tech. Kharagpur, 6 2014 WL 819161 (N.D. Cal. Feb. 28, 2014) ...... 9 7 Moon v. SCP Pool Corp., 8 232 F.R.D. 633 (C.D. Cal. 2005) ...... 3 9 Nocal, Inc. v. Sabercat Ventures, Inc., 10 2004 WL 3174427 (N.D. Cal. Nov. 15, 2004) ...... 10 11 Rhodes v. Sutter Gould Med. Found., 12 2014 WL 2091767 (E.D. Cal. May 16, 2014) ...... 9 13 14 Rivera v. NIBCO, Inc., 15 364 F.3d 1057 (9th Cir. 2004) ...... 9 16 Rygg v. Hulbert, 17 2013 WL 264762 (W.D. Wash. Jan. 23, 2013) ...... 4 18 Shelton v. Am. Motors Corp., 19 805 F.2d 1323 (8th Cir. 1986) ...... passim 20 Upjohn Co. v. U.S., 21 449 U.S. 383 (1981) ...... 6 22 Valencia v. Colo. Cas. Ins. Co., 23 2007 WL 5685360 (D.N.M. Dec. 8, 2007) ...... 4 24 XTO Energy, Inc. v. ATD, LLC, 25 2016 WL 1730171 (D.N.M. Apr. 1, 2016) ...... 4 26

27 28 iv Clark v. The Hershey Co. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF NON-PARTY LAW OFFICES OF RONALD A. MARRON’S MOTION TO QUASH SUBPOENA Case 3:19-cv-00356-LAB-MDD Document 1-2 Filed 02/21/19 PageID.9 Page 5 of 17

1 Statutes 2 Cal. Bus. & Prof. Code § 17200 et seq...... 2 3 Cal. Bus. & Prof. Code. §§ 17500 et seq...... 2 4 Cal. Civ. Code §§ 1750 et seq...... 2 5 New York’s Claim for False Advertising, N.Y. Bus. Law § 350 ...... 2 6 New York’s Claim for Unfair Trade Practices, N.Y. Bus. Law § 349 ...... 2 7 Rules 8 9 Fed. R. Civ. P. 26(b)(1) ...... 3, 8 10 Fed. R. Civ. P. 26(c) ...... 10 11 Fed. R. Civ. P. 45(d)(3)(A)(iii)(iv) ...... 3 12 Federal Rule of Civil Procedure 26(b)(2) ...... 5 13 Federal Rule of Civil Procedure 45(a)(4) ...... 11 14 Federal Rule of Civil Procedure 45(b) ...... 3 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v Clark v. The Hershey Co. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF NON-PARTY LAW OFFICES OF RONALD A. MARRON’S MOTION TO QUASH SUBPOENA Case 3:19-cv-00356-LAB-MDD Document 1-2 Filed 02/21/19 PageID.10 Page 6 of 17

1 Non-Party Law Offices of Ronald A. Marron, APLC (the “Marron Firm”) 2 respectfully submits this Memorandum of Points and Authorities in Support of its Motion 3 to Quash the Subpoena that was issued to it on January 23, 2019 by Defendant The 4 Hershey Company (“Hershey” or “Defendant”) in the matter of Clark v. The Hershey 5 Co., Case No. 3:18-cv-06113-WHA (N.D. Cal.). For the reasons set forth below, the 6 Marron Firm’s Motion to Quash should be granted in its entirety. 7 I. INTRODUCTION 8 The Marron Firm’s documents are not the primary aim of Defendant’s subpoena. 9 The primary aim is to harass, burden, and smear active litigation counsel for Plaintiffs 10 Howard Clark, Todd Hall, and Angela Pirrone (“Plaintiffs”) who are locked into a class 11 action lawsuit with Defendant. The instant subpoena is a strategic ploy designed to strike 12 a blow against a class action litigation firm that has been a thorn in Defendant’s side. 13 Drawing opposing counsel into discovery is antithetical to our adversarial system 14 precisely because it lends itself to harassment and gamesmanship like this. See, e.g., 15 Kirzhner v. Silverstein, 870 F. Supp. 2d 1145, 1151 (D. Colo. 2012), on reconsideration 16 in part, No. 09-CV-02858-RBJ-BNB, 2012 WL 1222368 (D. Colo. Apr. 10, 2012) 17 (quashing subpoena where “Defendant not only requested production of documents in 18 the files of plaintiff's trial counsel but demanded that … counsel prepare a privilege log 19 detailing the documents withheld” and recognizing “the ugliness of that type of 20 discovery.”). Defendant have made no secret of the fact that their main goal is to taint a 21 law firm that has had the temerity to stand up for the Plaintiffs and proposed class 22 members. Defendant’s subpoena crosses a line. It should therefore be quashed in its 23 entirety. 24 II. FACTUAL BACKGROUND 25 This action commenced on October 4, 2018 when Plaintiff Howard Clark filed a 26 class action complaint against Defendant in the United States District Court for the 27 Northern District of California. See Clark v. The Hershey Co., Case No. 3:18-cv-06113- 28 WHA (ECF No. 1). Plaintiffs Howard Clark, Todd Hall, and Angela Pirrone then filed a 1 Clark v. The Hershey Co. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF NON-PARTY LAW OFFICES OF RONALD A. MARRON’S MOTION TO QUASH SUBPOENA

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1 First Amended Complaint on November 21, 2018 (Id. at ECF No. 16). The gravamen of 2 Plaintiffs’ claims is that Defendant made false and misleading representations regarding 3 the use of artificial flavoring ingredients in its Brookside Dark Chocolate Products 4 (“Products” or “Brookside Products”). (Id.) Defendant advertises its Brookside Products 5 as containing “no artificial flavors,” deliberately intending to give consumers the 6 impression that the Products are composed only of natural flavors. (Id. ¶ 25). Plaintiff 7 alleges that Defendant’s representations regarding the non-use of artificial flavoring 8 ingredients are false and misleading because “[t]he Products contain a synthetic chemical 9 flavoring compound identified as ‘malic acid.’” (Id. ¶ 27). Plaintiffs brought several 10 claims against Defendant, including violations of the California Consumer Legal 11 Remedies Act (“CLRA”), Cal. Civ. Code §§ 1750 et seq.; violations of California's False 12 Advertising Law (“FAL”), Cal. Bus. & Prof. Code. §§ 17500 et seq., and violations of 13 California's Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code §§ 17200 et seq; 14 violations of New York’s Claim for Unfair Trade Practices, N.Y. Bus. Law § 349; 15 violations of New York’s Claim for False Advertising, N.Y. Bus. Law § 350. (See 16 generally, id.) 17 On December 5, 2018, Defendant filed a Motion to Dismiss Plaintiffs’ First 18 Amended Complaint (Id. at ECF No. 18). Plaintiffs opposed Defendant’s Motion on 19 January 9, 2019 (Id. at ECF No. 28) and Defendant filed a reply brief on January 30, 2019 20 (Id. at ECF No. 33). On February 14, 2019, the parties attended a hearing before the 21 Honorable William Alsup regarding Defendant’s Motion to Dismiss. The matter was 22 taken under submission and the parties are awaiting a written order.

23 A. The Instant Subpoena that Was Issued to Plaintiffs’ Counsel 24 The subpoena subject to this dispute was issued by Defendant on January 23, 2019. 25 See Declaration of Ronald A. Marron in Support of Motion to Quash Subpoena (“Marron 26 Decl.”), ¶ 2 & Ex. 1. The instant subpoena was not served in accordance with Federal 27 Rule of Civil Procedure 45(a)(4), which requires that a Notice of Intent to Serve 28 2 Clark v. The Hershey Co. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF NON-PARTY LAW OFFICES OF RONALD A. MARRON’S MOTION TO QUASH SUBPOENA

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1 Subpoena be served on each party before serving the Subpoena on the person to whom it 2 is directed. Instead, Defendant served the subpoena without serving Plaintiffs’ counsel 3 with any Notice of Intent to serve the subpoena. See Marron Decl., ¶ 2. The subpoena 4 requests the following categories of documents: (a) documents and communications 5 relating to Defendant or any of its products (Request Numbers 1, 2, and 12); (b) 6 documents relating to independent matters concerning Non-Party the Law Office of 7 Ronald A. Marron (Request Numbers 10, 13, 14, 15, 16, and 19); (c) documents and 8 communications relating to Non-Party the Law Office of Ronald A. Marron and Non- 9 Party www.ClassActionRebates.com (Request Numbers 3, 4, 5, 6, 11, and 17); (d) 10 documents and communications relating to Non-Party the Law Office of Ronald A. 11 Marron and Non-Party Classaura, LLC (Request Numbers 7, 8, 9, and 18); and (e) 12 documents relating to communications between Plaintiffs and their counsel (Request 13 Numbers 20, 21, and 22). Marron Decl., ¶ 2 & Ex. 1. The Marron Firm served objections 14 to the subpoena on February 20, 2019. See Marron Decl., ¶ 3 & Ex. 2. 15 III. LEGAL STANDARD 16 The Federal Rules of Civil Procedure allow parties to obtain discovery regarding 17 “any nonprivileged matter that is relevant to any party's claim or defense and proportional 18 to the needs of the case.” Fed. R. Civ. P. 26(b)(1). A subpoena, however, must be quashed 19 if it requires disclosure of privileged information or subjects a person to an undue burden. 20 Fed. R. Civ. P. 45(d)(3)(A)(iii)(iv). Courts must weigh the burden imposed on a 21 subpoenaed party against the value of the information the subpoena seeks. Moon v. SCP 22 Pool Corp., 232 F.R.D. 633, 637 (C.D. Cal. 2005). A nonparty’s failure to act timely will 23 not bar consideration of objections to a Rule 45 subpoena if “the subpoena is overbroad 24 on its face and exceeds the bounds of fair discovery and the subpoenaed witness is a non- 25 party acting in good faith.” Id. at 636. 26 With respect to a subpoena directed to opposing counsel, such as the present 27 subpoena, courts within this District have adopted the test set forth by the Eighth Circuit 28 Court of Appeals in Shelton v. Am. Motors Corp., 805 F.2d 1323 (8th Cir. 1986). See, 3 Clark v. The Hershey Co. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF NON-PARTY LAW OFFICES OF RONALD A. MARRON’S MOTION TO QUASH SUBPOENA

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1 e.g., Erhart v. Bofi Fed. Bank, No. 15CV2287 BAS (NLS), 2017 WL 840648, at *3 (S.D. 2 Cal. Mar. 2, 2017) (applying the Shelton Test and collecting authority). “A party moving 3 to quash a subpoena normally has the burden of persuasion.” Erhart, 2017 WL 840648, 4 at *3 (citing Moon, 232 F.R.D. at 637). “But under Shelton the burden shifts, as the party 5 seeking [discovery from opposing counsel] must show it needs the [discovery] by 6 demonstrating these factors: 7 (1) no other means exist to obtain the information other than to [seek 8 discovery from] opposing counsel; (2) the information sought is relevant and nonprivileged; and (3) the information is crucial to the preparation of the 9 case.” 10 Erhart, 2017 WL 840648, at *4 (quoting Shelton, 805 F.2d at 1327) (alterations in 11 original). Courts have found the Shelton Test to be applicable to both deposition 12 subpoenas and to subpoenas to produce documents. See, e.g., Rygg v. Hulbert, No. C11- 13 1827JLR, 2013 WL 264762, at *1 (W.D. Wash. Jan. 23, 2013), aff'd, 611 F. App'x 900 14 (9th Cir. 2015) (holding that Shelton “extends not only to subpoenas requesting 15 depositions, but also to subpoenas duces tecum requesting documents from Defendant’s 16 lawyers.”); Flotsam of Cal., Inc. v. Huntington Beach Conference & Visitors Bureau, No. 17 C06-7028 MMC MEJ, 2007 WL 4171136 (N.D. Cal. Nov. 26, 2007); Valencia v. Colo. 18 Cas. Ins. Co., 2007 WL 5685360, at *4 (D.N.M. Dec. 8, 2007) (quashing subpoenas duces 19 tecum addressed to the defendant's attorney, because the plaintiff's discovery request 20 imposed an undue burden, and noting that the plaintiff could not meet all three of the 21 Shelton test's criteria); XTO Energy, Inc. v. ATD, LLC, No. CIV 14-1021 JB/SCY, 2016 22 WL 1730171, at *31 (D.N.M. Apr. 1, 2016) (“The use of a subpoena duces tecum to 23 attempt to obtain opposing counsel's documents and files is equally improper and may be 24 more burdensome than merely attempting to obtain testimony.”) (quoting Kirzhner v. 25 Silverstein, 2011 WL 1321750, *3 (D.Colo. Apr. 5, 2011)). 26 27 28 4 Clark v. The Hershey Co. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF NON-PARTY LAW OFFICES OF RONALD A. MARRON’S MOTION TO QUASH SUBPOENA

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1 IV. ARGUMENT 2 A. Defendant Cannot Satisfy the Shelton Test and the Subpoena Should 3 be Quashed 4 Defendant bears the burden of satisfying all three criteria of the Shelton test. See 5 Erhart, 2017 WL 840648, at *4. Here, Defendant will be unable to satisfy its burden. 6 First, Defendant has other means of obtaining the requested information. Second, many 7 of the requested documents are protected from disclosure based on the attorney-client 8 privilege and the attorney work product doctrine. Many of requested documents are 9 clearly privileged and none of the requested documents have any relevance to a claim or 10 defense in this action. Third, even if the documents have some relevance to this litigation 11 (they do not), Defendant still cannot prove that the requested documents are crucial to the 12 preparation of its case. For these reasons, the Court should grant the Marron Firm’s 13 Motion to Quash. 14 1. Defendant Has Other Means of Obtaining the Requested Documents 15 Under the first prong of the Shelton Test, a party must demonstrate that the 16 information it seeks through a subpoena to opposing counsel is not obtainable from any 17 other source. Erhart, 2017 WL 840648, at *4 (citing Shelton, 805 F.2d at 1327). 18 Defendant has demonstrated that it has other avenues of obtaining the requested 19 information that would be less burdensome than subpoenaing opposing counsel. For 20 example, Defendant has already noticed depositions for all three Plaintiffs, where 21 Defendant will be able to seek the same information requested by Request Numbers 20, 22 21, and 22. In addition, many of the document requests (Request Numbers 3, 4, 5, 6, 7, 23 8, 9, and 10) relate to documents and communications between the Marron Firm and 24 specific third parties. Therefore, Defendant may obtain the requested information from 25 those third parties, instead of unduly burdening and harassing Plaintiffs’ counsel. See 26 Fed. R. Civ. P. 26(b)(2) (a court may limit discovery if “the discovery sought … is 27 obtainable from some other source that is more convenient, less burdensome, or less 28 5 Clark v. The Hershey Co. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF NON-PARTY LAW OFFICES OF RONALD A. MARRON’S MOTION TO QUASH SUBPOENA

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1 expensive” or if “the burden or expense of the proposed discovery outweighs its likely 2 benefit.”). 3 Defendant’s issuance of a subpoena to opposing counsel is likewise not supported 4 by factual or legal authority. It is simply gamesmanship that is designed to harass 5 opposing counsel. Because Defendant cannot satisfy the first criterion of the Shelton 6 Test, the subpoena issued to the Marron Firm should be quashed. 7 2. The Requested Documents Are Both Privileged and Irrelevant 8 Under the second prong of the Shelton Test, a party must demonstrate that the 9 information it seeks is both relevant and non-privileged. Erhart, 2017 WL 840648, at *5; 10 Shelton, 805 F.2d at 1327. Many of the documents sought by Defendant are protected 11 from disclosure by the attorney-client privilege and/or the attorney work product doctrine. 12 Moreover, none of the documents requested by the Defendant have any relevance to the 13 claims and defenses in this action. 14 a. Documents that Are Protected by the Attorney-Client Privilege and the 15 Attorney-Work Product Doctrine 16 The attorney-client privilege “recognizes that sound legal advice or advocacy… 17 depends upon the lawyer’s being fully informed by the client.” Upjohn Co. v. U.S., 449 18 U.S. 383, 389 (1981). Similarly, the work product doctrine has its roots in the “orderly 19 prosecution and defense of legal claims.” Hickman v. Taylor, 329 U.S. 495, 510, 67 S. 20 Ct. 385, 393, 91 L. Ed. 451 (1947). The doctrine is fundamental to our adversarial 21 system: 22 [I]t is essential that a lawyer work with a certain degree of privacy, free from 23 unnecessary intrusion by opposing parties and their counsel. Proper preparation of a client's case demands that he assemble information, sift what 24 he considers to be the relevant from the irrelevant facts, prepare his legal 25 theories and plan his strategy without undue and needless interference. That is the historical and the necessary way in which lawyers act within the 26 framework of our system of jurisprudence to promote justice and to protect 27 their clients' interests. This work is reflected, of course, in interviews, 28 6 Clark v. The Hershey Co. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF NON-PARTY LAW OFFICES OF RONALD A. MARRON’S MOTION TO QUASH SUBPOENA

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1 statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways[.] 2 3 Hickman, 329 U.S. at 510–11. “Opinion” or “core” work product— which can reveal the 4 “mental impressions, conclusions, opinions, or legal theories of an attorney or other 5 representative— is entitled to even greater, “special protection.” In re Grand Jury 6 Subpoena Dated July 6, 2005, 510 F.3d 180, 183 (2d Cir. 2007); Upjohn, 449 U.S. 383, 7 401-02. 8 Several of Defendant’s documents requests fall squarely within the purview of the 9 attorney-client privilege and the attorney work product doctrine. For example, Request 10 Number 20 seeks “All Communications between You and Howard Clark, in the last four 11 years and before he engaged You as counsel,” Request Number 21 seeks “All 12 Communications between You and Angela Pirrone, in the last four years and before she 13 engaged You as counsel,” and Request Number 22 seeks “All Communications between 14 You and Todd Hall, in the last four years and before he engaged You as counsel.” Marron 15 Decl., ¶ 2 & Ex. 1. Defendant’s discovery requests would include documents, such as 16 notes and memoranda, relating to communications with clients of the Marron Firm. These 17 documents are fully protected by the attorney-client privilege and the attorney work 18 product doctrine and simply cannot be disclosed to opposing counsel. Hickman, 329 U.S. 19 at 510–11; Admiral Ins. Co. v. U.S. Dist. Court for Dist. of Arizona, 881 F.2d 1486, 1488 20 (9th Cir. 1989) (granting a Writ of Mandamus Petition and vacating a discovery order 21 that compelled disclosure of documents protected by the attorney-client privilege); 22 Hernandez v. Tanninen, 604 F.3d 1095 (9th Cir. 2010) (same). 23 As another example, Defendant’s Request Number 1 seeks “All Documents 24 regarding Hershey or any of its products, including BROOKSIDE® Dark Chocolate, in 25 the last four years,” Request Number 2 seeks “All Communications with any person 26 regarding Hershey or any of its products, including BROOKSIDE® Dark Chocolate, in 27 the last four years,” and and Request Number 12 seeks “All Documents regarding Your 28 attorney advertising or solicitations regarding Hershey or any of its products, including 7 Clark v. The Hershey Co. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF NON-PARTY LAW OFFICES OF RONALD A. MARRON’S MOTION TO QUASH SUBPOENA

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1 BROOKSIDE® Dark Chocolate, in the last four years.” Marron Decl., ¶ 2 & Ex. 1. 2 Defendant’s discovery requests lack decorum and accuse Plaintiffs’ counsel of improper 3 solicitation. These requests are not grounded in fact and, more importantly, the requested 4 information would include documents, such as notes and memoranda, relating to the 5 current case. These documents are protected by the attorney work product doctrine 6 because they were prepared in anticipation of litigation. See In re Grand Jury Subpoena 7 (Mark Torf/Torf Envtl. Mgmt.), 357 F.3d 900, 906 (9th Cir. 2004) (“The work product 8 doctrine…. protects ‘from discovery documents and tangible things prepared by a party 9 or his representative in anticipation of litigation.’”) (quoting Admiral Ins. Co., 881 F.2d 10 at 1494)). Moreover, the requested documents are further protected by the attorney work 11 product doctrine and the attorney client privilege because the requests would trigger 12 privileged communications and work product from prior litigation that the Marron Firm 13 has been involved in. As drafted, Defendant’s document requests would encompass 14 attorney work product and attorney-client communications. The subpoena should 15 therefore be quashed. 16 b. Documents that Are Irrelevant and Not Proportional to the Needs of the 17 Case 18 The Federal Rules of Civil Procedure allow a party to “obtain discovery regarding 19 any nonprivileged matter that is relevant to any party's claim or defense and proportional 20 to the needs of the case, considering the importance of the issues at stake in the action, 21 the amount in controversy, the parties’ relative access to relevant information, the parties’ 22 resources, the importance of the discovery in resolving the issues, and whether the burden 23 or expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 24 26(b)(1). Defendant cannot even satisfy this threshold requirement, let alone the 25 heightened criteria set forth under the Shelton Test. 26 First, none of the requested documents have any relevance to any claims or 27 defenses in this action. This is a straightforward false advertising case and the document 28 requests set forth in Defendant’s subpoena are simply not relevant in this action. 8 Clark v. The Hershey Co. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF NON-PARTY LAW OFFICES OF RONALD A. MARRON’S MOTION TO QUASH SUBPOENA

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1 Defendant are engaging in a fishing expedition that is designed to harass opposing 2 counsel. However, “District courts need not condone the use of discovery to engage in 3 ‘fishing expeditions.’” Daughtery v. Wilson, No. 08CV0408-WQH BLM, 2008 WL 4 4748042, at *1 (S.D. Cal. Oct. 23, 2008), report and recommendation adopted, No. 5 08CV408WQHBLM, 2009 WL 124322 (S.D. Cal. Jan. 16, 2009) (quoting Rivera v. 6 NIBCO, Inc., 364 F.3d 1057, 1072 (9th Cir. 2004)). 7 Second, even if the requested documents are relevant, they are still not important 8 to the issues at stake in this action nor are the requested documents important in resolving 9 the issues in this action. For example, Defendant’s Request Number 19 seeks “Documents 10 sufficient to identify Your external internet technology service providers, including 11 internet service providers, hosts for email servers, and hosts for internet domains,” 12 Request Number 14 seeks “All Documents regarding any agreements You currently have 13 or have had with any entity that is funding the prosecution of any claim in any matter,” 14 and Request Number 16 seeks “All Documents related to any complaints (whether formal 15 or informal) related to You and/or Your business activities in the last four years.” Marron 16 Decl., ¶ 2 & Ex. 1. These Requests are not even tangentially related to any issues in this 17 action and certainly not any issues that are crucial to the preparation of Defendant’s case. 18 Finally, the burden imposed on opposing counsel in complying with the subpoena 19 greatly outweighs its likely benefit. Numerous courts have quashed subpoenas issued to 20 opposing counsel pursuant to the Shelton Test. See, e.g., Chao v. Aurora Loan Servs., 21 LLC, No. C 10-3118 SBA LB, 2012 WL 5988617 (N.D. Cal. Nov. 26, 2012) (granting 22 motion to quash subpoena issued to opposing counsel); GSI Tech., Inc. v. United 23 Memories, Inc., No. 5:13-CV-01081-PSG, 2015 WL 12942202, at *1 (N.D. Cal. Oct. 23, 24 2015) (same); Rhodes v. Sutter Gould Med. Found., No. CIV. 2:12-13 WBS DAD, 2014 25 WL 2091767, at *1 (E.D. Cal. May 16, 2014) (same); M.A. Mobile Ltd. v. Indian Inst. of 26 Tech. Kharagpur, No. C-08-02658-RMW, 2014 WL 819161, at *1 (N.D. Cal. Feb. 28, 27 2014) (same); Graff v. Hunt & Henriques, No. C08-0908 JF (PVT), 2008 WL 2854517, 28 9 Clark v. The Hershey Co. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF NON-PARTY LAW OFFICES OF RONALD A. MARRON’S MOTION TO QUASH SUBPOENA

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1 at *1 (N.D. Cal. July 23, 2008) (same).This Court should likewise quash the subpoena 2 that was issued to the Marron Firm. 3 3. The Requested Documents Are Not Crucial to the Preparation of Defendant’s 4 Case 5 Under the final prong of the Shelton Test, a party must demonstrate that the 6 requested information is crucial to the preparation of its case. Erhart, 2017 WL 840648, 7 at *6 (citing Shelton, 805 F.2d at 1327). This is heavy burden that requires extraordinary 8 circumstances. See Nocal, Inc. v. Sabercat Ventures, Inc., No. C 04-0240 PJH(JL), 2004 9 WL 3174427, at *4 (N.D. Cal. Nov. 15, 2004) (granting motion to quash “because the 10 subpoena subjects counsel to harassment, is unduly burdensome, and seeks irrelevant and 11 privileged information without showing the extraordinary circumstances required by the 12 decision in the Shelton case.”). Defendant will be unable to show that extraordinary 13 circumstances warrant compliance with the subpoena. The document requests are simply 14 not crucial to the preparation of Defendant’s case and are instead are designed to harass 15 opposing counsel. The subpoena should be quashed. 16 B. Alternatively, this Court Should Issue a Protective Order to Protect 17 the Marron Firm From Undue Burden and Expense 18 Federal Rule of Civil Procedure 26(c) provides that “[t]he court may, for good 19 cause, issue an order to protect a party or person from annoyance, embarrassment, 20 oppression, or undue burden or expense[.]” Fed. R. Civ. P. 26(c). Here, good cause exists 21 to issue a protective order. Defendant’s document requests have no bearing on the 22 underlying issues in this litigation. Complying with Defendant’s subpoena would be 23 extremely burdensome to the Marron Firm. Marron Decl., ¶ 4. If the Marron Firm were 24 required to comply with the subpoena, then it would have to review a voluminous number 25 of documents, redact responsive documents for privilege, and then produce a privilege 26 log that would likely contain hundreds of entries. Marron Decl., ¶ 4. The Marron Firm 27 estimates that this process could take up to 40 hours or more to complete. Marron Decl., 28 ¶ 4. Complying with Defendant’s subpoena would also be highly disruptive to the Marron 10 Clark v. The Hershey Co. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF NON-PARTY LAW OFFICES OF RONALD A. MARRON’S MOTION TO QUASH SUBPOENA

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1 Firm’s operations and would detract from time that could be better spent serving its 2 clients. Marron Decl., ¶ 5. Indeed, “[c]ourts have been especially concerned about the 3 burdens imposed on the adversary process when lawyers themselves have been the 4 subject of discovery requests, and have resisted the idea that lawyers should routinely be 5 subject to broad discovery.” In re Subpoena Issued to Dennis Friedman, 350 F.3d 65, 70 6 (2d Cir. 2003). For these reasons, the Court should quash the subpoena or, alternatively, 7 enter a protective order. 8 C. The Subpoena Should Also be Quashed Because it Was Not Served in 9 Accordance with Federal Rule of Civil Procedure 45(a)(4) 10 Under Federal Rule of Civil Procedure 45(a)(4), “[i]f the subpoena commands the 11 production of documents, electronically stored information, or tangible things or the 12 inspection of premises before trial, then before it is served on the person to whom it is 13 directed, a notice and a copy of the subpoena must be served on each party.” Here, 14 Defendant did not serve the subpoena in accordance with these requirements. Instead, 15 Defendant served the subpoena without serving any notice of intent to the parties in the 16 action. See Marron Decl., ¶ 2. Defendant will be unable to prove that it served the required 17 “Notice of Intent” prior to serving the subpoena. The subpoena should therefore be 18 quashed for ineffective service of process. 19 V. CONCLUSION 20 For the foregoing reasons, Non-Party Law Offices of Ronald A. Marron 21 respectfully requests that the Court grant its Motion to Quash Subpoena or, alternatively, 22 enter a Protective Order to prevent undue burden and expense to Plaintiffs’ counsel. 23 24 Dated: February 21, 2019 Respectfully Submitted, 25 26 /s/ Ronald A. Marron 27 RONALD A. MARRON 28 11 Clark v. The Hershey Co. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF NON-PARTY LAW OFFICES OF RONALD A. MARRON’S MOTION TO QUASH SUBPOENA

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LAW OFFICES OF RONALD A. MARRON 1 RONALD A. MARRON [email protected] 2 MICHAEL T. HOUCHIN [email protected] 3 651 Arroyo Drive 4 San Diego, California 92103 Telephone: (619) 696-9006 5 Facsimile: (619) 564-6665 Counsel for Plaintiffs and the Proposed Class 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12 Clark v. The Hershey Co. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF NON-PARTY LAW OFFICES OF RONALD A. MARRON’S MOTION TO QUASH SUBPOENA