Contending that Diamond Foods, Inc. has defended its decision to place “heart-healthy” claims on its packaged walnuts on the advice of counsel, and removed them after a Food and Drug Administration (FDA) warning, also on the advice of counsel, the named plaintiff in a putative class action alleging consumer-fraud against the company is seeking the production of attorney-client communications. Zeisel v. Diamond Foods, Inc., No. 10-01192 (N.D. Cal., filed April 26, 2011). Details about a court order denying the defendant’s motion to dismiss appear in Issue 363 of this Update.

The plaintiff points to instances in responses to interrogatories and deposition
questions where the company defended its decision to link the omega-3 fatty
acids in walnuts to heart health as a good faith bona fide error and indicated
that decisions about the labeling were made with legal counsel’s approval.
Yet, the company has refused to produce any attorney-client communications
on the matter, claiming they are privileged. According to the plaintiff,
the company has implicitly waived the privilege by raising a claim “which in
fairness requires disclosure of the protected communication.” He cites cases
purportedly holding that the privilege is waived “when a defendant uses its
attorney’s advice as a shield and a sword.”

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For decades, manufacturers, distributors and retailers at every link in the food chain have come to Shook, Hardy & Bacon to partner with a legal team that understands the issues they face in today's evolving food production industry. Shook attorneys work with some of the world's largest food, beverage and agribusiness companies to establish preventative measures, conduct internal audits, develop public relations strategies, and advance tort reform initiatives.