False advertising plaintiffs must prove consumer confusion and often rely on market surveys to support their contentions. But like any litigants relying on such surveys, they obviously will want to claim privilege and/or work product protection for their internal communications and communications with their lawyers about planning, implementing and analyzing the results of such surveys.
In Austin’s National Frozen Pops, Inc. v. Jonny Pops, LLC, plaintiff GoodPop relied on “a survey of household grocery shoppers” to argue that the shoppers were misled by defendant Jonny Pops’ marketing. No. 1:24-CV-00716-RP, 2025 U.S. Dist. LEXIS 181286, at *2-3 (W.D. Tex. Sep. 15, 2025). Defendant predictably sought discovery of ” ‘secondary’ documents involving [GoodPop’s] communications related to the survey’s design, administration, or results.” Id. at *3 (citation omitted). The court ultimately rejected Jonny Pops’ effort to discover those communications — noting that plaintiff GoodPop: (1) “does not rely on communications related to the survey to support a claim or defense,” (2) “does not cite any communications from counsel regarding the survey,” (3) “does not rely on the fact that it conducted the survey to support its claims,” and (4) can have its own employees “testify” about the “survey’s development and methodology based on their own knowledge.” Id. at *10, *12.
Significantly, the court cited its two earlier attorney-client privilege decisions involving Pepper Hamilton’s widely reported investigation into Baylor University’s efforts to prevent sexual assaults. The first reached the same conclusion as Austin’s National Frozen Pops, but the second went horribly wrong for Baylor and Pepper Hamilton. Next week’s Privilege Point describes those two cases, which provide useful guidance to litigants conducting surveys or investigations.
