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Strand v. Usana Health Sciences Inc.

United States District Court, D. Utah, Central Division

June 28, 2019

ELIZABETH STRAND; and AMARA ENTERPRISES, INC., Plaintiffs,
v.
USANA HEALTH SCIENCES, INC., Defendant.

          Howard C. Nielson, Jr. District Judge.

          MEMORANDUM DECISION AND ORDER

          PAUL M. WARNER CHIEF UNITED STATES MAGISTRATE JUDGE.

         District Judge Howard C. Nielson, J r. referred this case to Chief Magistrate Judge Paul M. Warner pursuant to 28 U.S.C. § 636(b)(1)(A).[1] Before the court are Plaintiffs Elizabeth Strand (“Ms. Strand”) and Amara Enterprises, Inc.'s (“Amara”) (collectively, “Plaintiffs”) (1) Motion for Short Form Discovery re: Electronically Stored Information (the “ESI Motion”);[2] (2) Motion for Protective Order and to Stay Deposition (the “Original Motion to Stay');[3] (3) Amended Motion for Protective Order and to Stay Deposition (the “Amended Motion to Stay”);[4](4) Motion to Quash Dr. Strand's Subpoena to Testify (the “Motion to Quash”);[5] (5) Motion to Compel Discovery Responses (the “First Motion to Compel”);[6] and, (6) Second Motion to Compel Discovery Responses (the “Second Motion to Compel”).[7] Also before the court are Defendant USANA Health Sciences, Inc.'s (“USANA” or “Defendant”) (1) Motion to Compel Responses to Interrogatories (the “Motion re: Interrogatories”);[8] (2) Motion for Protective Order to Stay 30(b)(6) Depositions (the “Motion re: 30(b)(6) Depositions”);[9] and, (3) Motion to Compel Responses to Requests for Production (the “RFP Motion”).[10]

         The court has carefully reviewed the written memoranda submitted by the parties. Pursuant to Civil Rule 7-1(f) of the Rules of Practice for the United States District Court for the District of Utah, the court has concluded that oral argument is not necessary and will decide the motions on the basis of the written memoranda. See DUCivR 7-1(f).

         Before addressing the above-referenced motions, the court sets forth the following general legal standards governing discovery. Rule 26(b)(1) provides:

Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.

Fed. R. Civ. P. 26(b)(1) (emphasis added). “‘Relevancy is broadly construed at the discovery stage of the litigation and a request for discovery should be considered relevant if there is any possibility the information sought may be relevant to the subject matter of the action.'” Groesbeck v. Bumbo Int'l, No. 1:13-CV-00090, 2015 WL 365922, at *1 (D. Utah Jan. 27, 2015) (quoting Smith v. MCI Telecomm. Corp., 137 F.R.D. 25, 27 (D. Kan. 1991)). “The district court has broad discretion over the control of discovery, and [the Tenth Circuit] will not set aside discovery rulings absent an abuse of that discretion.” Sec. & Exch. Comm'n v. Merrill Scott & Assocs., Ltd., 600 F.3d 1262, 1271 (10th Cir. 2010) (quotations and citations omitted).

         I. Plaintiffs' Motions

         The court first addresses the motions filed by Plaintiffs.

         a. ESI Motion

         On October 3, 2017, the court entered a stipulated scheduling order, which contains a one-paragraph provision addressing how ESI will be handled in this case (the “Stipulated ESI Provision”).[11] In the ESI Motion, Plaintiffs argue that Defendant has “abused” “insufficiencies” in the Stipulated ESI Provision to “justify inadequate, unreasonable, and unusable document productions.”[12] As a remedy, Plaintiffs ask this court to enter their proposed order governing discovery of ESI. The court declines to do so. The Stipulated ESI Provision governs discovery of ESI in this case. If any party believes that provision has been violated, they may file a motion to compel, or any other appropriate motion to enforce the Stipulated ESI Provision. The ESI Motion is therefore denied.

         b. Original Motion to Stay and Amended Motion to Stay

         First, although Plaintiffs did not withdraw the Original Motion to Stay when they filed the Amended Motion to Stay, the court concludes that the Amended Motion to Stay is the operative motion, and therefore, the Original Motion to Stay is hereby moot. The Amended Motion to Stay seeks a stay of Ms. Strand's deposition, originally scheduled for April 16, 2019. The court finds good cause to grant the motion. The parties are ordered to meet and confer to find a mutually agreeable date to reschedule the deposition within thirty (30) days of the date of this order. If the parties cannot agree, either party may file a motion and the court will set a date for the deposition.

         c. Motion to Quash

         The Motion to Quash seeks an order quashing the subpoena for non-party Dr. Ray Strand (“Dr. Strand”) to testify at a deposition. Dr. Strand is a fact witness, not a party, and therefore the rules governing subpoenas of non-parties apply. The Motion to Quash argues, and the court agrees, that the subpoena does not comply with rule 45 of the Federal Rules of Civil Procedure or 28 U.S.C. § 1821(b) and (d). The Motion to Quash is therefore granted. If Defendant still intends to depose Dr. Strand, Defendant shall re-serve the subpoena in compliance with the applicable rules and statutes.

         d. First Motion to Compel

         The First Motion to Compel asks this court to compel a “comprehensive examination of USANA's discovery practices.”[13] The court will not issue an advisory opinion based on generalized allegations of Defendant's failure to produce discovery. The rules provide a process for discovery and a remedy for review of violations of those rules. If Plaintiffs believe that Defendant has failed to produce discovery in response to specific responses, they must file a motion based on a discrete dispute. The First Motion to Compel is therefore denied.

         e. Second Motion to Compel

         In the Second Motion to Compel, Plaintiffs seek an order compelling responses to requests related to: a) Ariix, LLC (“Ariix”) (Requests for Production (“RFP”) Nos. 17, 18, 22, 23, 29, and Interrogatory No. 8) (collectively, the “Ariix Requests”); and, b) USANA's enforcement action related to the handling of distributorship sales (RFP Nos. 20, 21, 26, and Interrogatory Nos. 5, 8, and 11) (collectively, the “Other Requests”). Plaintiffs' arguments in the Second Motion to Compel focus solely on the relevance of the requested discovery. However, relevance is only one part of the standard for permitted discovery under rule 26(b). Defendant has legitimately raised objections on the basis of proportionality and undue burden. Accordingly, the Second Motion to Compel is denied. Nothing in this order prevents Plaintiffs from refiling their motion if they wish to address the other objections raised by Defendant.

         II. USANA ...


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