United States District Court, D. Utah, Central Division
C. Nielson, Jr. District Judge.
MEMORANDUM DECISION AND ORDER
M. WARNER CHIEF UNITED STATES MAGISTRATE JUDGE.
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). 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) Motion for Protective Order and to
Stay Deposition (the “Original Motion to
Stay'); (3) Amended Motion for Protective Order
and to Stay Deposition (the “Amended Motion to
Stay”);(4) Motion to Quash Dr. Strand's
Subpoena to Testify (the “Motion to
Quash”); (5) Motion to Compel Discovery Responses
(the “First Motion to Compel”); and, (6) Second
Motion to Compel Discovery Responses (the “Second
Motion to Compel”). 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”); (2) Motion for Protective Order to Stay
30(b)(6) Depositions (the “Motion re: 30(b)(6)
Depositions”); and, (3) Motion to Compel Responses to
Requests for Production (the “RFP
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).
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
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).
court first addresses the motions filed by Plaintiffs.
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”). In the ESI Motion, Plaintiffs argue
that Defendant has “abused”
“insufficiencies” in the Stipulated ESI Provision
to “justify inadequate, unreasonable, and unusable
document productions.” 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
Original Motion to Stay and Amended Motion to Stay
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.
Motion to Quash
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
First Motion to Compel
First Motion to Compel asks this court to compel a
“comprehensive examination of USANA's discovery
practices.” 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.
Second Motion to Compel
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.