United States District Court, D. Utah, Central Division
J. Shelby District Judge
Wells Magistrate Judge
MEMORANDUM DECISION AND ORDER DENYING MOTION TO QUASH
B. PEAD UNITED STATES MAGISTRATE JUDGE.
matter is referred to the undersigned from Judge Robert J.
Shelby in accordance with 28 U.S.C. 636(b)(1)(A). Before the
court is Plaintiff Lynn Johnson's Short Form Discovery
Motion to Quash Subpoena Duces Tecum, or in the alternative,
Motion for Protective Order. (ECF No. 90.) After reviewing
the memoranda and relevant case law, the court finds that
oral argument will not assist in adjudicating the motion and
therefore under Local Rule 7-1(f) the court will determine
the motion on the basis of the written papers. As set forth
below, the court will deny the motion to quash, or in the
alternative, for protective order without prejudice.
October 1997, Plaintiff was an independent contractor, or
associate with Defendant USANA, selling USANA's products
and recruiting new associates. USANA is a network marketing
company that uses an independent sales force to sell
nutritional supplements, personal care, and food products
throughout the United States and in many other countries.
Plaintiff enjoyed success as an associate and received
certain awards recognizing her success. On June 21, 2011,
USANA, terminated Plaintiff's “distributorship for
being on a telephone call wherein the benefit plan of another
network marketing company was discussed.” Complaint
¶ 34, ECF No. 2.
to the termination, Plaintiff filed this suit alleging
violations of Sections 1 and 2 of the Sherman Act, 15 U.S.C.
§§ 1, 2, the Utah Antitrust Act, Utah Code Ann.
§§ 76-10-3101 et seq. and for breach of
contract, fraudulent concealment, fraud in the inducement,
and declaratory relief. In essence, Plaintiff claims
Defendant's actions including “illegal and
collusive acts, ” deprived Plaintiff and other
distributors from the benefits of free and open competition,
which led to financial losses and specifically the loss of
Plaintiff's “downline organization she developed
over a thirteen-year period.”
September 12, 2019, Defendant served a subpoena duces tecum
on third party Ariix, a competitor to Defendant. Defendant
alleges Plaintiff violated her agreements when she invited
USANA Associates to participate in an ‘opportunity
call' with Arix ….” Def.'s Op. p. 2, ECF
No. 95. The subpoena seeks inter alia, information concerning
the call, Plaintiff's communications with Arix,
Arix's policies and procedures, the identification of
others associated with Plaintiff, and financial documents.
Specifically, the subpoena requests Ariix to:
1. Produce all documents, including without limitation
communications, relating to the Ariix Call, including,
without limitation, (1) documents reflecting the identity of
participants; (2) marketing materials prepared for, referred
to, identified in, or used during the call; (3) documents
relating to the planning of or preparation for the Ariix
Call; (4) any distributor agreements with any participants in
the Ariix call; and (5) any recordings, transcripts, minutes
or notes of the Ariix Call.
2. Produce all documents including, without limitation
communications, from January l, 2010, to January 1, 2013,
relating to Johnson's contracting with, joining, or
otherwise participating as a distributor with Ariix.
3. Produce all documents demonstrating all earnings Johnson
has received and revenues she has generated from January 1,
2011 to the present from operating a distributorship for, or
otherwise selling products, on behalf of Ariix.
4. Produce all Ariix policies and procedures that have been
in effect from January l, 2010 to the present.
5. Produce all communications between you and Johnson from
January 1, 2010, to January 1, 2013.
6. Produce all communications between you and any person or
entity from January 1, 2010, to January 1, 2013, relating to