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Diana Stanley, On Behalf of Herself, All v. Bayer Healthcare LLC

November 16, 2011


The opinion of the court was delivered by: Barbara L. Major United States Magistrate Judge


On October 14, 2011, counsel for both parties contacted the Court regarding a discovery dispute, for which the Court set a briefing schedule. ECF No. 30. In accordance with the Court's Order, Defendant filed a motion to compel discovery on October 21, 2011. ECF No. 31. Plaintiff filed an opposition to the motion on October 28, 2011 and Defendant filed a reply on November 2, 2011. ECF Nos. 36 and 43.

Having considered all of the briefing and supporting documents presented, and for the reasons set forth below, Defendant's motion is GRANTED as follows.


This class action arises from a dispute over Phillips' Colon Health Probiotic Caps ("PCH"). Plaintiff Diana Stanley purchased PCH on April 7, 2011 for $15.99. ECF No. 1. Plaintiff alleges that Defendant markets PCH by claiming that PCH's unique combination of probiotic bacteria strains provides digestive benefits and improved immune health unavailable from other similar products. Id. at 4. Plaintiff asserts that this claim is false, misleading and likely to deceive the public. Id. at 2 and 4. Plaintiff alleges that she relied on Defendant's claims when she purchased PCH and "suffered injury in fact and lost money" as a result. Id. at 6. Plaintiff is suing for violations of the Consumer Legal Remedies Act, the Unfair Competition Law, breach of the express warranty, and unjust enrichment created by Defendant's advertising, including its labeling. Id. at 5-6 and 22.

Legal Standard

The Federal Rules of Civil Procedure generally allow for broad discovery, authorizing parties to obtain discovery regarding "any non-privileged matter that is relevant to any party's claim or defense." Fed. R. Civ. P. 26(b)(1). Also, "[f]or good cause, the court may order discovery of any matter relevant to the subject matter involved in the action." Id. Relevant information for discovery purposes includes any information "reasonably calculated to lead to the discovery of admissible evidence," and need not be admissible at trial to be discoverable. Id. There is no requirement that the information sought directly relate to a particular issue in the case. Rather, relevance encompasses any matter that "bears on" or could reasonably lead to matter that could bear on, any issue that is or may be presented in the case. Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978). District courts have broad discretion to determine relevancy for discovery purposes. See Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002). Similarly, district courts have broad discretion to limit discovery where the discovery sought is "unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive." Fed. R. Civ. P. 26(b)(2)(C). Limits also should be imposed where the burden or expense outweighs the likely benefits. Id.

A party may request the production of any document within the scope of Rule 26(b). Fed. R. Civ. P. 34(a). "For each item or category, the response must either state that inspection and related activities will be permitted as requested or state an objection to the request, including the reasons." Id. at 34(b)(2)(B). The responding party is responsible for all items in "the responding party's possession, custody, or control." Id. at 34(a)(1). Actual possession, custody or control is not required. Rather, "[a] party may be ordered to produce a document in the possession of a non-party entity if that party has a legal right to obtain the document or has control over the entity who is in possession of the document. Soto v. City of Concord, 162 F.R.D. 603, 619 (N.D.Cal.1995).


Defendant seeks to have the Court compel Plaintiff to respond to its requests for production ("RFP") concerning Plaintiff's medical records and history (RFP No. 24), Plaintiff's retention agreement with her attorneys in this matter (RFP No. 14), and an unredacted copy of her receipt from the day Plaintiff purchased PCH (RFP No. 1). ECF No. 35-1 at 10. Additionally, Defendant would like for the Court to order Plaintiff to answer deposition questions regarding her medical history, conditions and treatment. Id.

Plaintiff objects to all of Defendant's requests on various grounds including that the requests are overbroad, unrelated to the claims at issue, seek documents that are private, confidential and privileged, and are not reasonably calculated to lead to the discovery of admissible evidence. ECF No. 41 at 4, 8 and 10.

A. Request for Production No. 24 and Related Deposition Questions

Defendant seeks to have the Court order Plaintiff to (a) produce documents responsive to Bayer's RFP No. 24, and (b) answer deposition questions related to her medical history and discussions with physicians about probiotics. ECF No. 35-1 at 7. RFP No. 24, asks Plaintiff for "All of your medical records from 2007 to the present, including but not limited to those reflecting or relating to your colon, digestive, or immune system; constipation; diarrhea; gas; bloating; or diverticulitis." Id. at 4. Defendant argues that it is entitled to this information because Plaintiff has put her "medical condition directly at issue" and because Plaintiff is challenging "the effectiveness of PCH in providing health benefits to her, and alleges that rather than receiving those benefits, she suffered "injury in fact" by purchasing and using the product." Id. at 5-6.

Plaintiff responds by arguing that the requests for her medical records are "overbroad, seek medical records unrelated to the claims at issue, and seek records that are private and confidential." ECF No. 41 at 4. Plaintiff further argues that she has not placed her medical history at issue in this matter because she has not alleged any physical injury. Id. Finally, Plaintiff asks that if the Court does find that the medical records are discoverable, limits be placed to narrow the scope of the medical records that Defendant ...

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