United States District Court, S.D. California
YOUNGEVITY INTERNATIONAL, INC. AND JOEL D. WALLACH, Plaintiffs,
TODD SMITH, Defendants. AND RELATED COUNTER ACTION.
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS
AND COUNTERCLAIM DEFENDANTS' MOTION FOR PROTECTIVE ORDER
[ECF NO. 134]
L. Burkhardt United States Magistrate Judge.
the Court is Plaintiffs and Counterclaim Defendants'
motion for a protective order. (ECF No. 134.) Plaintiffs and
Counterclaim Defendants (the “Youngevity
parties”) seek a protective order directing that: (1)
Plaintiff and Counterclaim Defendant Dr. Joel D. Wallach is
not required to respond to Defendants and Counterclaim
Plaintiffs' Interrogatories Numbers 5 and 6; and (2)
Defendants and Counterclaim Plaintiffs may not ask Dr.
Wallach and Counterclaim Defendants Steve Wallach and
Michelle Wallach deposition questions concerning Dr.
Wallach's marital and sexual history. (Id. at
11.) Defendants and Counterclaim Plaintiffs (the
“Wakaya parties”) oppose the motion for a
protective order. (ECF No. 136.) The Court held a telephonic
hearing on the motion on June 16, 2017. (ECF No. 137.)
Having considered the parties' motion and opposition
papers and oral arguments, and for the reasons set forth
below, the Court GRANTS in part and DENIES in
part the Youngevity parties' motion for a
protective order. (ECF No. 134.)
International Corporation (“Youngevity”) and
Wakaya Perfection (“Wakaya”) are both multi-level
marketing companies that sell their products through a chain
of independent distributors. (ECF No. 64 at 4; ECF No. 70 at
42.) The Youngevity parties allege that Wakaya was formed by
former Youngevity distributors for the purpose of competing
against Youngevity. (ECF No. 64 at 4.)
Youngevity parties commenced this lawsuit on March 23, 2016.
(ECF No. 1.) They filed the operative complaint on December
21, 2016. (ECF No. 64.) The Wakaya parties filed
counterclaims on January 18, 2017. (ECF No. 70.)
Youngevity parties allege both federal and state law claims
against the Wakaya parties. Specifically, the Youngevity
parties allege federal claims of violations of the Lanham
Act, as well as state law claims of false advertising, unfair
competition, intentional interference with prospective
economic advantage, intentional interference with a contract,
breach of contract, misappropriation of trade secrets,
misappropriation of likeness, and breach of fiduciary duty.
(ECF No. 64.) The Wakaya parties allege the following state
law counterclaims against the Youngevity parties: breach of
contract, breach of the covenant of good faith and fair
dealing, conversion, tortious interference with existing
contractual relations, tortious interference with prospective
economic advantages, defamation, false light, business
disparagement, unfair competition, and fraudulent or
negligent misrepresentation. (ECF No. 70.)
parties' current dispute involves the discovery of
information related to Dr. Wallach's marital and sexual
history. The Wakaya parties seek this information under the
theory that multiple distributors left Youngevity to join
Wakaya due to Dr. Wallach's inappropriate relationships
with several female Youngevity distributors. (ECF No. 136 at
5-6.) The Wakaya parties argue that the information they seek
is relevant to their defenses to the Youngevity parties'
Lanham Act claims and their claim for misappropriation of Dr.
Wallach's name and likeness. (Id. at 3-4.)
Wakaya parties have propounded their first set of
interrogatories to Dr. Wallach. (See ECF No. 134-4
at 5-11.) At issue here are the Wakaya parties'
Interrogatories Nos. 5 and 6. Interrogatory No. 5 requests
that Dr. Wallach “[i]dentify with particularity each
and every person with whom [he] ha[s] entered into a legal
marriage, domestic partnership, cohabitation, or
substantially similar relationship and the dates on which
such relationship commenced.” (Id. at 11.)
Interrogatory No. 6 requests that Dr. Wallach
“[i]dentify with particularity any Youngevity
Distributor with whom [he] ha[s] had or attempted to have any
degree of intimate physical contact.” (Id.)
Dr. Wallach has objected to the Wakaya parties'
Interrogatories Nos. 5 and 6 on the bases that they are
overbroad, seek information that is not relevant to the
claims and defenses in this case, are not proportional to the
needs of the case, and are meant to harass Dr. Wallach.
addition, Dr. Wallach's deposition is scheduled for June
19, 2017. (ECF No. 134 at 2.) During the telephonic Status
Conference before the Court on June 12, 2017 (see
ECF No. 131), counsel for the Wakaya parties stated that they
intend to ask Dr. Wallach about his marital relationships and
sexual history at the deposition. Counsel also stated that
they intend to ask similar questions at the June 20, 2017 and
June 21, 2017 depositions of Counterclaim Defendants Steve
Wallach and Michelle Wallach. Dr. Wallach's counsel
represented during the June 12, 2017 telephonic Status
Conference that they intend to instruct Dr. Wallach not to
answer any deposition questions that relate to his marital
and sexual history.
Youngevity parties now seeks a protective order that would
allow Dr. Wallach to refrain from responding to the Wakaya
parties' Interrogatories Nos. 5 and 6 and Dr. Wallach,
Steve Wallach, and Michelle Wallach to refrain from
responding to deposition questions that relate to Dr.
Wallach's marital and sexual history. (ECF No. 134.)
Rule of Civil Procedure 26, as recently amended, provides
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 the
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
Fed. R. Civ. P. 26(b)(1). Information within this scope
“need not be admissible in evidence to be
discoverable.” Id. The December 2015 amendment
to Rule 26 reinforced the proportionality factors for
defining the scope of discovery and, thus, under the amended
Rule 26, relevancy alone is clearly no longer sufficient to
obtain discovery. See Fed. R. Civ. P. 26(b)(1)
advisory committee's notes to 2015 amendment. Discovery
must also be proportional to the needs of the case.
Doherty v. Comenity Capital Bank, 16cv1321-H-BGS,
2017 WL 1885677, at *2 (S.D. Cal. May 9, 2017) (citing
Mora v. Zeta Interactive Corp.,
1:16-cv-00198-DAD-SAB, 2017 WL 1187710, at *3 (E.D. Cal. Feb.
10, 2017)). Rule 26 requires that courts “limit the
frequency or extent of ...