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Youngevity International, Inc. v. Smith

United States District Court, S.D. California

June 22, 2017

YOUNGEVITY INTERNATIONAL, INC. AND JOEL D. WALLACH, Plaintiffs,
v.
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]

          Jill L. Burkhardt United States Magistrate Judge.

         Before 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.[1] (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.)

         I. Background

         Youngevity 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.)

         The 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.)

         The 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.)

         The 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.)

         The 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. (Id.)

         In 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.

         The 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.)

         II. Legal Standards

         Federal Rule of Civil Procedure 26, as recently amended, provides that litigants

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 benefit.

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 ...


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