DIEBLER v. SANMEDICA INTERNATIONAL, LLC

[Doc. No. 86]

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

HOLLY DEIBLER, et al.,

Plaintiff,

v. Civil No. 19-20155(NLH/MJS)

SANMEDICA INTERNATIONAL, LLC,

at al.,

Defendants.

M E M O R A N D U M O P I N I O N A N D O R D E R

This matter is before the Court on the motion to compel

discovery responses and documents [Doc. No. 86] (the “Motion”)

filed by plaintiff Holly Deibler (“Plaintiff”). The Court is in

receipt of the opposition filed by defendant SanMedica

International, LLC (“Defendant”) [Doc. No. 95] as well as

Plaintiff’s reply [Doc. No. 99]. The Court exercises its discretion

to decide the Motion without oral argument. See FED. R. CIV. P. 78;

L. CIV. R. 78.1. For the reasons set forth herein, Plaintiff’s

Motion will be GRANTED in part and DENIED in part.

I. Background

This case is familiar to the parties and the Court will not

recant its history here beyond what is necessary to resolve the

instant Motion.1 Plaintiff filed this putative class action on

November 13, 2019 challenging the efficacy, advertisement, and

sale of SeroVital-Hgh (“Serovital”), a purported Human Growth

Hormone supplement produced by Defendant. See Complaint [Doc. No.

1]. On October 14, 2020, the parties submitted a proposed joint

discovery plan [Doc. No. 36] and on October 21, 2020, Judge

Schneider held an initial conference and issued scheduling

deadlines [Doc. No. 37]. The schedule contemplated an April 30,

2021 deadline for fact discovery, as to class certification.2

On April 12, 2021, the undersigned conducted a status

conference with the parties and issued an April 19, 2021 Order

[Doc. No. 81], which read in part, “[b]ased on the understanding

of all counsel, as represented during the status conference, the

current April 30, 2021 discovery deadline refers to the deadline

for class certification discovery. See Doc. No. 37. As set forth

in further detail during the telephone conference and in this

Order, this deadline is adjourned but discovery is not stayed.”

Id. ¶ 1. The Order further addressed, in part, the underlying

disputes which have now manifested themselves in Plaintiff’s

1 For a comprehensive discussion of the factual background and

procedural history in this matter, see the Opinion, dated October

28, 2021, addressing Plaintiff’s motion seeking leave to file an

amended complaint. Doc. No. 129.

2 The Order identifies April 30, 2020 as the deadline. This is an

obvious typographical error as the conference occurred on October

21, 2020.

Motion, stating, among other things, that the Court intended to

defer addressing certain discovery issues until after the issuance

of an Order granting and/or denying Plaintiff’s motion to amend

the complaint [Doc. No. 66], directing further meet and confer

efforts, and granting leave for Plaintiff to file a motion to

compel if unresolved issues remained. Id. at ¶¶ 2, 4, 7.3 As such,

this Motion arises in the context of pre-certification discovery

and pending appeal of the Court’s Order granting Plaintiff’s motion

for leave to file a first amended complaint, which is currently

stayed.

In connection with discovery in this action, on November 4,

2020 Plaintiff served Defendant with interrogatories, amended

requests for admission, and document requests, set one, to which

Defendant served objections, responses, documents, and ESI on or

about January 15, 2021. See Br. in Supp. at *11-12 [Doc. No. 86-

1]. The parties then met and conferred to address alleged

deficiencies in the responses as required under LOC. R. CIV. P.

37.1; however, the balance of the disputes remained unresolved.

Id. at *14-15. Consequently, and as already noted, on April 12,

3 On October 28, 2021, the Court issued an Order and Opinion

granting in part Plaintiff’s motion for leave to file an amended

complaint. See Doc. Nos. 129, 130. On November 10, 2021, Defendant

filed an appeal of this decision. See Doc. No. 131. Thereafter,

the Court entered an Order, consented to by both parties, staying

enforcement of the October 28, 2021 Order during the pendency of

Defendant’s appeal. See Doc. No. 140.

2021 the Court granted Plaintiff leave to file the instant Motion

if the dispute could not be resolved by April 30, 2021. See Order,

April 19, 2021 [Doc. No. 81]. Further meet-and-confer efforts

proved unsuccessful4 and on May 14, 2021 Plaintiff brought this

Motion, which seeks the following relief:

1. All Discovery Responses:

a. General & Boilerplate Objections: Order compelling

Defendant to identify any information or documents

withheld in response to Plaintiff’s first set of ROGs,

RFAs, and RFPs, state the factual grounds upon which

Defendant’s objections are based, or otherwise confirm

in writing that no unidentified materials were withheld

or search circumscribed, and provide a privilege log for

any documents withheld on the basis of privilege.

Alternatively, Plaintiff asks this Court to strike

unsubstantiated boilerplate objections from Defendant’s

responses, including the prefatory “General Objections.”

2. Interrogatories:

a. Interrogatory No. 2 (Reasons for Changes to

Packaging/Labels). Order compelling Defendant to state

all reasons for each change made, between November 13,

2013 and present, to SeroVital-hgh’s (“Serovital’s”)

packaging/labels regarding: (1) growth hormone,

secretagogue, “HGH”, and pituitary function; (2) the

associated benefits of increased growth hormone,

secretagogue, “HGH”, and pituitary function; and (3) the

product’s efficacy being clinically proven, including

references to clinical testing, research, or science.

b. Interrogatory No. 3 (Identification of Each Label &

Date in Use): Order compelling Defendant to identify or

produce information and/or documents to which

Defendant’s statement that “Defendant will

supplement/amend this response” refers or,

4 Defendant contends that certain matters raised in this Motion

very well could have been resolved with further meet and confer

efforts, but it appears from the attached email exhibits submitted

with the briefing that a breakdown of communications between the

parties thwarted those efforts. See Def. Br. in Opp., Declaration

of Ronald F. Price, ¶¶ 5-19, Exhibit A [Doc. No. 95-1].

alternatively, striking the ambiguous and evasive

statement that suggests the response is incomplete and

additional information and documents are forthcoming.

c. Interrogatory No. 4 (Individuals Responsible for

Changes to Packaging/Labels): Order compelling Defendant

to identify each individual responsible for: changes to

Serovital’s packaging/labels that Defendant has not

disclosed in response to Interrogatory No. 2,

unidentified/unproduced labels in response to

Interrogatory No. 3, and to provide the withheld contact

information (address, phone number, email address, and

last known mailing address), as well as their employment

information (last known employer and dates of

employment). As an alternative to providing contact

information, Plaintiff seeks an order compelling

Defendant’s counsel of record to accept service of all

subpoenas or process in this action on behalf of

individuals for whom Defendant has withheld their

contact information.

d. Interrogatory No. 6 (Formulation): Order compelling

Defendant to state Serovital’s formulation (active and

inactive ingredients, by quantity, per dose, and per

capsule).

e. Interrogatory No. 7 (Individuals who Prepared

Discovery Responses): Order compelling Defendant to

provide the contact information (address, phone number,

email address, and last known mailing address) and

employment information (last known employer and dates of

employment) for each individual who assisted in

preparing Defendant’s discovery responses. As an

alternative to providing contact information, Plaintiff

seeks an order compelling Defendant’s counsel of record

to accept service of all subpoenas or process in this

action on behalf of individuals for whom Defendant has

withheld their contact information.

f. Interrogatory No. 9 (Serovital Profits/ Margins/

Costs): Order compelling Defendant to state the net

profits, profit margins, and costs, between November 13,

2013 and present, for the sale of Serovital.

g. Interrogatory No. 10 (Identify Affiliates). Order

compelling Defendant to identify (by name, state of

incorporation or principal place of business, line of

business, and nature of affiliation) each entity

affiliated with Defendant, its parents and grandparents

(B.R. Cos., LLC, Basic Research Intermediate, LLC, Basic

Research Holdings, LLC), and/or its predecessor and

exclusive distributor (Basic Research, LLC) as defined

in the interrogatory (which, in sum, includes owners,

partners, business venturers, ostensible affiliates,

entities engaged in joint financial accounting, and

contractors providing marketing, research and

development, legal compliance, distribution, sale, or

customer service for Serovital).

3. Amended Requests for Admissions:

a. Admissions Requests Nos. 17-56 (Liabilities Exceed

Assets). Order compelling Defendant to admit or deny

that Defendant’s, its parents and grandparents’ (Basic

Research Intermediate, LLC, Basic Research Holdings,

LLC, and B.R. Cos., LLC’s) and Defendant’s predecessor

and exclusive distributor’s (Basic Research, LLC’s)

respective debts/liabilities exceed their respective

income/assets for each fiscal year between 2013 and

2020.

4. Defendant’s Document Production:

a. Request for Production No. 1 (200-Thousand Page

Discrepancy re: Documents Produced in Pizana): Order

compelling the parties to use the documents produced in

the Pizana v. SanMedica International, LLC, USDC for the

Eastern District of California Case No. 18-cv-00644-DAD-

SKO, filed April 9, 2018 (“Pizana”) and further

requiring Defendant to identify the bates numbers for

each additional non-duplicative document it produced

solely in this action.

b. Requests for Production Nos. 15-16 (Consumer

Identifying Information): Order compelling Defendant to

produce documents that identify putative class members

(New Jersey purchasers of SeroVital-hgh), and documents

that relate to how Defendant tracks this information,

including documents that can be used to reasonably

identify them.

c. Requests for Production Nos. 25-27 (Corporate

Ownership/Governance, Contracts between Affiliates, and

Financial Condition): Order compelling Defendant to

produce documents regarding Defendant’s, its parents and

grandparents’ (Basic Research Intermediate, LLC, Basic

Research Holdings, LLC, and B.R. Cos., LLC’s) and

Defendant’s predecessor and exclusive distributor’s

(Basic Research, LLC’s) documents regarding their

respective corporate ownership structure and governance,

contracts with affiliates, and financial condition.

d. Document Production (ESI): Order compelling Defendant

to: (1) search all relevant electronic databases and

drives (including hard drives, network drives, and

cloud-based drives) in Defendant’s possession, custody,

and control for responsive documents and either produce

those documents and identify documents withheld from

production based on an objection or in a privilege log;

and (2) produce directory trees for custodians, drives,

and databases that contain any documents or information

requested in discovery.

See Notice of Discovery Motion [Doc. No. 86-1].

II. Legal Standard

Federal Rule of Civil Procedure 26(b)(1) provides that a party

may obtain discovery regarding “any nonprivileged material 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.” FED. R. CIV. P. 26(b)(1).

It is “well recognized that the federal rules allow broad and

liberal discovery.” Pacini v. Macy’s, 193 F.3d 766, 777-78 (3d

Cir. 1999). Relevance is a broader inquiry at the discovery stage

than at the trial stage, see Nestle Food Corp. v. Aetna Cos. &

Surety Co., 135 F.R.D. 101, 103 (D.N.J. 1990), and “[i]nformation

within the scope of discovery need not be admissible in evidence

to be discoverable.” FED. R. CIV. P. 26(b)(1). However, “[a]lthough

the scope of discovery under the Federal Rules is unquestionably

broad, this right is not unlimited and may be circumscribed.” Bayer

AG v. Betachem, Inc., 173 F.3d 188, 191 (3d Cir. 1999).

The precise boundaries of the Rule 26 relevance standard

depend upon the context of each particular action, and the

determination of relevance is within the discretion of the District

Court. See Barnes Found. v. Twp. of Lower Merion, No. CIV. A. 96-

372, 1996 WL 653114 (E.D.Pa. Nov.1, 1996); Int’l Paper Co. v.

Rexam, Inc., No. CIV.A. 11-6494, 2013 WL 3043638, at *3 (D.N.J.

June 17, 2013). When establishing the parameters of discovery

relevance, it is the claims and defenses of the parties, in the

Complaint and other pleadings, which set the guardrails for

discoverable information. Nat’l Union Fire Ins. Co. of Pittsburgh,

PA. v. Becton, Dickinson & Co., No. CV 14-4318, 2019 WL 1771996,

at *3 (D.N.J. Apr. 23, 2019). A court may deny a discovery request

if “[a]fter assessing the needs of the case, the amount in

controversy, the parties’ resources, the importance of the issues

at stake in the action, and the importance of the discovery in

resolving the issues . . . there exists a likelihood that the

resulting benefits would be outweighed by the burden or expenses

imposed as a consequence of the proposed discovery.” Salamone v.

Carter’s Retail, Inc., No. CIV.A. 09-5856, 2011 WL 310701, at *10

(D.N.J. Jan. 28, 2011), aff’d, No. CIV.A. 09-5856, 2011 WL 1458063

(D.N.J. Apr. 14, 2011) (citing Takacs v. Union Cty., No. CIVA 08-

711, 2009 WL 3048471, at *1 (D.N.J. Sept. 23, 2009)); see also FED.

R. CIV. P. 26(b)(1). “The purpose of this rule of proportionality

is to guard against redundant or disproportionate discovery by

giving the court authority to reduce the amount of discovery that

may be directed to matters that are otherwise proper subjects of

inquiry.” Takacs, 2009 WL 3048471, at *3 (D.N.J. Sept. 23, 2009)

(citing Bowers v. Nat’l Collegiate Athletic Ass’n, No. CIV. A. 97-

2600, 2008 WL 1757929, at *6 (D.N.J. Feb. 27, 2008)).

A party seeking discovery bears the burden to “show that

information sought is relevant to the subject matter of the action

and may lead to admissible evidence.” Carver v. City of Trenton,

192 F.R.D. 154, 159 (D.N.J. 2000). Once that initial burden is

met, “the objecting party must demonstrate ‘that the requested

documents either do not come within the broad scope of relevance

defined pursuant to Federal Rule of Civil Procedure 26(b)(1) or

else are of such marginal relevance that the potential harm

occasioned by discovery would outweigh the ordinary presumption in

favor of broad disclosure.’” Baier v. Princeton Off. Park, L.P.,

No. 3:08-CV-5296, 2018 WL 5253288, at *4 (D.N.J. Oct. 22, 2018)

(quoting Barnes Found., 1996 WL 653114, at *1; see also Cristobal

v. Cty. of Middlesex, No. CV164493, 2018 WL 4688337, at *2

(D.N.J. Sept. 28, 2018).

III. Discussion

The Court will address each topic presented in the Motion, in

seriatim.

a. Privilege Log and Withheld Materials

Plaintiff seeks an Order compelling Defendant to identify any

withheld documents and information and provide any necessary

privilege log for documents withheld based on boilerplate

objections, or, alternatively, striking them from Defendant’s

responses. See Br. in Supp. at *18 [Doc. No. 95]; Notice of

Discovery Motion at *2 [Doc. No. 86]. In its Opposition, Defendant

agreed to produce a privilege log. Br. in Opp. at *8. Accordingly,

to the extent Defendant has not already done so, Defendant shall

furnish a privilege log consistent with FED. R. CIV. P. 26(b)(5) by

no later than January 31, 2022.

As to Plaintiff’s broader concern that Defendant may be

withholding additional material based on Defendant’s “blanket list

of objections,” the Court simply has no information to suggest

that Defendant has failed to comply with its Rule 26 obligations

in this regard. Indeed, “[i]t is fundamental to our litigation

system that parties rely on each other’s good faith and

professional responsibilities to comply with the Rules of Civil

Procedure.” Parker v. Atlantic City Board of Education, Civ. No.

15-8712, 2017 WL 662979, *3 (D.N.J. February 17, 2017) (declining

to order the production of a “document” or “relevancy log”).

Defendant has certified and signed their interrogatory responses.

See Declaration of Katherine A. Bruce ¶ 2, Exhibit 1 (Defendant’s

Responses to Interrogatories, Set One [Doc. No. 86-3]. There are

certain specific instances where Defendant objected and either did

not answer or provide documents, which the Court will address in

this Opinion. As to the concern that Defendant may be withholding

other non-privileged materials, that are otherwise called for by

the interrogatories and document production requests and where

preserved “boilerplate objections” were lodged, there is a very

simple solution. Defendant shall advise Plaintiff by January 31,

2022 if it has curtailed its productions or answers and not

provided (or lodged a specific objection) to the relevant non-

privileged material that otherwise is called for by the discovery

request (i.e. a request asked for ten (10) years of records and

Defendant only provided five (5) years of records, held back the

other five (5), and offered no indication that it was withholding

a subset of non-privileged materials based on a specific relevance

objection).5 Again, there is nothing before the Court to suggest

5 It is well settled that when objecting to a discovery request,

an objecting party must state with specificity the grounds for the

objection, and not the familiar litany that the interrogatory or

document production request is overly broad, burdensome,

oppressive, and irrelevant. See NE Technologies, Inc. v. Evolving

Systems, Inc., C.A. No. 06-6061, 2008 WL 4277668, *5 (D.N.J.

this.6 However, as the Court presumes that all parties have been

and are complying with their discovery obligations and the Rules,

this dispute can be easily resolved and should likely need no

further attention from the Court.

b. Interrogatory No. 2 (Reasons for Changes to Packaging/Labels)

Interrogatory No. 2 asks Defendant to “[s]tate all reasons

for each change made, if any, to the content on all versions of

the packaging and labels of SeroVital-hgh within the time period

of November 13, 2013 through the present.” Bruce Decl. ¶ 2, Exhibit

3. Defendant answered as follows:

Objection. This request is vague and ambiguous. This

request calls for information not possessed by

Defendant. This request is harassing, overbroad, overly

burdensome, not reasonably calculated to lead to the

discovery of admissible evidence. There were

approximately 48 packaging variations during the

relevant period. Specifically addressing the reasons for

each change would require many pages of narrative

responses. Without waiving these objections, variations

in packaging were the result of many factors including

capsule count, pricing variations, SKU changes, special

packaging sold at specific retailers to distinguish that

September 12, 2008); see also Harding v. Dana Transport, Inc., 914

F.Supp. 1084, 1102 (D.N.J. 1996) (“[b]road-based, non-specific

objections are almost impossible to assess on their merits, and

fall woefully short of the burden that must be borne by party

making an objection to an interrogatory or document request”).

6 Based on the current briefing and evidence submitted for review,

the Court cannot tell either party what it needs to produce or

supplement document-by-document, but it does remind both parties

of the consequences if it is later found that a party failed to

fully answer discovery requests. See OsteoStrong Franchising, LLC

v. Richter, No. CV 18-1184 KWR/JFR, 2020 WL 7872786, at *6 (D.N.M.

Jan. 30, 2020)

retailer[’]s product from the product sold at other

retailers, emphasizing or deemphasizing certain

marketing messages to determine which message may or may

not resonate with specific consumers at certain times,

and testing marketing messages and packaging. At no

time, however, was any change made as the result of a

lawsuit, threatened lawsuit, regulatory challenge, or

other legal or regulatory reason.

Id.

Plaintiff argues that “Defendant’s response utterly fails to

provide any reason for the slight variations in changes to the

critical representations at issue in his case[.]” Br. in Supp. at

*23. Defendant, on the other hand, maintains that its response is

satisfactory under the rules of discovery because it “responded

with the information it has about these changes including all of

the different kinds of changes that were made.” Br. in Opp. at

*10. Defendant further contends that the changes it identified are

irrelevant to the challenges brought in this lawsuit given that

“at no time . . . was any change made as the result of a lawsuit,

threatened lawsuit, regulatory challenge, or other legal

regulatory reason.” Id. at *11.

Because Plaintiff has identified specific labeling changes

showing Defendant varied the language of its core representations

concerning Serovital’s anti-aging benefits and efficacy, the Court

finds Plaintiff has supplied a colorable basis for this request.7

7 The Court recognizes that in Pizana this same request was denied

“[i]n the absence of any indication that Defendant made any such

changes” in relation to Serovital’s efficacy and benefits. Pizana

At the heart of Plaintiff’s case is the allegation that Defendant

has “affirmatively misrepresented material facts with the intent

that consumers rely upon such concealment and deception in

connection with the efficacy and advertised benefits of the

product.” See Compl. ¶ 62 (Count Two: Violation of New Jersey

Consumers Fraud Act, N.J.S.A. § 56:8-1, et seq.).8 Considering that

v. Sanmedica Int’l, LLC, No. 118CV00644, 2020 WL 6075846, at *8

(E.D. Cal. Oct. 15, 2020), reconsideration denied, No. 118CV00644,

2020 WL 6887752 (E.D. Cal. Nov. 24, 2020). This denial was made

without prejudice to Plaintiff’s right to renew the request should

it be learned during class certification discovery that

Defendant’s answer was incomplete. Id. Here, because Plaintiff has

identified specific changes to the language used for core

representations at issue in this matter, the Court cannot conclude

that the reasons for these changes are entirely or necessarily

irrelevant. In fact, based on the precise changes identified by

Plaintiff in footnotes 21 and 13 of the brief filed in support of

the Motion, the Court finds Plaintiff has satisfied her burden of

showing that the reasons for these changes potentially could bear

on material issues; for instance, whether the product did or did

not ultimately conform to its claims, and whether Defendant knew

or should have known of these facts.

8 Under N.J.S.A. § 56:8-2, “[t]he act, use or employment by any

person of any unconscionable commercial practice, deception,

fraud, false pretense, false promise, misrepresentation, or the

knowing, concealment, suppression, or omission of any material

fact with intent that others rely upon such concealment,

suppression or omission, in connection with the sale or

advertisement of any merchandise or real estate, or with the

subsequent performance of such person as aforesaid, whether or not

any person has in fact been misled, deceived or damaged thereby,

is declared to be an unlawful practice; provided, however, that

nothing herein contained shall apply to the owner or publisher of

newspapers, magazines, publications or printed matter wherein such

advertisement appears, or to the owner or operator of a radio or

television station which disseminates such advertisement when the

owner, publisher, or operator has no knowledge of the intent,

design or purpose of the advertiser.”

the modified representations regarding Serovital’s antiaging

benefits and clinically proven efficacy are central to the issues

in this action, Plaintiff is reasonably entitled to know which of

the enumerated reason(s) (or other reasons not specifically

listed)9 correspond to those certain identified changes to the

label.10 Provision of this general foundational information is

warranted given the imprecise presentation of Defendant’s response

and to ensure Plaintiff is not needlessly impeded in exploring the

relevant subject of whether Defendant’s labeling practices were in

furtherance of the alleged deception and concealment. Plaintiff’s

inevitable investigation into the numerous labeling variations and

their connection to Defendant’s non-exhaustive list of asserted

reasons would likely be marred by inefficiency and waste valuable

time and resources. That is, Plaintiff may ultimately be able to

identify the reasons for changes to key claims and further develop

the record by conducting additional discovery (for example, in the

form of extensive deposition testimony), but only through

unnecessary effort and with lower efficiency and guaranteed delay.

9 Defendant indicated the reasons for the changes are attributable

to “many factors including” those six ones specifically

identified. This appears to leave open the possibility that the

list provided is not exclusive. That said, the Court is not making

a judgment that Defendant’s list is necessarily incomplete.

10 As Plaintiff points out, that Defendant did not change the

labeling for Serovital due to litigation does not make them

irrelevant.

Defendant should therefore, by January 31, 2022, amend its response

by correlating the relatively discreet changes identified by

Plaintiff, namely labeling changes referring to Serovital’s impact

on growth hormone, secretagogue, HGH, and pituitary function

including the associated benefits; describing Serovital’s

antiaging benefits; and implying Serovital’s clinically proven

efficacy (including references to clinical testing, research, or

science), to the specific reason(s) asserted.11 Requiring Defendant

to qualify only those changes made to claims specifically relating

to the Product’s efficacy and benefits appropriately limits the

burden to Defendant and gets to the core issues in this case.

c. Interrogatory No. 3 (Identification of Each Label & Date

in Use)

Interrogatory No. 3 asks Defendant to “[i]dentify, by listing

the bates numbers of all relevant documents, each label iteration

and the time period it was in use.” Bruce Decl. ¶ 2, Exhibit 1.

The parties do not dispute that Defendant responded to this

Interrogatory by identifying labels and dates in use. However,

Plaintiff takes exception to the way Defendant ended its response

by “Defendant will supplement/amend this response.” See Br. in

Supp. at *22. Plaintiff requests that Defendant amend the response

to state that Defendant “reserves its right” to amend or

11 It should be clear that the Court is not judging whether

Defendant’s list of reasons provided is in any way incomplete.

supplement. Id. Otherwise, Plaintiff argues, the list cannot be

relied upon as comprehensive. Id. Defendant, on the other hand,

contends this statement is necessary and reflects its ongoing

discovery obligations given the likelihood of future labeling

changes. Br. in Opp. at *8.

Despite its general interposed objections, Defendant does not

appear to be resisting discovery on this interrogatory.12 Rather,

as Defendant advises, the list identified “represents the changes

as determined from Defendant’s records at the time of the discovery

requests.” Id. at *9. Under FED. R. CIV. P. 33(b), parties responding

to interrogatories have a duty to “provide true, explicit,

responsive, complete, and candid answers[.]” Hansel v. Shell Oil

Corp., 169 F.R.D. 303, 305 (E.D. Pa. 1996). Additionally, FED. R.

CIV. P. 26(g)(1) requires that a party or attorney must sign the

response, certifying that the “disclosure is complete and correct

12 As already addressed in this Opinion, to the extent Defendant

is withholding responsive information on the basis of its generic

objections to Interrogatory No. 3 – something that the Court simply

has no reason to infer - these objections are inadequate. See

Josephs v. Harris Corp., 677 F.2d 985, 992 (3d Cir. 1982) (“[T]he

mere statement by a party that the interrogatory was overly broad,

burdensome, oppressive and irrelevant is not adequate to voice a

successful objection to an interrogatory. On the contrary, the

party resisting discovery must show specifically how . . . each

interrogatory is not relevant or how each question is overly broad,

burdensome or oppressive.”) (internal citation and quotations

omitted). However, as Defendant does not appear to have relied on

its boilerplate objections, there is no reason for this Court to

order them stricken. See Speed RMG Partners, LLC v. Arctic Cat

Sales Inc., No. 20-CV-609, 2021 WL 5087362, at *3 (D. Minn. Jan.

5, 2021).

as of the time it is made” to the best of her or his “knowledge,

information, and belief formed after a reasonable inquiry.” FED.

R. CIV. P. 26(g)(1). That Defendant stated it “will

supplement/amend” its response, under these circumstances is not

an indication that the responses are incomplete or that presently

available information is being withheld. And the Court has been

presented with no credible reason to question the veracity of

Defendant’s representation that this language simply reflects its

intention to supplement the response in accordance with FED. R.

CIV. P. 26(e) considering the likelihood of future labeling

changes.13 14

Plaintiff insists that Defendant must state it “reserves its

rights” in order for the list to be relied upon as comprehensive.

In reality, this is a semantic difference without any practical

13 Rule 26(e) provides that “[a] party who has made a disclosure

under Rule 26(a)—or who has responded to an interrogatory, request

for production, or request for admission—must supplement or

correct its disclosure response . . . in a timely manner if the

party learns that . . . the disclosure or response is incomplete

or incorrect, and if the additional or corrective information has

not otherwise been made known to the other parties during the

discovery process or in writing.” FED. R. CIV. P. 26(e)(1)(A).

14 A greater degree of skepticism might be warranted, however, if

Defendant answered indicating all responsive documents will be

produced when, in fact, Defendant had no responsive documents in

its possession, custody, or control at the time the response was

given. See Gipson v. Sw. Bell Tel. Co., No. CIVA 08-2017, 2009 WL

790203, at *20 (D. Kan. Mar. 24, 2009), objections sustained in

part and overruled in part, No. 08-2017, 2009 WL 4157948 (D. Kan.

Nov. 23, 2009).

weight. A statement that Defendant “reserves the right” to

supplement the responses would do nothing more than state the

obvious: all parties have a duty to supplement discovery responses

“if the party learns that in some material respect the disclosure

or response is incomplete or incorrect” or “as ordered by the

court.” See FED. R. CIV. P. 26(e). Contrary to Plaintiff’s apparent

contention, a statement that Defendant reserves its right to

supplement “does not clarify whether [Defendant] has (or does not

have) additional information to completely answer the

interrogatory.” Zapata v. IBP, Inc., No. CIV. A. 93-2366, 1995 WL

293931, at *1 (D. Kan. May 10, 1995).

Accordingly, the Court declines to order the relief sought in

connection with Interrogatory No. 3. There will be continued

discovery conferences in this matter and the Plaintiff is free to

address this issue then if Plaintiff believes some information is

missing.

d. Interrogatory No. 4 (Individuals Responsible for Changes to

Packaging/Labels) / Interrogatory No. 7

Interrogatory No. 4 asks Defendant to “[i]dentify (by stating

the name, address, phone number, email address, last known mailing

address, last known employer, and dates of employment) all

individuals responsible for creating or approving the identified

changes to the content on the packaging and labels of SeroVital-

hgh.” Bruce Decl. ¶ 2, Exhibit 1. Defendant answered as follows:

Objection. This request is vague and ambiguous. Subject

to and without waving the foregoing: Brian Robles, Gina

Daines, Stephanie Davis, Mitchell K Friedlander, Jeff

Wasden, Travis MacKay, John Volturo and Leo Trautwein,

all of who may be contacted through Defendant’s counsel

of record.

Id. Interrogatory No. 7 requests contact and employment

information (last known employer and dates of employment) for

individuals who assisted in preparing discovery. Defendant

responded as follows:

Objection. Interrogatory No. 7 is overly broad and

unduly burdensome. Without waiving this objection,

substantive work on these responses was provided by

Steven Garff, Price Parkinson & Kerr, Ronald Price,

Price Parkinson & Kerr, Jason Kerr, Price Parkinson &

Kerr, Jim Kreek, on behalf of SanMedica, LLC, Stephanie

Davis, on behalf of SanMedica, LLC, Amy Heaton, on behalf

of SanMedica, LLC, Brokk Mowrey, on behalf of SanMedica,

LLC, and Rick Velasquez on behalf of SanMedica, LLC.

Id.

First, with respect to Interrogatory No. 4 only, Plaintiff

argues that because Defendant’s response regarding the

identification of labels and reasons for their changes appear

incomplete, Defendant’s response to Interrogatory No. 4 requiring

the identification of individuals responsible for the changes must

be deficient as well. Reply Br. at *2. This form of non sequitur

reasoning assumes that because Defendant failed to correlate the

identified changes to the reasons for the changes in response to

Interrogatory No. 2, it also failed to appropriately identify

witnesses who can attest to the underlying rationale for those

changes. Because Plaintiff has offered no non-speculative basis to

support this assertion, the Court declines to grant any specific

relief in connection with this request at present. That being said,

Defendant is reminded of its obligation to supplement its response

to Interrogatory No. 4 to the extent it becomes necessary, if at

all, and as occasioned by its supplement to Interrogatory No. 2

discussed supra.

Second, for both Interrogatory No. 4 and Interrogatory No. 7,

Plaintiff contends that Defendant’s responses are deficient for

failing to include the identified individuals’ contact and

employment information. Br. in Supp. at *23-26. Instead of

providing the contact information, Defendant directed Plaintiff to

contact the individuals through Defendant’s counsel of record. See

Bruce Decl. ¶ 2, Exhibit 1. The parties appear to have reached a

verbal agreement whereby Defendant would amend or supplement its

responses to provide the employment information of individuals

responsible for label changes in lieu of providing their contact

information, and accept service of subpoenas on their behalf in

connection with this action. Br. in Supp. at *15; Br. in Opp. at

*13; Reply Br. at *5. However, each points the finger at the other

for the ensuing failure to execute a signed stipulation. Br. in

Opp. at 13; Reply Br. at *5. Because resolution of these issues

appeared imminent before the parties became embroiled in this

dispute, and given Defendant is not standing on any particular

objection initially raised, the Court will direct the parties to

re-initiate meet-and-confer efforts. The Court is confident the

parties can jointly prepare a stipulation providing for verified

amended responses in exchange for the acceptance of service of

subpoenas.15 This shall be accomplished by January 31, 2022.

e. Interrogatory No. 6 (Formulation)

Interrogatory No. 6 asks Defendant to “[s]tate each

formulation of SeroVital-hgh, the time period it was in use, and

all reasons for each change made, if any, to the formulation of

15 To the extent the individuals identified in Defendant’s response

were revealed in its initial disclosures, provision of contact

information is warranted under Rule 26(a)(1)(A). “Rule 26(a)

(1)(A) is clear. Parties are required to disclose names and contact

information” of each individual likely to have discoverable

information. F.T.C. v. Dutchman Enterprises, LLC, No. 2:09-CV-141,

2010 WL 3034521, at *3 (D.N.J. Aug. 2, 2010). The Court notes that,

insofar as Plaintiff seeks to use Rule 26(a)(1) as the basis to

compel disclosure of contact information for individuals not

identified in its initial disclosures (and not otherwise

identified as persons with knowledge that Defendant may use to

support its claims or defenses), Plaintiff’s reference to this

provision is misplaced. Plaintiff appears to rely on an outdated

portion of the 1993 Advisory Committee Notes to Rule 26, which

explained that “[a]ll persons with such [discoverable] information

should be disclosed, whether or not their testimony will be

supportive of the position of the disclosing party.” In 2000, the

Advisory Committee clarified that “[t]he scope of the disclosure

obligation is narrowed to cover only information that the

disclosing party may use to support its position.” Advisory

Committee Notes to FED. R. CIV. P. 26. Accordingly, “[a] party is

no longer obligated to disclose witnesses or documents, whether

favorable or unfavorable, that it does not intend to use.” Id.

Therefore, the issue before the Court is not whether the contact

and employment information should be disclosed under FED. R. CIV.

P. 26(a)(1)(A()(i), but whether Defendant is obligated to disclose

it under FED. R. CIV. P. 26(b)(1).

SeroVital-hgh made by Defendant since it was first sold.” Bruce

Decl. ¶ 2, Exhibit 1. Defendant responded by indicating there have

been no formulation changes and argues in its Opposition that

Plaintiff’s demand is moot because the formulation is contained in

Defendant’s document production at SM00001-004105; SM004081-004105

and is available in public patent documents. Id.

Under FED. R. CIV. P. 33(d), a party is entitled to respond by

reference to business records when the burden of answering the

interrogatory is substantially the same for the responding and

interrogating party. See FED. R. CIV. P. 33(d). Defendant’s

reference to more than 4,000 pages of documents (SM00001-004105)

is therefore inadequate.16 Though Defendant has made Serovital’s

active ingredients publicly available, the patents do not

explicitly state the quantities of each ingredient. See Reply Br.

at *6. Moreover, Defendant has not asserted any specific objections

to the Interrogatory, and the Interrogatory is not otherwise

facially objectionable in the Court’s view. “Objections initially

raised but not supported in response to the motion to compel are

16 “The responding party may not avoid answers by imposing on the

interrogating party a mass of business records from which the

answers cannot be ascertained by a person unfamiliar with them.”

In re G-I Holdings Inc., 218 F.R.D. 428, 438 (D.N.J. 2003).

“Rather, the responding party has a ‘duty to specify, by category

and location’ the records from which he knows the answers to the

interrogatories can be found.” Id. (quoting R.W. Thomas Const.

Management Co., Inc. v. Corrugated Services, Inc., 1995 WL 592539

at *1 (E.D.Pa.1995).

deemed abandoned.” In re Bank of Am. Wage & Hour Emp. Pracs.

Litig., 275 F.R.D. 534, 538 (D. Kan. 2011).

The Court will therefore grant the relief sought by Plaintiff

in connection with Interrogatory No. 6 and Defendant will be

ordered to amend its response by January 31, 2022, accordingly.

f. Interrogatory Nos. 9-10, Requests for Production Nos. 25-

27; Requests for Admission Nos. 17-56 (Affiliates and

Defendant’s Finances)

Interrogatory No. 9 seeks the gross revenue, the net profits,

the profit margins, and the costs associated with sales of the

Serovital from 2013 to present. Bruce Decl. ¶ 2, Exhibit 1.

Interrogatory No. 10 asks Defendant to identify each entity

affiliated with Defendant. Id. Requests for Production Nos. 25-27

seeks documents that reflect the financial condition and corporate

ownership structure of SanMedica and alleged affiliated entities.

Id. Requests for Admission Nos. 17-56 ask Defendant to admit or

deny that Defendant, its parents and grandparents, and predecessor

and exclusive distributor’s respective debts/liabilities exceed

their respective income/assets for each fiscal year between 2013

- 2020. Id.

To avoid a piecemeal review and scattered production of

potentially overlapping financial and corporate structure

discovery, the Court will defer ruling on these topics pending the

outcome of Defendant’s appeal [Doc. No. 131] of the Court’s Order

[Doc. No. 130] granting Plaintiff’s motion for leave to file an

amended complaint [Doc. No. 66]. Plaintiff may renew its

application seeking these requested materials once the appeal is

decided and after conferring with the Defendant.17 This arrangement

lends itself to a complete and efficient disposition of these

issues and will afford a consistent and narrowed record for the

parties and the Court to draw from. The interests of efficiency

and economy provide good cause to defer ruling on these issues in

dispute. Further, because discovery at this stage is focused on

that needed for class certification, there will be no unfair

prejudice to either party.

g. Requests for Production Nos. 15-16 (Customer Identifying

Information)

Request for Production No. 15 seeks documents identifying

Serovital purchasers in New Jersey from 2013 to present, including

contact information. Bruce Decl. ¶ 22, Exhibit 3. Request for

Production No. 16 seeks documents regarding how Defendant tracks

customer information and how that information can be used to

identify them. Id. Defendant refused to provide any documents in

response to these requests, objecting that they are “premature as

17 This is consistent with the Court’s April 19, 2021 Directive

that prior to the issuance of an order by the Court granting or

denying Plaintiff’s motion to amend the complaint, the parties’

discovery activities shall be limited to discovery concerning

matters that are not reasonably implicated by Plaintiff’s pending

motion to amend. As the entry of the Order granting that motion in

part is currently stayed, the parameters of the April 19, 2021

Order remain in place.

no class has been certified and, therefore, harassing overbroad,

overly burdensome, not proportional to the needs of this

litigation, not relevant to any party’s claims or defenses, and

not reasonably calculated to lead to the discovery of admissible

evidence.” Id.

Plaintiff purportedly seeks this information to investigate

the materiality of the challenged labeling claims regarding growth

hormone and antiaging benefits, determine whether those attributes

were important to consumers and motivated their purchase, and to

the extent necessary, conduct any consumer surveys. Br. in Supp.

at *36-37. In support of this position, Plaintiff cites to the

discovery decision in the related action pending in the Eastern

District of California, Pizana v. SanMedica Int’l, LLC, No.

118CV00644, 2020 WL 6075846, at *8 (E.D. Cal. Oct. 15, 2020),

reconsideration denied, No. 118CV00644, 2020 WL 6887752 (E.D. Cal.

Nov. 24, 2020), for the proposition that surveys in consumer

protection cases are pertinent to questions of predominance,

typicality, and commonality under Rule 23.18 Reply Br. at *12.

Defendant contends, however, that discovery of personal

identifying information for putative class members before

certification is inappropriate where Plaintiff cannot show how the

information will have any bearing on whether Defendant has reliable

18 Defendant concedes numerosity.

scientific evidence supporting its representations or whether a

class should be certified. Br. in Opp. at *18-19.

Courts have reached different conclusions regarding the

extent to which pre-certification discovery of the identify of

potential class members is proper. Burkhart-Deal v. Citifinancial,

Inc., No. 8-1289, 2009 WL 1750915, at *3 (W.D. Pa. June 19, 2009);

compare Artis v. Deere & Co., 276 F.R.D. 348, 352 (N.D. Cal. 2011)

(“The disclosure of names, addresses, and telephone numbers is a

common practice in the class action context.”), and Kane v. Nat’l

Action Fin. Servs., Inc., No. CIV.A. 11-11505, 2012 WL 1658643, at

*1 (E.D. Mich. May 11, 2012), with Enslin v. Coca-Cola Co., No.

2:14-CV-06476, 2016 WL 7013508, at *2 (E.D. Pa. May 13, 2016)

(stating that “[t]he names and addresses of class members are not,

per se, within the scope of legitimate discovery”)(quoting

Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 353-56 (1978)),

and McLaughlin on Class Actions § 11:1 (17th ed.) (stating “courts

ordinarily will not permit putative class counsel to obtain

discovery of class members’ identities at the precertification

stage”). Notwithstanding these seemingly different approaches,

“[t]he most apropos guiding principles to be drawn from the

relevant authority are not bright-line rules, but concepts that

rest on the basic purposes and underlying rules of civil discovery,

and that allow some degree of sensitivity to the facts and the

parties before the Court.” Burkhart-Deal, 2009 WL 1750915, at *3.

Indeed, as the Supreme Court recognized, “[t]here may be instances

where class members’ names and addresses could be relevant to

issues that arise under Rule 23 . . . or where a party has reason

to believe that communication with some members of the class could

yield information bearing on these or other issues.” Oppenheimer

Fund, Inc., 437 U.S. at 354 n. 20. Though the Supreme Court

cautioned that even those instances likely would not “require

compilation of the names and address of all members of a large

class.” Id. Additionally, the Court observed “[t]here is a

distinction in principle between requests for identification of

class members that are made to enable a party to send notice and

requests that are made for true discovery purposes.” Id. Because

discovery has been staged in this case [Doc. No. 81, ¶¶ 1, 3] and

this action remains in the pre-certification stage, the relevance

and proportionality of Plaintiff’s request must be viewed through

the lens of FED. R. CIV. P. 23.

The Court finds Plaintiff’s request is premature as it has

not been established that information identifying potential class

members is sufficiently relevant and proportional to the needs of

the case at the pre-certification stage. As previously addressed,

Plaintiff’s request purportedly seeks to uncover information about

whether and to what extent Defendant’s claims regarding growth

hormone and antiaging benefits motivated the purchasing decisions

of potential class members. Stated differently, Plaintiff wants to

better understand which alleged misrepresentations were “material”

under the NJCFA. See N.J.S.A. § 56:8-2.

The principal issue in this action is whether Defendant has

competent and reliable scientific evidence to support its key

representations (each of which Plaintiff contends are false), or

rather if Serovital is no more effective for its advertised

purposes than a placebo. As set forth in Plaintiff’s Motion,

“[t]his entire putative class action claim is based on Serovital’s

misleading and false labeling and advertising claims regarding

growth hormone and antiaging benefits that Defendant uniformly

misrepresents on each and every label used during the Class

Period.” Br. in Supp. at *21. According to Plaintiff,

Every unit of Product sold by Defendants conveys a consistent

false and misleading message to consumers—that the Product

causes a “682% mean increase in HGH levels,” thereby causing

“wrinkle reduction, decreased body fat, increased lean muscle

mass, stronger bones, improved mood, [and] heightened sex

drive” so as to make “users look and feel decades – not years,

but DECADES – younger.” These representations are also made

on Defendants’ official website at www.serovital.com. []

Because Defendants represent that the Product will cause a

“682% mean increase in HGH levels” and that HGH will provide

certain benefits listed on the Product label, consumers

reasonably believe that the HGH increase from the Product

will cause wrinkle reduction, decrease body fat, increase

lean muscle mass, strengthen bones, improve mood, and

heighten sex drive such that they will “lookand feel decades

– not years, but DECADES – younger” – as claimed on the

Product label.

Compl. ¶¶ 19-20.

Viewing the requests against this context and through the

lens of Rule 23’s certification criteria, the Court finds Plaintiff

has failed to make a requisite showing of relevance and

proportionality to merit discovery of customer identifying

information at this stage in the litigation. Specifically,

Plaintiff has not shown that customer identifying information (or

extrinsic evidence in the form of consumer surveys obtained

therefrom) is sufficiently relevant to class-certification issues.

Plaintiff’s proffered basis in relevance – inquiry into the

“materiality” prong of N.J.S.A. § 56:8-2 - does not warrant

disclosure of customer identifying information at the pre-

certification stage in this case where (1) plaintiff has not shown

that the meaning of the alleged deception and the uniformity of

the exposure are likely to be in dispute;19 (2) each of the key

19 In Kosta, the court found the alleged misleading statements were

unable to be shown on a class-wide basis using common proof where

“the variations [we]re so great that at least half the challenged

products would not evidence the violations alleged, either because

they did not appear on the products or because the [challenged

statements] were truthful.” Kosta v. Del Monte Foods, Inc., 308

F.R.D. 217, 229 (N.D. Cal. 2015). As a result, the court found

that there was “no cohesion among the members because they were

exposed to quite disparate information.” Id. (quoting Stearns v.

Ticketmaster Corp., 655 F.3d 1013, 1020 (9th Cir. 2011)). The

present case, however, appears more akin to McCormick where the

court concluded materiality was a common question for purposes of

Rule 23(b)(3) upon finding that the meaning of the allegedly

deceptive messaging and the uniformity of exposure were

undisputed. In re McCormick & Co., Inc., Pepper Prod. Mktg. & Sales

Pracs. Litig., 422 F. Supp. 3d 194, 255 (D.D.C. 2019), leave to

appeal denied sub nom. In re McCormick & Co., Inc., No. 19-8003,

2019 WL 7602224 (D.C. Cir. Sept. 20, 2019). Here, Plaintiff alleges

a small core of consistent misrepresentations and omissions made

on “every unit” sold. Compl. at ¶¶ 19-20; see Stephenson v. Bell

Atl. Corp., 177 F.R.D. 279, 291 (D.N.J. 1997) (“To demonstrate the

requisite predominance of common issues of fact and law in a (New

Jersey Consumer Fraud Act) case such as this, plaintiffs must

identify a small core of misrepresentations and omissions made to

all, or most, of the class members.”); see also Elias v. Ungar’s

Food Prod., Inc., 252 F.R.D. 233, 249 (D.N.J. 2008) (“[T]here are

allegations that uniform statements regarding fat and calories

were made to all customers that were misleading and reasonably

could be said to have made a difference in a decision to purchase

the product . . . and so it would be appropriate to presume there

is a connection between the statements and the purchase of a

product different from that which was promised.”) (internal

citations omitted) (citing Hannan v. Weichert S. Jersey, Inc., No.

A-5525-05T5, 2007 WL 1468643, at *13 (N.J. Super. Ct. App. Div.

May 22, 2007). If discovery reveals that Defendant varied these

small core representations in any consequential respect (i.e.

discovery compelled re: Interrogatory #2/labeling changes) that

would contradict the Complaint’s allegations at ¶¶ 19-20 or call

into question the uniformity of exposure to consumers (for

instance, if differences in its products’ labels cause prospective

consumers to understand the representations differently. See

Werdebaugh v. Blue Diamond Growers, No. 12–2724, 2014 WL 2191901,

at *12–14, 18 (N.D. Cal. May 23, 2014)), then Plaintiff may re-

raise the issue at the appropriate time. The same applies in the

event Plaintiff can show a likely question or dispute as to any

inherent ambiguity of the misrepresentation. See In re 5-Hour

Energy Mktg. & Sales Pracs. Litig., No. ML132438, 2017 WL 2559615,

at *8 (C.D. Cal. June 7, 2017) (concluding that plaintiffs had not

shown that materiality was susceptible to common proof in part

because “the meaning of the term ‘energy’ [was] disputed,” and

plaintiffs “ha[d] offered no evidence of a common definition of

‘energy’ among a substantial number of consumers”); Pelayo v.

Nestle USA, Inc., No. 13–5213, 2013 WL 5764644, at *4–5 (C.D. Cal.

Oct. 25, 2013) (discussing lack of a common understanding of the

term “all natural” that is shared by reasonable consumers).

Plaintiff has not yet shown any such issues.

representations made about Serovital are alleged to be baseless;20

(3) and an objective, reasonable person standard applies.21

20 In Lee, the plaintiff sought to certify a class of purchasers

of a dietary supplement that the defendant marketed as a weight-

reduction product that also lessened anxiety and elevated moods.

Lee v. Carter-Reed Co., 203 N.J. 496, 523-24 (2010). The New Jersey

Supreme Court held that the plaintiff’s NJCFA claim satisfied the

predominance requirement because “[w]hen all the representations

about the product are baseless, a trier of fact may infer the

casual relationship between the unlawful practice – the multiple

deceptions – and the ascertainable losses.” Id. at 580. In Marcus,

the Third Circuit explained that Lee “involved a worthless product

for which all representations were baseless” and “[t]here was no

reason for the Lee Court to believe that a significant number of

class members would, despite knowing that the product was

worthless, purchase [it] anyway.” Marcus v. BMW of N. Am., LLC,

687 F.3d 583, 612 (3d Cir. 2012). This conclusion simply reflects

the common-sense principle that the average consumer generally

will not pay something for nothing, which is in accord with

Plaintiff’s own theory of the case. See Garner v. Healy, 184 F.R.D.

598 (N.D. Ill. 1999), (the district court certified a class of

consumers who purchased a substance represented as “car wax” that

allegedly contained no wax, finding that “if Plaintiffs paid money

for a ‘wax,’ but instead received a worthless ‘non-wax’ product,

then issues of proximate cause would be relatively simple to

resolve on a classwide basis.”)

21 Under the New Jersey Consumer Fraud Act (“NJCFA”), the issue of

whether a particular statement on a product’s packaging or labeling

is false, deceptive, or materially misleading is evaluated

according to an objective “average consumer” standard. See Barry

v. Arrow Pontiac, Inc., 100 N.J. 57, 69 (1985); see also Eberhart

v. LG Elecs. USA, Inc., No. CV 15-1761, 2015 WL 9581752, at *4

(D.N.J. Dec. 30, 2015) (“[I]n an action under the Consumer Fraud

Act, the test is whether an advertisement has the capacity to

mislead the average consumer.”) (internal quotations omitted).

Because the question of materiality “is an objective one, involving

the significance of an omitted or misrepresented fact to a

reasonable [consumer], materiality can be proved through evidence

common to the class.” Amgen Inc. v. Connecticut Ret. Plans & Tr.

Funds, 568 U.S. 455, 467 (2013) (internal quotations omitted).

“[A] defendant’s argument that ‘consumers have a variety of reasons

for purchasing [a product]’ is ‘a merits dispute as to

materiality,’ and is therefore a dispute ‘that can be resolved

In short, this is not a case in which the asserted relevant

information — i.e., whether the class can prove materiality —

portends some apparent dissimilarity among putative members that

would require surveys for class-certification purposes. Rather,

accepting Plaintiff’s theory, this is a situation where there would

seem to be no other explanation for the class members’ behavior in

response to the challenged representations besides their belief

that Serovital’s ability to increase HGH levels would lead to

health benefits.22

Accordingly, this case arguably requires less

qualitative information from potential class members at the

pre-certification stage than might be warranted, for

instance, in an employment-related case where questions about

whether employees were subject to the same violative practices

often loom large.23 Upon scratching beneath the surface, the

asserted nexus between Plaintiff’s justification for the

classwide.’” McCormick, 422 F. Supp. 3d at 256. See also Hadley v.

Kellogg Sales Co., 324 F. Supp. 3d 1084 (N.D. Cal. 2018).

22 See Compl. ¶ 20 (“Because Defendants represent that the Product

will cause a ‘682% mean increase in HGH levels’ and that HGH will

provide certain benefits listed on the Product label, consumers

reasonably believe that the HGH increase from the Product will

cause wrinkle reduction, decrease body fat, increase lean muscle

mass, strengthen bones, improve mood, and heighten sex drive such

that they will ‘look and feel decades – not years, but DECADES –

younger’ — as claimed on the Product label.”).

23 Plaintiff’s briefing on this issue cites extensively to

employment cases. Br. in Supp. at *35-36 fn. 27.

information and the factual circumstances of this case (as

reflected in Plaintiff’s own allegations and theory of the case)

does not warrant production of the information she seeks. See

Dziennik v. Sealift, Inc., No. 05-CV-4659, 2006 WL 1455464, at *1

(E.D.N.Y. May 23, 2006) (“Courts have ordinarily refused to allow

discovery of class members’ identities at the pre-certification

stage out of concern that plaintiffs’ attorneys may be seeking

such information to identify potential new clients, rather than to

establish the appropriateness of certification”).

For these reasons, the Court declines to order the relief

sought in connection with Requests for Production Nos. 15 and 16.

The Court’s decision does not, of course, preclude Plaintiff from

attempting in the future to demonstrate good cause for such

discovery at a potential later stage of this litigation, were the

Court to certify the class.

h. Request for Production No. 1 (Documents produced in Pizana)

Request for Production No. 1 seeks all documents produced in

Pizana. See Bruce Decl. ¶ 24; Exhibit 3. Plaintiff argues that

rather than identifying the Pizana documents already in

Plaintiff’s possession, Defendant reproduced the 500,000 pages in

an unorganized fashion in what amounted to a classic “document

dump.” Br. in Supp. at *38. According to Plaintiff, this

purportedly haphazard production was compounded by the vast gap

between the number of pages produced in the two cases, which

evinces a deficiency. Comparing the 700,000 pages produced in

Pizana to the 500,000 pages here, Plaintiff contends the exclusion

of California consumer identifying information and sales data

cannot explain the approximately 200,000-page discrepancy. Bruce

Decl. ¶ 6. Moreover, Plaintiff argues that because the documents

were not produced in an organized manner, Plaintiff cannot

otherwise determine the reason for the gap. Id. at ¶ 7. In the

meet and confer sessions, Plaintiff proposed two options to rectify

the dispute: (1) each party must review and compile a list of bates

numbers and compare what Defendant intended to send and what

Plaintiff received; or (2) each party agrees that, because

Defendant intended to simply reproduce an exact copy of the Pizana

production, the parties disregard the Deibler production, use the

Pizana documents as the single set of documents for both cases,

and, to the extent that Defendant produced additional New Jersey

documents not produced in Pizana, it identify those documents by

bates numbers. Id. at ¶ 24. In response, Defendant maintains it

already explained to Plaintiff that the 200,000-page discrepancy

is attributable simply to the omission of California consumer

identifying information and sales data. Br. in Opp. at *28.

FED. R. CIV. P. 34(b)(2)(E) governs the procedure for producing

documents and electronically stored information and provides that,

unless otherwise stipulated or ordered by the court,

(i) A party must produce documents as they are kept in

the usual course of business or must organize and label

them to correspond to the categories in the request;

(ii) If a request does not specify a form for producing

electronically stored information, a party must produce

it in a form or forms in which it is ordinarily

maintained or in a reasonably usable form or forms; and

(iii) A party need not produce the same electronically

stored information in more than one form.

FED. R. CIV. P. 34(b)(2)(E).

As the Court found in Pizana, the parties appear to have

stipulated to a specific procedure for Defendant’s production of

documents in Pizana, so the procedures set forth by FED. R. CIV.

P. 34(b)(2)(E) do not apply in that case. See Pizana, 2020 WL

6075846, at *9. As memorialized in the Pizana meet and confer

correspondence from July 17, 2020, Defendant “do[es] not need to

segregate the documents by request but will produce documents from

the search for ‘SeroVital’ from the custodians” the parties had

previously discussed. Id. As this Court understands, the Defendant

produced the documents here (except California consumer

information and sales data), the same as it did in Pizana, just as

Request for Production, No. 1 called for in this case. Although,

for reasons that are unclear, there appears, according to

Plaintiff, to be different bates numbering on at least some of the

documents – perhaps because new bates numbers were also applied

for this case.

In any event, the RFP in question (No.1) reads “All documents

produced in the action entitled Pizana v. SanMedica International,

LLC, Case No. 18-cv-00644, Eastern District of California, Hon.

Judge Dale A. Drozd.” See Doc. No. 86-5. The RFP did not direct

Defendant to identify the Pizana documents already in Plaintiff’s

possession by bates number and, as best the Court can tell, there

does not appear to have been any dialogue between the parties prior

to the production. This is unfortunate, because perhaps this whole

issue could have been avoided.

All that said, the goal of all parties should be to conduct

discovery in the most efficient and cost-effective way possible,

while remaining faithful to the rules. To that end, the Court

declines to direct Defendant to conduct bates number comparisons

between documents it produced specifically for Deibler and the

documents in Pizana. Moreover, the production has been made months

ago and the Court is not going to unwind it now. At the same time,

Defendant has represented that approximately 200,000 pages were

removed from this production. The Court is not directing the

Defendant to reorganize or recategorize the Pizana production.

That issue has been addressed in the Eastern of California and

needs no further attention from this Court. However, as there are

apparently 200,000 less pages in this production, those documents

were presumably set aside and all had Bates numbers. Defendant

should clarify what the omitted Bates numbers are by no later than

January 31, 2022 and then Plaintiff can compare that against that

received in Pizana. If the parties have reached an agreement since

the filing of this motion about the use the Pizana documents in

this case that obviates this issue, then they should so advise the

Court.

i. ESI Production

Plaintiff seeks an order compelling Defendant to (1) search

all relevant electronic databases and drives (including hard

drives, network drives, and cloud-based drives) in Defendant’s

possession, custody, and control for responsive documents and

either produce those documents and identify documents withheld

from production based on an objection or in a privilege log; and

(2) produce directory trees for custodians, drives, and databases

that contain any documents or information requested in discovery.

Plaintiff advances two general positions in support of this

request.

First, Plaintiff contends that although Defendant has

routinely transmitted files by forwarding links to one another and

transmitted automated emails from software applications, it

appears Defendant has not produced the unspecified documents

contained in hyperlinks. Br. in Supp. at *40. Defendant contests

Plaintiff’s characterization of the designee’s testimony and

maintains the testimony applied only to the Pizana production. Br.

in Opp. at *29. Defendant further challenges this request as

seeking irrelevant and disproportional information and points out

that Plaintiff refused to provide examples of the hyperlinked

emails during the meet and confer sessions, which prematurely broke

down as demonstrated in the meet and confer emails between counsel.

Second, Plaintiff claims Defendant improperly failed to

conduct searches of ESI stored on network, cloud, hard drives, and

databases and applications.24 Id. at *30. Specifically, Plaintiff

believes the searches and, ergo, the production were deficient

because Defendant’s Rule 30(b)(6) witness indicated he had no

knowledge of any searches conducted of databases or drives to

produce documents and instead merely relied on what Defendant’s

counsel told him to say. Id.

On a motion to compel discovery, the party from whom

electronically stored information is sought must show that the

information is not reasonably accessible because of undue burden

or cost. FED. R. CIV. P. 26(b)(2)(B). If such a showing is made, a

court may nonetheless order discovery from such sources if the

requesting party shows good cause, considering the limitations of

FED. R. CIV. P. (b)(2)(C). A court may limit discovery of electronic

materials under FED. R. CIV. P. 26(b)(2)(C) if: (i) the discovery

sought is unreasonably cumulative or duplicative, or is obtainable

24 Plaintiff indicates “it appears that Defendant uses a Microsoft

Office Suite of applications, such as Microsoft Word [], Excel [],

Outlook/Exchange [], Teams [], Sharepoint [] as well as various

applications and databases that manage sales, customer relations,

a product’s life cycle, and various other operational functions

such as warehousing, order fulfillment, business analytics, and

sales performance (Sage 500, Magneto, JIRA, ProClarity, Serenade,

Dynamic Microsoft)[.]” Br. in Supp. at *40.

from some other source that is more convenient, less burdensome,

or less expensive; (ii) the party seeking discovery has had ample

opportunity to obtain the information by discovery in the action;

or (iii) the proposed discovery is outside the scope permitted by

Rule 26(b)(1), i.e. the burden or expense of the proposed discovery

outweighs its likely benefit, taking into account the needs of the

case, the amount in controversy, the parties’ resources, the

importance of the issues at stake in the litigation, and the

importance of the proposed discovery in resolving the issues. FED.

R. CIV. P. 26(b)(2)(C).

The Court finds no basis to compel a further response to this

request at this moment. As a threshold matter, from the record

before the Court, there appears no indication that the scope of

Defendant’s searches/search methodology and/or its failure to

include hyperlinked documents are somehow inconsistent with any

ESI protocol in effect for this litigation. According to the

proposed joint discovery plan filed on the docket in this matter

on October 14, 2020, the parties were to “agree to a set of search

terms and parameters for the production and categorization of

documents and ESI.”25 Joint FED. R. CIV. P. 26 Report and Proposed

25 See also L. CIV. R. 26.1(d)(2) Duty to Notify. “A party seeking

discovery of computer-based or other digital information shall

notify the opposing party as soon as possible, but no later than

the Fed. R. Civ. P. 26(f) conference, and identify as clearly as

possible the categories of information which may be sought.”

Discovery Plan at *12 [Doc. No. 36]. However, based upon its review

of the docket and the submissions filed in connection with this

Motion, the Court is unable to discern the terms or scope of any

such arrangement. And if the parties agreed that ESI discovery

activities were to be carried out pursuant to an existing protocol

from Pizana, the Court is not privy to any such stipulation.26 In

any event, without the benefit of reviewing the parameters of the

ESI protocol, including search terms, and having further basic

details, the Court lacks sufficient information to conclude here

that Defendant flouted its discovery obligations by its search

methodology and/or failure to produce attached hyperlinked

documents. Indeed, the Court simply needs more information.

Notwithstanding, based on the information before the Court,

it finds the ESI request as presented to be overboard, without

some further showing. While a narrower request presented with

context surrounding particular hyperlinks, or data platforms,

could potentially identify relevant information obtainable without

foisting an undue burden upon Defendant, Plaintiff’s attempt at a

wholesale disclosure of what appears to be all databases, drives,

and networks, without more, does not appear, at least on the

26 The Court also questions whether disputes over documents

withheld pursuant to an ESI protocol established in Pizana would

be more appropriately resolved in the Eastern District of

California given the apparent use of the production from that

matter in this case.

current record, commensurate to the needs of the case, as the Court

cannot even determine if some of the material would be duplicative.

As to the scope and methodology of Defendant’s searches, much of

Plaintiff’s request appears facially irrelevant now in light of

the Court’s denial of the request for consumer identifying

information, supra. That very well may have served to moot the

request to search Serenade, Sage 500, Dynamic Microsoft, and

Magneto programs because these programs were/are used to maintain

consumer data. See Br. in Opp., Exhibit 5, Decl. of Steven Garff

¶¶ 2-8.

For the foregoing reasons, the Court declines to order the

relief sought in connection with Plaintiff’s request for ESI

discovery. However, the Court intends to promptly convene a

telephone status conference to address the ESI protocol in this

case, and the relationship to Pizana, and asks the parties to meet

and confer on the issue in advance as may be necessary. At that

time, the Court will address these ESI discovery issues further if

needed.

IV. Conclusion

For the reasons set forth herein, it is on this 30th day of

December, 2021 hereby ORDERED that Plaintiff’s motion to compel

discovery responses and documents [Doc. No. 86] is GRANTED in part

and DENIED in part consistent with the foregoing terms of this

Memorandum Opinion & Order.

SO ORDERED.

s/ Matthew J. Skahill

MATTHEW J. SKAHILL

United States Magistrate Judge

cc: Hon. Noel L. Hillman