# DIEBLER v. SANMEDICA INTERNATIONAL, LLC

> District Court, D. New Jersey · December 30, 2021

URL: https://www.frixlaw.com/law-library/cases/10272121

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** December 30, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## How later opinions describe it (automated extraction)

- discussing lack of a common understanding of the term “all natural” that is shared by reasonable consumers

## Opinion text

[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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10272121. Public record. Not legal advice.