JILL L. BURKHARDT, Magistrate Judge.
Before the Court is Plaintiffs and Counterclaim Defendants' motion for a protective order. (ECF No. 134.) Plaintiffs and Counterclaim Defendants (the "Youngevity parties") seek a protective order directing that: (1) Plaintiff and Counterclaim Defendant Dr. Joel D. Wallach is not required to respond to Defendants and Counterclaim Plaintiffs' Interrogatories Numbers 5 and 6; and (2) Defendants and Counterclaim Plaintiffs may not ask Dr. Wallach and Counterclaim Defendants Steve Wallach and Michelle Wallach deposition questions concerning Dr. Wallach's marital and sexual history. (Id. at 11.) Defendants and Counterclaim Plaintiffs (the "Wakaya parties") oppose the motion for a protective order. (ECF No. 136.) The Court held a telephonic hearing on the motion on June 16, 2017.
Youngevity International Corporation ("Youngevity") and Wakaya Perfection ("Wakaya") are both multi-level marketing companies that sell their products through a chain of independent distributors. (ECF No. 64 at 4; ECF No. 70 at 42.) The Youngevity parties allege that Wakaya was formed by former Youngevity distributors for the purpose of competing against Youngevity. (ECF No. 64 at 4.)
The Youngevity parties commenced this lawsuit on March 23, 2016. (ECF No. 1.) They filed the operative complaint on December 21, 2016. (ECF No. 64.) The Wakaya parties filed counterclaims on January 18, 2017. (ECF No. 70.)
The Youngevity parties allege both federal and state law claims against the Wakaya parties. Specifically, the Youngevity parties allege federal claims of violations of the Lanham Act, as well as state law claims of false advertising, unfair competition, intentional interference with prospective economic advantage, intentional interference with a contract, breach of contract, misappropriation of trade secrets, misappropriation of likeness, and breach of fiduciary duty. (ECF No. 64.) The Wakaya parties allege the following state law counterclaims against the Youngevity parties: breach of contract, breach of the covenant of good faith and fair dealing, conversion, tortious interference with existing contractual relations, tortious interference with prospective economic advantages, defamation, false light, business disparagement, unfair competition, and fraudulent or negligent misrepresentation. (ECF No. 70.)
The parties' current dispute involves the discovery of information related to Dr. Wallach's marital and sexual history. The Wakaya parties seek this information under the theory that multiple distributors left Youngevity to join Wakaya due to Dr. Wallach's inappropriate relationships with several female Youngevity distributors. (ECF No. 136 at 5-6.) The Wakaya parties argue that the information they seek is relevant to their defenses to the Youngevity parties' Lanham Act claims and their claim for misappropriation of Dr. Wallach's name and likeness. (Id. at 3-4.)
The Wakaya parties have propounded their first set of interrogatories to Dr. Wallach. (See ECF No. 134-4 at 5-11.) At issue here are the Wakaya parties' Interrogatories Nos. 5 and 6. Interrogatory No. 5 requests that Dr. Wallach "[i]dentify with particularity each and every person with whom [he] ha[s] entered into a legal marriage, domestic partnership, cohabitation, or substantially similar relationship and the dates on which such relationship commenced." (Id. at 11.) Interrogatory No. 6 requests that Dr. Wallach "[i]dentify with particularity any Youngevity Distributor with whom [he] ha[s] had or attempted to have any degree of intimate physical contact." (Id.) Dr. Wallach has objected to the Wakaya parties' Interrogatories Nos. 5 and 6 on the bases that they are overbroad, seek information that is not relevant to the claims and defenses in this case, are not proportional to the needs of the case, and are meant to harass Dr. Wallach. (Id.)
In addition, Dr. Wallach's deposition is scheduled for June 19, 2017. (ECF No. 134 at 2.) During the telephonic Status Conference before the Court on June 12, 2017 (see ECF No. 131), counsel for the Wakaya parties stated that they intend to ask Dr. Wallach about his marital relationships and sexual history at the deposition. Counsel also stated that they intend to ask similar questions at the June 20, 2017 and June 21, 2017 depositions of Counterclaim Defendants Steve Wallach and Michelle Wallach. Dr. Wallach's counsel represented during the June 12, 2017 telephonic Status Conference that they intend to instruct Dr. Wallach not to answer any deposition questions that relate to his marital and sexual history.
The Youngevity parties now seeks a protective order that would allow Dr. Wallach to refrain from responding to the Wakaya parties' Interrogatories Nos. 5 and 6 and Dr. Wallach, Steve Wallach, and Michelle Wallach to refrain from responding to deposition questions that relate to Dr. Wallach's marital and sexual history. (ECF No. 134.)
Federal Rule of Civil Procedure 26, as recently amended, provides that litigants
Fed. R. Civ. P. 26(b)(1). Information within this scope "need not be admissible in evidence to be discoverable." Id. The December 2015 amendment to Rule 26 reinforced the proportionality factors for defining the scope of discovery and, thus, under the amended Rule 26, relevancy alone is clearly no longer sufficient to obtain discovery. See Fed. R. Civ. P. 26(b)(1) advisory committee's notes to 2015 amendment. Discovery must also be proportional to the needs of the case. Doherty v. Comenity Capital Bank, 16cv1321-H-BGS, 2017 WL 1885677, at *2 (S.D. Cal. May 9, 2017) (citing Mora v. Zeta Interactive Corp., 1:16-cv-00198-DAD-SAB, 2017 WL 1187710, at *3 (E.D. Cal. Feb. 10, 2017)). Rule 26 requires that courts "limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that . . . the proposed discovery is outside the scope permitted by Rule 26(b)(1)." Fed. R. Civ. P. 26(b)(2)(C)(iii).
The relevance standard is commonly recognized as one that is necessarily broad in scope in order "to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case." Doherty, 2017 WL 1885677, at *2 (quoting Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978)). Regardless of its broad nature, however, relevancy is not without "ultimate and necessary boundaries." Id. (quoting Hickman v. Taylor, 329 U.S. 495, 501 (1947)). Accordingly, district courts have broad discretion to determine relevancy for discovery purposes. Id. (citing Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002)).
Because "pretrial discovery by depositions and interrogatories has a significant potential for abuse," Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984), district courts "may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense." Fed. R. Civ. P. 26(c)(1). "Rule 26(c) confers broad discretion on the trial court to decide when a protective order is appropriate and what degree of protection is required." Robinson v. Chefs' Warehouse, 3:15-cv-05421-RS (KAW), 2017 WL 836944, at *1 (N.D. Cal. Mar. 3, 2017) (citing Seattle Times, 467 U.S. at 36). For example, district courts may, among other things, forbid discovery, specify the terms for discovery, forbid inquiry into certain matters, or limit the scope of discovery to certain matters. Fed. R. Civ. P. 26(c)(1)(A), (B), and (D). "The burden is upon the party seeking the [protective] order to `show good cause' by demonstrating harm or prejudice that will result from the discovery." Rivera v. Nibco, Inc., 364 F.3d 1057, 1063 (9th Cir. 2004) (quoting Fed. R. Civ. P. 26(c)). This burden may be met by showing that the discovery requested is irrelevant, overly broad, burdensome, or oppressive. Del Socorro Quintero Perez v. United States, 13cv1417-WQH-BGS, 2016 WL 705904, at *6 (S.D. Cal. Feb. 23, 2016).
In addition, while there is no federal common law privilege akin to the right to privacy, federal courts ordinarily recognize a constitutionally-based right of privacy that can be raised in response to discovery requests.
The Youngevity parties assert that their motion for a protective order should be granted because no cause, counterclaim, or defense in this case is based or dependent upon Dr. Wallach's marital and sexual history. (ECF No. 134 at 7.) Instead, the Youngevity parties assert, the Wakaya parties' interrogatories and deposition questions are designed to "invade Dr. Wallach's right to privacy and annoy, embarrass, harass, and oppress him" and "damage Dr. Wallach's reputation among distributors and within the direct selling community." (Id. at 7-8.)
In support of their position, the Youngevity parties contend that there is no factual predicate for the Wakaya parties' theory that certain distributors received benefits from Youngevity in return for engaging in sexual activities with Dr. Wallach. (Id. at 8.) The Youngevity parties point out that Dr. Wallach is not an owner, officer, director, shareholder, employee, or distributor in Youngevity, and therefore he lacks the authority to alter distributor downlines and uplines.
The Youngevity parties further contend that the Wakaya parties fail to present a bona fide injury that would allow them to inquire about Dr. Wallach's marital and sexual history. (ECF No. 134 at 9-10.) The Youngevity parties assert that Steve Wallach, Youngevity's CEO, and Bill Andreoli, Youngevity's President from August 2011 through November 2015, never approved Ms. Brogdon or Ms. Murphy switching distributor uplines or downlines, which approval was necessary for the transfers to occur. (Id.)
Lastly, the Youngevity parties contend that to the extent the Wakaya parties argue that Dr. Wallach's marital and sexual history is relevant to his claim for reputational damages, Dr. Wallach is not alleging that the Wakaya parties harmed his reputation for marital faithfulness or sexual discretion, but his professional reputation with respect to the quality of the products with which he is associated. (Id. at 11.) Therefore, the Youngevity parties assert, Dr. Wallach's marital and sexual history is irrelevant to this claim. (Id.)
On the other hand, the Wakaya parties argue that their interrogatories are narrowly tailored and wholly proper because the information sought is directly relevant to the issues in this case. (ECF No. 136 at 4.) Specifically, the Wakaya parties argue that the sought-after discovery relates directly to their defense to the Youngevity parties' federal Lanham Act claims in that distributors left Youngevity for Wakaya not because Wakaya lured distributors to Wakaya, as the Youngevity parties allege, but because Dr. Wallach's inappropriate conduct created a work culture that caused distributors to leave Youngevity. (Id. at 3-4.) According to the Wakaya parties, Youngevity would provide preferential treatment to certain female distributors who engaged in intimate physical relationships and activities with Dr. Wallach to the detriment of other distributors. (Id. at 5-7.)
Additionally, the Wakaya parties argue that the discovery sought is relevant to the Youngevity parties' state law claim that the Wakaya parties misappropriated Dr. Wallach's name and likeness. (Id. at 4.) The Wakaya parties argue that this claim places Dr. Wallach's character and reputation directly at issue and renders their interrogatories and deposition questions appropriate. (Id.)
Lastly, the Wakaya parties argue that the Youngevity parties have not met their Rule 26(c) burden of demonstrating that Dr. Wallach will suffer a particularized harm or prejudice if the protective order is not granted. (Id. at 8-11.) The Wakaya parties argue that they are not seeking information regarding Dr. Wallach's entire sexual history but only the identities of the distributors with whom he has had or has sought a romantic or intimate relationship, and this identification does not fall within the scope of any right Dr. Wallach may have to "sexual privacy." (Id. at 8-9.) The Wakaya parties argue further that the Youngevity parties have failed to show why the sexual privacy right to which they believe Dr. Wallach is entitled under the California Constitution applies in this federal action arising under federal question jurisdiction. (Id. at 9.)
The Wakaya parties' Interrogatory No. 5 requests that Dr. Wallach "[i]dentify with particularity each and every person with whom [he] ha[s] entered into a legal marriage, domestic partnership, cohabitation, or substantially similar relationship and the dates on which such relationship commenced." (ECF No. 134-4 at 11.) Dr. Wallach objects to this interrogatory "on the grounds that the Interrogatory is overbroad, seeks irrelevant information, and is not proportional to the needs of the case. The identification of any such persons is irrelevant to the claims and defenses in this case. Dr. Wallach additionally objects to this Interrogatory because it is clearly meant to harass Dr. Wallach." (Id.)
With respect to the Wakaya parties' Interrogatory No. 5, the Youngevity parties' motion for a protective order is
The Wakaya parties' Interrogatory No. 6 requests that Dr. Wallach "[i]dentify with particularity any Youngevity Distributor with whom [he] ha[s] had or attempted to have any degree of intimate physical contact." (ECF No. 134-4 at 11.) Dr. Wallach objects to this interrogatory "on the grounds that the Interrogatory is overbroad, seeks irrelevant information, and is not proportional to the needs of the case. The identification of any such persons is irrelevant to the claims and defenses in this case. Dr. Wallach additionally objects to this Interrogatory because it is clearly meant to harass Dr. Wallach." (Id.)
With respect to the Wakaya parties' Interrogatory No. 6, the Youngevity parties' motion for a protective order is
Additionally, the Court is persuaded that this interrogatory was designed to harass, annoy, embarrass, and oppress Dr. Wallach. As correctly noted by the Wakaya parties in their opposition, whether Dr. Wallach actually engaged in intimate activities with any Youngevity distributor or distributors is not the issue here. (See ECF No. 136 at 5.) Rather, the issue is whether Dr. Wallach's observable conduct and his "perceived inappropriate relationships . . . with numerous female Youngevity distributors unfairly impacted many other distributors and deterred many from working with Youngevity altogether." (Id. at 5-6.) Thus, the identities of "any Youngevity Distributor with whom [Dr. Wallach] ha[s] had or attempted to have any degree of intimate physical contact," regardless of whether such intimate physical contact was ever observed by any Youngevity distributor, are irrelevant to the issues at hand. Hence, the effort to unearth extremely personal and potentially embarrassing information that may have been completely unobserved and may have had no impact on anyone's actions seems at least partially motivated by a desire to harass or embarrass.
Even if the Court gives credit to the Wakaya parties' specific allegations regarding Dr. Wallach's conduct, the allegations are not sufficiently tied to the issues in this case to justify the production of the discovery that the Wakaya parties seek. The allegations of Dr. Wallach making unwelcomed sexual advances toward certain distributors (ECF No. 136 at 6), demanding to be seated next to certain women at events (id. at 7), and changing the person to whom his royalty payments are made (id. at 5), though concerning if true, do little to tie the requested areas of discovery to the issues of this case. The Wakaya parties have failed to demonstrate more than the most tenuous connection between these alleged behaviors and Youngevity distributors leaving Youngevity for Wakaya.
Further, the entirety of the declaration filed in support of the Wakaya parties' opposition to the motion for a protective order is of little to no evidentiary or persuasive value. First, the Court cannot credit the factual assertions made by the Wakaya parties' counsel that were not attributed to identified witnesses, as the Court is unable to evaluate the competency of the unidentified witnesses to testify to those assertions. (See, e.g., ECF No. 136-1, ¶¶ 5, 6.a-e, 7.a-c, 8, 9, 10.) Second, the Court cannot credit the Wakaya parties' counsel's several conclusory assertions that lack specific factual support. (See, e.g., ECF No. 136-1, ¶¶ 6.b-d, 7.a-c.) And third, the Court cannot rely on the Wakaya parties' counsel's assertions that constitute inadmissible double or triple hearsay. (See, e.g., ECF No. 136-1, ¶¶ 6.e, 7.a-c, 10.) Thus, the declaration of the Wakaya parties' counsel provides the Court with little support for the Wakaya parties' position that there is a basis to fully deny the Youngevity parties' motion for a protective order.
For the reasons discussed above, the Youngevity parties' motion for a protective order with respect to Interrogatory No. 6 is
However, because the Wakaya parties have demonstrated a connection, albeit a tenuous one, between a subset of the information sought via Interrogatory No. 6 and the claims and defenses at issue in this case, the Youngevity parties' motion for a protective order is also
In addition, and, again, subject to the Stipulated Protective Order between the parties (ECF No. 103), for any specific distributor that the Wakaya parties: (1) have
Neither the Youngevity parties nor the Wakaya parties requested in their pleadings that the Court award sanctions. Pursuant to its authority under Federal Rule of Civil Procedure 37(a)(5)(C), the Court declines to apportion the expenses of bringing this motion to the Wakaya parties.