Haynes v. POM Wonderful LLC

Filing 11

MEMORANDUM AND ORDER granting 1 Motion to Quash Subpoena if Anne Haynes files a statement on or before 2/5/2014 that she will not adduce any evidence or testimony as to her health at trial, nor call as witnesses at trial any of her doctors. If such a statement is not filed by Ms. Haynes on or before 2/5/2014, then the Motion to Quash Subpoena will be denied and the Motion to Modify Subpoena will be granted. Signed by Magistrate Judge Teresa J. James on 1/29/2014. (do)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
In Re: POM WONDERFUL, LLC,
MARKETING AND SALES
PRACTICE LITIGATION

Case No. 13-mc-217-CM-TJJ
Relating to an Action Pending
in the Central District of California
Case No. 2:10-ML-2199-DDP (RZx)

MEMORANDUM AND ORDER
Pending before the Court is the Motion to Quash and/or Modify Subpoena (ECF No. 1)
filed by Plaintiff Anne Haynes. Defendant POM Wonderful, LLC (“Pom”) served a subpoena
issued out of the District of Kansas on July 1, 2013 upon non-party Custodian of Records for
Constance Irick, M.D., Haynes’s physician. The subpoena ordered the production of three
categories of documents related to Haynes’s medical records. Haynes requests that the subpoena
be either quashed entirely, or modified in relation to her deposition testimony. Pom opposes the
relief requested by Haynes. For the reasons set forth below, the Court concludes that if Ms.
Haynes files a statement by February 5, 2014, expressly stating that she will not adduce any
evidence at trial as to her health, then the subpoena at issue will be quashed without further order
of the Court. If, however, such a statement is not filed on or before February 5, 2014, then the
Motion to Quash will be denied and the Motion to Modify will be granted.
I.

BACKGROUND FACTS
Haynes is a member of a nationwide class comprised of all persons who, between

October 2005 and September 2010, purchased one or more POM Wonderful 100% juice
products. In the underlying class action, currently pending in the United States District Court for
the Central District of California, Plaintiffs allege that Pom’s advertising is false and/or

misleading in violation of California’s False Advertising Law, Unfair Competition Law, and
Consumers Legal Remedies Act.
At her deposition, Haynes testified that she purchased the juice because Pom advertised
that it had “a lot of health benefits” including “mitigating high blood pressure.” Haynes also
testified that the juice did not lower her blood pressure. Haynes further testified that she
purchased the juice to “prevent cancer” because of a history of cancer in her family.
Category 1 of the subpoena requests all documents in the files of Haynes’s physician
related to her medical care, “including but not limited to medical examinations, consultations,
hospitalization, treatment, testing, surgery or counseling.” Category 2 requests “documents
related to diagnosis, analysis, treatment, surgery, prescriptions, or any tests conducted by Dr.
Irick, or which relate to Ms. Haynes [ ] both written and recorded.” In Category 3, the subpoena
requests “(a)ny documents related to the billing of any medical examination, hospitalization,
treatment, testing, surgery or counseling received by Ms. Haynes.”
II.

ARGUMENTS ASSERTED FOR AND AGAINST QUASHING THE SUBPOENA
Haynes moves to quash the subpoena on the grounds that it seeks information that is

irrelevant to the subject matter of this action. Specifically, she argues the subject matter of this
action is whether Pom made false and/or misleading representations regarding the health-related
benefits of its juice, as to which her personal medical records are irrelevant. She further argues
that her right to privacy regarding her medical records outweighs any minimal relevancy of the
information sought.
Alternatively, Haynes requests that the subpoena be modified, as it is overly broad.
Specifically, she requests that the subpoena should be limited in scope to the conditions that she
testified to at deposition as her reason for purchasing the juice.

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Pom argues that the documents requested are relevant because Haynes placed her medical
history at issue by claiming that she purchased the juice to treat her high blood pressure and to
prevent cancer, but that the juice was not effective at doing so. Pom argues that if Haynes is
claiming that the juice is not effective and did not provide her with the advertised health benefits,
then Pom should be allowed to test her claims by examining her medical records to inquire into
the truth of her allegations as to her medical conditions prior to using the juice, to see if her
medical conditions or treatments affected the effectiveness of the juice, and to see if she received
any health benefits from the juice. As such, Pom argues that Haynes’ medical records are
relevant to the subject matter of this action.
Pom also argues that although Haynes states that her health is not at issue, she has
refused to stipulate that she will not put her physical condition at issue or call as witnesses at trial
any of her doctors. Thus, Pom argues that despite her assertions to the contrary in the motion,
Haynes may yet attempt to raise issues regarding her health at trial, which could prejudice Pom if
it is not allowed to obtain discovery related to her medical records.
III.

APPLICABLE LAW
Fed. R. Civ. P. 45 governs motions to quash subpoenas. Subsections 45(c)(3)(A)(iii) and

(iv) of the Rule requires the court issuing a subpoena to quash that subpoena in certain situations,
including when the subpoena “(iii) requires disclosure of privileged or other protected matter, if
no exception or waiver applies; or (iv) subjects a person to undue burden.”
Motions to quash a subpoena under Rule 45(c)(3) are made to the district court that
issued it, because the issuing court has jurisdiction to enforce the subpoena.1 However, quashing
the subpoena is not the only remedy available to the issuing court – it may also modify or
1

Fed. R. Civ. P. 45(c)(3)(A); see also Goodyear Tire & Rubber Co. v. Kirk’s Tire & Auto Servicenter of
Haverstraw, Inc., 211 F.R.D. 658, 660 (D. Kan. 2003).

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eliminate specific terms contained within the subpoena.2 The party seeking to quash or modify
the subpoena has the burden to show good cause for these remedies.3
While irrelevance and overbreadth are not explicitly included as reasons to quash a
subpoena under Rule 45(c)(3)(A), the advisory notes clearly indicate that “the scope of discovery
through a subpoena is the same as that applicable to Rule 34 and the other discovery rules.”4
This includes Fed. R. Civ. P. 26(b), which allows parties to seek discovery of any nonprivileged
information relevant to any party’s claims or defenses.5 Relevance is construed broadly;
“request[s] for discovery should be allowed ‘unless it is clear that the information sought can
have no possible bearing’ on the claim or defense of a party.”6
This Court previously identified the burdens of proof associated with the irrelevance and
overbreadth objections in Phalp v. City of Overland Park, Kan.:
When the discovery sought appears relevant, the party resisting the discovery has
the burden to establish the lack of relevance by demonstrating that the requested
discovery (1) does not come within the scope of relevance as defined under Fed.
R. Civ. P. 26(b)(1), or (2) is of such marginal relevance that the potential harm
occasioned by discovery would outweigh the ordinary presumption in favor of
broad disclosure. Similarly, a party resisting discovery on the grounds that a
request is overly broad has the burden to support its objection, unless the request
is overly broad on its face. When the relevancy of propounded discovery is not
apparent, however, its proponent has the burden to show the discovery relevant.7

2

Fed. R. Civ. P. 45(c)(3)(A). See also 9A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure
§ 2463 (2d ed. 1995); accord Hall v. Assoc. Int’l. Ins. Co., No. Civ. A. 11-4013-JTM-DJW, 2011 WL 2604783, at
*2 (D. Kan. June 30, 2011).
3
Flint Hills Scientific, LLC v. Davidchack, No. 00-2334-KHV-DJW, 2001 WL 1717902, at *1 (D. Kan. Nov. 9,
2001) (citing Sentry Ins. v. Shivers, 165 F.R.D. 255, 256 (D. Kan. 1996)).
4
Fed. R. Civ. P. 45 advisory committee’s note (1970 Amendment); accord Booth v. Davis, No. 10-4010-RDR-KGS,
2010 WL 2008284, at *6 (D. Kan. May 23, 2011) (citing Hammond v. Lowe’s Home Ctrs., Inc., 216 F.R.D. 666,
670 (D. Kan. 2003)).
5
Fed. R. Civ. P. 26(b)(1).
6
Booth, 2010 WL 2008284, at *6 (quoting Sheldon v. Vermonty, 204 F.R.D. 679, 689-90 (D. Kan. 2001).
7
Phalp v. City of Overland Park, Kan., No. 00-2354-JAR, 2002 WL 1162449, at *3 (D. Kan. May 8, 2002) (internal
citations omitted). Accord Booth, 2010 WL 2008284, at *6.

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Of course, relevance analysis does not require that the discovered information be admissible at
trial – merely that the discovery “appears reasonably calculated to lead to the discovery of
admissible evidence.”8
The underlying action alleges that Pom’s advertising is false and/or misleading in
violation of California’s False Advertising Law, Unfair Competition Law, and Consumers Legal
Remedies Act. California’s False Advertising Law prohibits making any “false or misleading
advertising claim.”9

The Unfair Competition Law prohibits “unfair, deceptive, untrue or

misleading advertising.”10 The Consumers Legal Remedies Act prohibits “unfair methods of
competition and unfair or deceptive acts or practices.”11 The claims under these statutes are
governed by the “reasonable consumer” test and “must be evaluated from the vantage of a
reasonable consumer.”12 Under this standard, Plaintiffs must “show that members of the public
are likely to be deceived.”13
IV.

ANALYSIS OF RELIEF REQUESTED
The subpoena issued to Haynes’s physician contains three separate categories of

document production requests, all related to Haynes’s medical records in the files of her
physician, which she argues are irrelevant and overly broad. Pom claims that all of the requests
are relevant to its defense of the case, both to test Haynes’s claims that the juice was not
effective as to the health issues which lead to her purchasing the juice, as well as to prepare for
the possibility that Haynes will introduce evidence regarding her health at trial.
The Court disagrees with Pom’s assertion that Haynes’s reason for purchasing the juice is
a central disputed factual element of Plaintiffs’ claims in this action. The California statutes at
8

Fed. R. Civ. P. 26(b)(1).
Cal. Bus. & Prof. Code § 17508.
10
Cal. Bus. & Prof. Code § 17200.
11
Cal. Civ. Code § 1770.
12
Williams v. Gerber Prods. Co., 552 F.3d 934, 938 (9th Cir. 2008) (citations omitted).
13
Id. (quoting Freeman v. Time, Inc., 68 F.3d 285, 289 (9th Cir. 1995)).
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issue do not require Plaintiffs to show that they were personally deceived by Pom’s advertising.
Instead, Plaintiffs are required to satisfy the “reasonable consumer” standard by showing that
members of the public are likely to be deceived by the advertising claims. Thus, Haynes’s
personal health has nothing to do with whether Pom’s advertising misled the class of Plaintiffs,
and thus has no bearing on the case.
As a result, the Court would ordinarily sustain the objections to subpoena request Nos. 1,
2, and 3. The Court recognizes, however, Pom’s concerns that Haynes has refused to stipulate
that she will not put her physical condition at issue or call as witnesses at trial any of her doctors.
If Haynes was to attempt to introduce evidence or testimony regarding health problems she
experienced or which she may claim were not minimized or resolved as she expected as a result
of consumption of Pom, then the medical records requested may become relevant. This places
Pom in the difficult position of potentially having to defend against assertions by Haynes that the
juice was not effective in treating her personal health conditions, without having been allowed an
opportunity to obtain discovery on that issue. As a result, the Court concludes that prior to
quashing the subpoena, Haynes must first stipulate in writing that she will not put her physical
condition at issue or call as witnesses at trial any of her doctors. Should Haynes file such an
express stipulation within seven days, the subpoena at issue will be quashed without further
order of the Court. If, however, Haynes does not file such a stipulation, the subpoena will be
modified, to limit the documents disclosed to those related to the conditions that Plaintiff
testified at deposition were her reason for purchasing the juice, specifically those of high blood
pressure and cancer.
IT IS THEREFORE ORDERED that if Anne Haynes files a statement on or before
February 5, 2014 that she will not adduce any evidence or testimony as to her health at trial, nor

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call as witnesses at trial any of her doctors, then the subpoena at issue will be quashed without
further order of the court.
IT IS FURTHER ORDERED that if such a statement is not filed by Ms. Haynes on or
before February 5, 2014, then the Motion to Quash Subpoena will be denied and the Motion to
Modify Subpoena will be granted. The subpoena will be modified to limit the documents to be
disclosed to those related to Haynes’s medical conditions of high blood pressure and cancer.
Should the documents to be disclosed contain information related to medical conditions other
than high blood pressure or cancer, said information shall be redacted prior to disclosure.
IT IS SO ORDERED.
Dated in Kansas City, Kansas on this 29th day in January, 2014.
s/ Teresa J. James
Teresa J. James
U.S. Magistrate Judge

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