Federal Trade Commission v. Ivy Capital, Inc. et al

Filing 289

ORDER Granting in part and Denying in part 271 Motion to Compel Answers to Interrogatories and Document Requests. FURTHER ORDERED that Defendants shall have until 6/22/12 in which to take the deposition of the FTC's expert witness. The remain ing pre-trial deadlines are extended as follows: (1) the last day to file dispositive motions is July 23, 2012; (2) the joint pretrial order is due on or before August 23, 2012 unless dispositive motions are filed, in which case the joint pretrial order shall be filed within 30 days after the Court's decision on the last dispositive motion. Signed by Magistrate Judge George Foley, Jr on 5/22/12. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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FEDERAL TRADE COMMISSION,

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Plaintiff,
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vs.
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IVY CAPITAL, INC., et al.,
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Defendants, and
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CHERRYTREE HOLDINGS, LLC, et al.,
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Relief Defendants.
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__________________________________________)

Case No. 2:11-cv-00283-JCM-GWF
ORDER

Motion to Compel Answers to
Interrogatories and Document
Requests - #271

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This matter is before the Court on Defendants Joshua Wickman’s and Enrich Wealth

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Group’s Motion to Compel Answers to Interrogatories and Document Requests (#271), filed on

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March 30, 2012; Plaintiff’s Opposition to Motion to Compel (#276), filed on April 16, 2012; and

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Defendants’ Reply in Support of Motion to Compel (#277), filed on April 24, 2012. The Court

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conducted a hearing in this matter on May 10, 2012.

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BACKGROUND
This case involves a Complaint for Permanent Injunction and Other Equitable Relief (#1)

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filed by Plaintiff Federal Trade Commission (“FTC”) on February 22, 2011. The complaint alleges

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that Defendant Ivy Capital, Inc. and other “Primary and Upsell Defendants,” including Enrich

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Wealth Group, LLC, operated as a common enterprise while engaging in deceptive trade practices.

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The complaint also names several individual Defendants, including Joshua Wickman, who is

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identified as the owner and registered agent of Enrich Wealth Group, LLC.

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1.

Factual Allegations in the Complaint. The FTC alleges that beginning no later

than 2007, the Primary Defendants used telephones to market a program that purportedly helps

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consumers create, develop, market and run their own successful Internet businesses from home.

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The program was sold by calling consumers who had provided their telephone numbers in response

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to unrelated e-mails or advertisements about work-at-home or Internet business opportunities.

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Complaint (#1), ¶¶ 48, 50-51. The complaint alleges that “[d]uring the sales calls, which could last

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for more than an hour, the Primary Defendants’ sales representatives made a variety of

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representations, often using high pressure sales tactics, to sell their business coaching program.”

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Id.¶ 52. These representations included statements that (a) the consumers had to act quickly

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because there were hundreds of people waiting to purchase the program and a limited number of

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resources; (b) descriptions of individuals who purportedly made millions of dollars through the

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program; (c) that the purpose of the call was to identify “qualified” applicants and choose

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participants for a highly-selective “team;” and (d) asked the consumers to describe what they would

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do with the promised proceeds from their Internet businesses. ¶53.

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The sales representatives allegedly assured prospective purchasers that they would be able

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to recover their initial investments in a short period of time or by stating that purchasers typically

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earn from $3,000 to $10,000 per month. ¶54. The sales representatives assured consumers that if

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they were willing to spend five to ten hours per week and were committed to following the program

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they would be successful. These assurances were allegedly given even though the sales

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representatives did not tell the consumers what type of Internet business they would be starting and

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what they were expected to do in connection with the business. ¶55. The FTC alleges that these

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promises were false because the vast majority of purchasers were not successful in establishing

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Internet businesses. ¶56.

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The FTC also alleges that the Primary Defendants represented that they would provide all

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services necessary for the consumers to establish successful Internet businesses, including

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individual coaching sessions, online resources, and website design and development. The Primary

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Defendants also allegedly promised to provide all necessary services for six months or until the

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purchasers recouped their initial investments. ¶57. The FTC alleges that these promises were also

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false because the Defendants failed to provide all the services necessary for consumers to establish

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successful Internet businesses for the promised length of time and failed to provide the promised
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related products and services. ¶80.
During the sales calls, the consumers were allegedly asked to disclose personal financial

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information, including their debts and credit card limits. The consumers were encouraged to

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purchase the program with their credit cards and that they would soon be able to pay the charges

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from the proceeds of their Internet businesses. ¶58. The Primary Defendants allegedly charged

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$2,000 to $20,000 for the business coaching program depending on the amount of credit that the

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consumers had available on their credit cards. ¶60. In numerous instances, after consumers

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authorized the Primary Defendants to charge their credit cards, sales representatives allegedly sent

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e-mails containing a link to an electronic contract. In some instances, sales representatives

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pressured customers into signing the electronic contracts during the sales call, often without giving

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the consumers time to read the entire contract. ¶61.

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The FTC alleges that within days, weeks or months of purchasing the program, consumers

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discovered that it was nearly impossible to establish a profitable Internet business, even if they

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worked substantially more than five to ten hours a week and followed all the steps of the program.

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The coaches provided little or no substantive guidance and many of the videos included in the

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program package contained merely commonsense advice or inspirational stories. Consumers were

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not provided with assistance when they encountered technical or other difficulties. While some

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consumers were able to start businesses, or establish websites, they did not earn any money. ¶62.

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The complaint contains additional allegations regarding the “Upsell Defendants” who

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allegedly called purchasers shortly after they purchased the program to offer additional services

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designed to enhance or improve their Internet businesses. ¶¶63-67.

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The FTC alleges that the Primary Defendants had a strict three-day refund policy. In

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numerous instances, however, sales representatives failed to disclose this policy to consumers prior

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to purchase. Defendants also allegedly had a policy which required consumers to sign a “non-

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disparagement” agreement in order to receive a refund which was also not disclosed prior to

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purchase. ¶68. Consumers who requested refunds after the three day period were told that they

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were not eligible for a refund of any kind even if they had not been informed of the refund policy

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prior to purchase. Consumers who continued to request refunds were often berated or insulted by
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Defendants’ representatives. ¶69. Consumers who attempted to obtain refunds within the three-

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day period also faced obstacles, including being unable to reach a representative to request a

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refund, being given conflicting information as to how the refund request had to be made, or being

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transferred to very aggressive sales representatives who attempted to talk them out of cancelling.

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Defendants also routinely refused to provide refunds to consumers who attempted to cancel within

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the three-day refund period. ¶70.

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The FTC alleges that Defendants initiated telephone calls to telephone numbers on the

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National Do Not Call Registry and that Defendants engaged in this behavior even after consumers

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asked them to stop calling. ¶72. Defendants also allegedly called telephone numbers in various

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area codes without first paying the annual fee for access to the telephone numbers in the area codes

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that are included within the National Do Not Call Registry. ¶72.

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Based on the foregoing allegations, the FTC alleges that Defendants violated the Section

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5(a) of the FTC Act, 15 U.S.C. § 45(a), which prohibits “unfair or deceptive acts or practices in or

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affecting commerce.” The FTC also alleges that the Defendants violated the Telemarketing Act,

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15 U.S.C. §§ 6101-6108, and the Telemarketing Sales Rule, 17 C.F.R. part 310, which prohibits

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abusive and deceptive telemarketing acts or practices. The FTC also alleges that Defendants

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violated the regulation governing the National Do Not Call Registry. 16 C.F.R.

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§310.4(b)(1)(iii)(B). These violations are charged in Counts I-IX of the complaint.

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2.

FTC’s Motions for Temporary Restraining Order and Preliminary Injunction.

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On the same date the complaint was filed, the FTC also filed an ex parte motion for temporary

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restraining order (#6) which provided additional detail regarding the Defendants’ alleged

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misrepresentations and failures to disclose material information to consumers and purchasers. The

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motion asserts that thousands of individual consumers have been defrauded of thousands of dollars

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each by Defendants and that the aggregate fraud involves $40 million or more. Ex Parte Motion

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for Temporary Restraining Order, Memorandum of Points and Authorities (#6-2), pg. 9.1 In

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The FTC filed a substantially identical Motion for Preliminary Injunction (#11) on the same date.
The court granted the FTC’s motion for preliminary injunction on March 25, 2011. Preliminary Injunction
(#91).

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support of its motion, the FTC submitted the declarations of eleven (11) purchasers of Defendants’

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program which set forth in extensive narrative detail the purchasers’ communications and

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transactions with Defendants. The declarations are accompanied by copies of the agreements

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executed by the purchasers, e-mails, credit card charge records and other documents relating to the

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program.

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The District Court granted the temporary restraining order and pursuant thereto appointed a

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temporary receiver to take charge of Defendants’ assets and business records. Temporary

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Restraining Order (#12). The FTC thereafter inspected the Defendants’ business records which

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consist of voluminous paper and electronic records, including approximately one million recorded

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telephone conversations. FTC’s Opposition to Motion to Compel (#276), pg. 5. The FTC states

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that prior to the preliminary injunction hearing, it provided the Enrich Wealth Defendants with

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additional documents and information including a copy of all paper documents, approximately

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2,100 pages, that the FTC inspected and copied at Enrich Wealth’s business premises; contact

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information for each consumer whose declarations supported the FTC’s application for the

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temporary restraining order; and approximately 2,700 pages of materials related to the declaration

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of an FTC investigator. Id., pg. 6. The FTC also states that Defendants had access to Enrich

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Wealth’s business records in the possession or control of the receiver. Id.

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3.

Discovery Plan and Scheduling Order. The court entered a scheduling order in

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this case on May 12, 2011 which provided a discovery cut-off date of June 1, 2012. Order (#185).

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Deposition discovery was stayed until August 11, 2012 at which time the court authorized the FTC

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to take up to 30 depositions and the Defendants, collectively, to take up to 30 depositions. Order

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(#227). The FTC has noticed and taken 22 depositions, including the depositions of one purchaser

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of Defendants’ Internet business program. The Defendants have not noticed any non-expert

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depositions. Defendants have requested that the FTC’s expert witness be made available for

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deposition after the decision on the instant motion to compel.

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4.

FTC’s Expert Witness. The FTC states that it disclosed Dr. Kenneth H. Kelly as

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its expert witness on April 2, 2012. Dr. Kelly reviewed a random sample of one hundred of the

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Defendants’ recorded telephone calls and determined that 90% of the sales calls in the sample
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included earnings representations of the kind identified in the complaint. The FTC states that the

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materials supporting Dr. Kelly’s expert opinion have been provided to the Defendants, including

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the recordings that Dr. Kelly reviewed and the guidelines that he used in reviewing the calls.

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Opposition (#276), pg. 7.

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Defendants’ Written Discovery Requests. Defendants Enrich Wealth and Mr.

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Wickman served eight interrogatories and eight requests for production of documents on the FTC

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on February 3, 2012. The FTC served its objections and responses to Defendants’ discovery

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requests on March 16, 2012. The FTC listed several “General Responses” and “General

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Objections” to the interrogatories and requests for production, as a whole, and also objected to

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specific interrogatories and requests. The FTC responded to most of the interrogatories by stating

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that it would provide documents responsive to the interrogatories upon entry of a protective order

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prohibiting the disclosure of personal identification information–social security numbers, dates of

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birth and residence addresses–to third persons who have no interest in the litigation. Likewise, the

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FTC responded to the requests for production by stating that it would produce responsive

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documents once the protective order was entered. Defendants contended that the FTC’s request for

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a protective order was somehow intended to permit the FTC to produce voluminous documents in

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an unorganized manner and to not provide specific answers or responses to the interrogatories and

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requests.

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During the May 10, 2012 hearing, the court granted the FTC’s motion for protective order

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that personal identification information contained in the produced records shall not be disclosed to

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third persons unrelated to this litigation. See Order (#286). Pursuant thereto, the FTC’s counsel

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turned over to Defendant’s counsel a compact disc containing documents that the FTC states are

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responsive to Defendant’s requests for production. The FTC also provided Defendant’s counsel

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and the court with a letter that lists the bates numbers of the documents on the compact disc that

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correspond to each of Defendants’ interrogatories and requests for production. The letter does not

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otherwise describe the produced documents. A copy of the FTC’s May 10, 2012 letter is made an

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addendum to this order.

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DISCUSSION

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A.

Interrogatories. Rule 33(a)(2) states that an interrogatory is not objectionable

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because it asks for an opinion or contention that relates to fact or the application of law to fact. The

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court, however, may order that the interrogatory need not be answered until designated discovery is

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complete, or until a pretrial conference or some other time. Rule 33(d) provides that if the answer

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to an interrogatory may be determined by examining, auditing, compiling, abstracting, or

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summarizing a party’s business records, and if the burden of deriving or ascertaining the answer

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will be substantially the same for either party, the responding party may answer by (1) specifying

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the records that must be reviewed, in sufficient detail to enable the interrogating party to locate and

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identify them as readily as the responding party could; and (2) gives the interrogating party

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reasonable opportunity to examine and audit the records and to make copies, compilations,

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abstracts and summaries.

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Interrogatory No. 1 asked the FTC to “describe in detail, while identifying each

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Consumer, the substance of communications with each Consumer you have had about the facts of

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the complaint.” The FTC objected to Interrogatory No. 1 on the grounds that it is vague,

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overbroad, and unduly burdensome. The FTC stated, however, that it would produce non-

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privileged responsive documents upon entry of the protective order. The FTC further asserted:

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“Defendants will be able, with no greater burden, to derive the requested information from these

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documents, the documents already in the possession of the Defendants or the Receiver, and the

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Complaint.” See Response to Motion to Compel (#276) (attached copy of FTC’s Objections and

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Responses to Interrogatories).

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Interrogatory No. 2 asked the FTC to “describe in detail the substance of communications

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that you have had with any employee or former employee of any of the defendants, while

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identifying each such employee or former employee.” The FTC objected to this Interrogatory “on

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the grounds that the request seeks information that is subject to various privileges, including, but

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not limited to the work product doctrine.” The FTC also stated that it would produce non-

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privileged responsive documents upon entry of a protective order. Id.

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The FTC states that prior to the filing of the motion to compel, it provided the Defendants

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with four lists of consumers or employees that are responsive to Interrogatory Nos. 1 and 2. The

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first list identifies consumers who have, since May 11, 2011, registered a complaint regarding the

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defendants with the FTC. This supplements a list of consumers previously provided by the FTC in

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its initial disclosures. The second list identifies consumers who, subsequent to the filing of this

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action, contacted FTC attorneys or paralegals concerning this action and/or their experiences with

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the defendants. The third list identifies consumers who, prior to the filing of this action, contacted

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FTC attorneys or paralegals concerning this action and/or their experiences with the defendants.

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The fourth list identifies employees or former employees of defendants who have communicated

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with the FTC. Opposition to Motion to Compel (#276), pg. 9 and March 29, 2012 email from

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FTC’s counsel to Defendants’ counsel. The lists have not been provided to the court. Nor does the

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court have information regarding the number of individuals on the lists, other than the FTC’s

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statement that it has provided Defendants with information about more than one thousand

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customers who have complained about the defendants. Opposition (#276), pg. 10.

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According to the FTC’s May 10, 2012 letter, the compact disc produced during the hearing

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contains documents responsive to Interrogatory Nos. 1 and 2. The letter does not otherwise

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describe the documents. The Court agrees with the FTC that it would be unreasonably burdensome

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to require the FTC to provide a detailed summary or narrative of each consumer complaint or

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employee statement when copies of complaints and statements have been produced to Defendants

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and are identified by document numbers in the answers to the interrogatories to which they apply.

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See Donell v. Fidelity Nat’l Title Agency of Nevada, 2012 WL 1118944, *6 (D.Nev. 2012), citing

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Rainbow Pioneer No. 44-18-04A v. Hawaii-Nevada Inv. Corp., 711 F.2d 0902, 906 (9th Cir. 1983).

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The court will, however, require the FTC to supplement its answer to Interrogatory Nos. 1 and 2

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and provide a general description of the documents identified as responsive to Interrogatory Nos. 1

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and 2, such as by stating whether the produced documents are written consumer complaints,

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employee statements or some other type(s) of documents.

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The FTC argues that the substance of the communications between the FTC’s lawyers or
paralegals and consumers, or between the FTC’s lawyer or paralegals and the Defendants’
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employees, are protected from disclosure under work-product doctrine established in Hickman v.

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Taylor, 329 U.S. 495, 512-13, 67 S.Ct. 385 (1946). Defendants argue that Hickman does not

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protect an attorney’s oral communications with witnesses. In support of this assertion, Defendants

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quote Hickman’s statement that “a party cannot refuse to answer interrogatories on the grounds that

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the information sought is solely within the knowledge of his attorney.” Reply (#277), pg. 4.

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Rule 26(b)(3)(A) of the Federal Rules of Civil Procedure states that, ordinarily, a party may

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not discover documents and tangible things that are prepared in anticipation of litigation or for trial

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by or for another party or its representative. Such materials may be discovered, however, if the

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party seeking discovery shows that it has substantial need for the materials to prepare its case and

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cannot without undue hardship obtain their substantial equivalent by other means. If the court

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orders discovery of work-product materials, it must protect against disclosure of the mental

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impressions, conclusions, opinions or legal theories of a party’s attorney or other representative

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concerning the litigation. Rule 26(b)(3)(B). Thus, written statements, or recordings or transcripts

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of oral statements, obtained in anticipation of litigation, are generally protected from disclosure.

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Likewise, an attorney’s or representative’s notes or memoranda regarding a witness’s statements

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are also protected.

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Hickman held that in response to an interrogatory, a party or its attorney is not required to

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describe statements made by witnesses that were obtained by the attorney in anticipation of

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litigation. Hickman, 329 U.S. at 507, 67 S.Ct. at 392. The Supreme Court made clear, however,

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that relevant facts known to the party or its attorney are not protected by the work-product doctrine

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and must be disclosed in response to an interrogatory seeking discovery of those facts. A party is

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also required to identify individuals who have knowledge of relevant facts.

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In Laxalt v. McClatchy, 116 F.R.D. 438, 441 (D.Nev. 1987), the district court held that the

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defendant’s investigator was required, at deposition, to disclose facts he learned during his

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investigation and to also disclose the identity of witnesses to particular matters. The court held,

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however, that a party is not required to disclose whether its attorney or investigator has interviewed

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a particular individual or to disclose the substance of the interview. Id. at 443. The court stated

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that if this latter information was required to be disclosed, the opposition would be able to
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determine which witnesses or information the opposing counsel considers important, and thereby

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invade opposing counsel’s mental impressions and trial strategy which the work-product doctrine

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was meant to protect. Id. More recent decisions also make clear that the work-product doctrine

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protects intangible work product such as an attorney’s or investigator’s recollection of statements

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obtained from witnesses. Bear Republic Brewing Co. v. Central City Brewing Co., 275 F.R.D. 43,

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45 (D.Mass. 2011), citing Nesse, etc. v. Pittman, 202 F.R.D. 344, 356 (D.D.C., 2001) (citing

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Alexander v. FBI, 192 F.R.D. 12, 17 (D.D.C., 2000); Athridge v. Aetna Cas. & Sur. Co., 184 F.R.D.

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200, 209 (D.D.C., 1998); Laxalt, 116 F.R.D. at 441; Delco Wire & Cable, Inc. v. Weinberger, 109

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F.R.D. 680, 691 (E.D.Pa., 1986)).

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Defendants cite In re Folding Carton Antitrust Litigation, 83 F.R.D. 256, 259 (N.D.Ill.

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1979) for the proposition that interrogatories seeking the substance of communications with the

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government plaintiff are within the proper scope of discovery. Defendants also cite In re Shopping

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Carts Antitrust Litigation, 5 F.R.D. 299, 307 (S.D.N.Y. 1982) which held that interrogatories that

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sought the disclosure of communications between the defendants, or between defendants and other

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competitors, were proper. Neither of these cases, however, involved an assertion that the

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communications were protected by the work-product doctrine.

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The FTC does not claim work-product protection for complaints about the Defendants that

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were received from consumers. It does, however, assert the work-product doctrine in regard to

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communications between the FTC’s lawyers and paralegals and consumers or employees of the

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Defendants. The only question regarding the application of the work-product doctrine to such

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communications is whether the FTC’s lawyers or paralegals were in anticipation of litigation

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against the Defendants at the time the communications occurred. The FTC should provide a

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declaration or other evidence which establishes that all communications to which it asserts the

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work-product doctrine occurred after the date it was in anticipation of litigation.

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Defendants have not shown that they are in substantial need of the work-product

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information sought in Interrogatory Nos. 1 and 2. In support of their motion, Defendants assert that

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the FTC deposed one of the consumers of Defendants’ Business Coaching Program to show the six

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violations alleged in its complaint. Defendants assert that the witness admitted on cross10

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examination that each of his claims was either unsupported or a lie. Motion to Compel (#271), pgs.

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3-7. On this basis, Defendants argue that the FTC’s communications with other consumers may

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show that the FTC’s allegations against the Defendants are not valid. Although Defendants’

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motion provided citations to the deposition transcript of the witness who was deposed, Defendants

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did not attach the transcript as an exhibit to their motion. The court therefore cannot determine

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whether Defendants’ characterizations of the witness’s testimony are accurate. Assuming for sake

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of argument, however, that this one witness retracted his prior allegations, this does not establish

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Defendants’ need or entitlement to obtain the FTC’s work-product information regarding other

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consumers or employees of Defendants.

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The FTC attached detailed declarations from eleven (11) consumers as exhibits to its

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motions for temporary restraining order and preliminary injunction. Although the court authorized

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the Defendants to take up to thirty (30) depositions, the Defendants have not taken any depositions

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in this case. Defendants also did not serve their interrogatories and requests for production of

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documents until nearly eight months after discovery commenced. Defendants lack of diligence in

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pursuing discovery belies any legitimate claim of substantial need for the FTC’s work product or

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that the Defendants could not have obtained the substantial equivalent of the requested information

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through other available means. The court therefore denies Defendants’ motion to compel further

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responses to Interrogatory Nos. 1 and 2, other than to require the FTC to describe the nature of the

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documents identified by it as responsive to those interrogatories and provide a declaration or other

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evidence which demonstrates that all communications to which it asserts the work-product doctrine

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occurred after it was in anticipation of litigation against Defendants.

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Interrogatory No. 3 asked the FTC to identify all documents seized from Enrich’s files

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which indicate that Enrich used a non-disparagement clause with customers. The FTC objected to

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this interrogatory as unduly burdensome because the Defendants are in possession of, or have

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access to all documents seized from Enrich’s files. The FTC also objected to the extent that the

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interrogatory required it “to analyze or organize factual evidence, or conduct legal research for

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Defendants, which Defendants can do equally themselves.” Id. The FTC also stated that it would

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produce non-privileged responsive documents upon entry of a protective order. The FTC’s May
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10, 2012 letter identifies numerous document bates stamp numbers as responsive to Interrogatory

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No. 3, but does not describe the nature or type of documents produced. The Court therefore orders

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the FTC to supplement its answer to Interrogatory No. 3 by describing the nature or type of the

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documents it has produced and identified by bates numbers as responsive to Interrogatory No. 3.

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Interrogatory Nos. 4-8 asked the FTC to describe in detail the following: Each

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misrepresentation regarding income made by Enrich Personnel (No. 4); each misrepresentation

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regarding goods and services made by Enrich Personnel (No. 5); each failure to disclose material

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aspects of a refund policy made by Enrich Personnel (No. 6); each violation of the Telemarketing

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Sales Rule committed by Enrich Personnel (No. 7); and each violation of 16 C.F.R.

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§310.4(b)(iii)(B) committed by Enrich Personnel.
The FTC objected to Interrogatory Nos. 4-8 to the extent that they purport to require the

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FTC “to analyze or organize factual evidence, or conduct legal research for Defendants, which

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Defendants can do equally themselves.” Id. The FTC further objected to the extent the

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interrogatories seek documents or other information that the FTC has already provided to the

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Defendants, including through the FTC’s court filings in this case. The FTC also objected to the

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extent the interrogatories seek information or documents already known to Defendants, or their

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counsel, or in the possession of the Defendants, another defendant, the receiver or which can be

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obtained from some other source that is more convenient and less burdensome. The FTC also

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stated that it would produce non-privileged responsive documents upon entry of a protective order.

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The FTC stated, however, that it believed that the documents already in Defendants possession are

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responsive to Interrogatory Nos. 4-8.

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The FTC’s May 10, 2012 letter identifies numerous document bates stamp numbers that are

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responsive to Interrogatory Nos. 4-8. The interrogatories, however, do not simply ask the FTC to

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identify documents relating to the referenced claims or allegations. Rather, the interrogatories ask

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the FTC to describe in detail the principal misrepresentations, failures to disclose material facts or

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other wrongful acts allegedly committed by Defendants.

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Rule 33(a)(2), by its plain terms, permits an interrogatory to ask for an opinion or
contention that relates to facts or the application of law to facts. The FTC’s objection that the
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interrogatories ask it “to analyze or organize factual evidence” is therefore without merit. District

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courts have broad discretion in deciding whether particular interrogatories are unduly burdensome

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or overbroad. Henry v. Rizzolo, 2010 WL 33854448, *4 (D.Nev. 2010), citing Wright, Miller &

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Marcus, Federal Practice and Procedure: Civil §3176 (3rd ed. 2010). Interrogatory Nos. 4-8 are not

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the type of all-encompassing interrogatories which require the plaintiff to provide a detailed

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narrative of its entire case, including the identity every witness and document that supports each

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described fact. Courts have held that such “blockbuster” interrogatories are unduly burdensome on

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their face. See e.g. Hilt v. SFC, Inc., 170 F.R.D. 182, 186-87 (D.Kan. 1997) and Grynberg v. Total

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S.A., 2006 WL 1186836, *6-7 (D.Colo. 2006). Interrogatory Nos. 4-8 would be unduly

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burdensome, however, if they were construed to require the FTC to specifically answer with regard

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to each individual consumer who purchased Defendants’ Internet business program. The FTC

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presumably intends to introduce representative testimony and documents at trial to prove its claims

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that Defendants have engaged in a pattern or practice of misrepresentations, failures to disclose

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material facts and violations of the Do-Not-Call Registry. It is not unreasonable therefore to

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require the FTC to describe the factual basis for its claims and allegations that it will attempt to

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prove at trial through representative testimony or documentary evidence.

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The FTC’s complaint and motions for temporary restraining order and preliminary

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injunction provided fairly detailed factual information about the Defendants’ alleged

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misrepresentations, failures to disclose and violations of the Do-Not-Call Registry. This is not a

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case, therefore, in which Defendants need more information in order to understand the factual basis

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for the FTC’s claims. This does not mean, however, that requiring the FTC to answer Interrogatory

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Nos. 4-8 serves no legitimate purpose. Answers to contention interrogatories at or near the end of

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discovery serve to finalize the factual basis for claims which may have changed or developed

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during the course of discovery. This includes identifying those claims or allegations which are no

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longer viable and are now abandoned. Accordingly, the court orders the FTC to answer

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Interrogatory Nos. 4-8 by providing a reasonably detailed summary of the facts which support each

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of the referenced claims or allegations. The FTC is not required, however, to describe each and

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every alleged misrepresentation or other violation committed against each and every consumer of
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Defendants’ program.

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B.

Requests for Production of Documents. Defendants Enrich Wealth and Mr.

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Wickman also served eight requests for production of documents on the FTC. These requests

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correspond to Interrogatory Nos. 1-8. The FTC’s objections to the requests also correspond to its

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objections to the interrogatories, including its objections based on the work-product doctrine. The

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Court therefore also requires the FTC to provide a declaration or other evidence that any

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communications with consumers, employees or former employees of Defendants that the FTC has

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withheld on the basis of the work-product doctrine, were in fact obtained by the FTC’s lawyers or

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paralegals after the FTC was in anticipation of litigation against the Defendants. It otherwise

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appears that the FTC has now produced documents which it states are responsive to each of the

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requests for production. The Court therefore denies the motion to compel responses to the requests

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for production, without prejudice to Defendants’ right to file another motion if it has good cause to

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argue that the responses are incomplete or deficient in some meaningful respect.

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C.

Extension of Discovery Deadline. During the May 10, 2012 hearing, Defendants

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requested a six month extension of the discovery deadline. The FTC opposed Defendants’ oral

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motion. The Court denies Defendants’ request for a general extension of the discovery deadline

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because they have failed to diligently pursue discovery during the existing discovery period. The

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Court will, however, permit the Defendants to depose the FTC’s expert witness.

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CONCLUSION

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IT IS HEREBY ORDERED that Defendants’ Motion to Compel Answers to

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Interrogatories and Document Requests (#271) is granted, in part, and denied, in part, in

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accordance with the foregoing provisions of this order. The FTC shall serve its supplemental

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answers to interrogatories on or before June 5, 2012. The FTC shall also serve on Defendants and

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file with the court a declaration or other documentation demonstrating that any communications

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with consumers or employees or former employees of Defendants, which have been withheld on

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the basis of the work-product doctrine, were obtained after the FTC was in anticipation of litigation

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against the Defendants.

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...
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IT IS FURTHER ORDERED that Defendants shall have until June 22, 2012 in which to

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take the deposition of the FTC’s expert witness. The remaining pre-trial deadlines are extended as

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follows:

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(1)

The last day to file dispositive motions is July 23, 2012.

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(2)

The joint pretrial order is due on or before August 23, 2012 unless dispositive

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motions are filed, in which case the joint pretrial order shall be filed within thirty (30) days after the

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Court’s decision on the last dispositive motion.

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DATED this 22nd day of May, 2012.

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______________________________________
GEORGE FOLEY, JR.
United States Magistrate Judge

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ADDENDUM