Federal Trade Commission et al v. Quincy Bioscience Holding Company, Inc. et al

Filing 148

ORDER: terminating 134 Letter Motion for Local Rule 37.2 Conference; terminating 135 Letter Motion for Local Rule 37.2 Conference; granting 143 Letter Motion for Local Rule 37.2 Conference. The parties ' requests are resolved as follows : Accordingly, plaintiffs' motion for a protective order,barring the Rule 30(b) (6) depositions of the NYAG and the FTC, is granted. If the supplemental written responses required by this Order prove inadequate, defendants may reopen their request for supplementary 30(b) (6) deposition topics. And as set forth herein. SO ORDERED.. (Signed by Judge Louis L. Stanton on 12/03/2020) (ama)

Case 1:17-cv-00124-LLS Document 148 Filed 12/03/20 Page 1 of 6

'. usoc soNv
DOCUMENT

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

ELECTRO'1IC..\LL Y FILE D

FEDERAL TRADE COMMISSION ,

DOC Ii:

ET AL .,

- --------

DATE I- ILE D: f1..-t3/loUJ
Plaintiffs ,
- against -

17 Civ . 1 24

QUINCY BIOSCIENCE HOLDING CO .,
ET AL. ,

INC .,

(LLS)

ORDER

Defendants .
f

Plaintiffs seek a protective order prohibiting defendants

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C:
7

w

from taking the proposed 30(b) (6) depositions of the Attorney
General of the State of New York ( " NYAG " ) and the Federal Trade
Commission (" FTC " ) . Defendants oppose plaintiffs ' motions and
counter with their own request

(Dkt . No. 143 ) for an Order

requiring plaintiffs to supplement their Interrogatory responses
and Requests for Admission ( " RFAs " ).
The parties '
1.

30 (b) (6)

requests are resolved as follows :

"Contention Topics" and "Communication Topics"

Topics 6-15 and Topics 4 - 11 ,

13 in the list of Noticed

Deposition Topics served on the NYAG
"NYAG Topics " ) and the FTC
Topics") ,

respectively,

(Ex . A ,

(Ex . 1 ,

Dkt . No . 135-1,

Dkt . No . 134 - 1 ,

" FTC

seek to obtain testimony from trial

counsel on "each and every fact that supports ,

contradicts

or otherwise relates to the allegations contained in"
va rious paragraphs of the Complaint . These topics are
overbroad and impermissibly attempt to invade upon
information protected by the attorney work - product
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Case 1:17-cv-00124-LLS Document 148 Filed 12/03/20 Page 2 of 6

privilege . See SEC v. Morelli ,

143 F . R . D. 42 ,

47

(S . D. N . Y.

1992) .
NYAG Topics 16 - 28 and 33 - 35 seek testimony on " All
communications , whether written or oral , between the NYAG "
and various third parties . These topics are similarly
overbroad and would " involve questions of attorney work
product since they would reflect

[the attorney ' s]

areas of

interrogation , mental impressions , and opinions concerning
credibility . " S . E . C . v . Rosenfeld , No.
1997 WL 576021 ,
14 and 31

at *3

97 CIV . 1467

(S . D. N . Y. Sept . 16 ,

(RPP) ,

1997) . FTC Topics

(the " Premature Expert Discovery " topics) must be

protected for the same reasons , even if the expert was not
retained .
Further , both the NYAG and the FTC stated that all
relevant , non - privileged communications ,
entire investigative file ",

are already in defendants '

possession . See FTC ' s Letter at 2 ,
NYAG ' s Letter at 2 ,

" essentially its

3 . Accordingly ,

3 ; Soberats Deel . ~3 ;
any information attested

to on those Topics would likely be duplicative of
information already produced and therefore would only be
used to reveal trial counsel ' s strategy , not the facts . See
Morelli ,

143 F . R . D. at 47

("Given plaintiff ' s sworn ,

uncontroverted statement that all relevant , non - privileged
evidence has been disclosed to the defendants ,
drawn inexorably to the conclusion that
-2 -

the Court is

[defendant] ' s Notice

Case 1:17-cv-00124-LLS Document 148 Filed 12/03/20 Page 3 of 6

of Deposition is intended to ascertain how the SEC intends
to marshall the facts , documents and testimony in its
possession ,

and to discover the inferences that plaintiff

believes properly can be drawn from the evidence it has
accumulated ." ) .
To the extent there exist non - privileged documents
responsive to defendants '
to be produced ,

plaintiffs shall promptly produce them ,

they ' ve agreed to do.
Deel.

i

document requests which have yet

See Soberats Deel . i

as

4 ; Matuschak

4. Additionally , as proposed by plaintiff in Exhibit

B to the Costello Declaration ,

the NYAG shall provide

"narrative response[s] " describing the communications
requested in Topics 19 ,

23 ,

25 - 27 .

2. Remaining Proposed 30{b) (6)

First ,

Deposition Topics

like the Topics addressed above , NYAG Topics 5

and 31 constitute an impermissible attempt by defendants to
inquire into the mental processes and strategies of the
NYAG .
Next ,

the response to FTC Topic 30 has been partially

satisfied by the FTC ' s response to Interrogatory No . 1 ,

in

which the FTC identified fifteen former and current
employees "likely to possess information relating to the
Subject Matter of this Action. " Soberats Deel . i i 5 - 6 . To
the extent additional employees '

files were searched for

potentially relevant information , the FTC shall identify
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Case 1:17-cv-00124-LLS Document 148 Filed 12/03/20 Page 4 of 6

these employees in a supplemental written response and shall
also describe " the procedures it uses to organize ,

store ,

and preserve documents and communications ." The NYAG shall
do the same in satisfaction of NYAG Topic 32 .
Finally ,

Defendants and the FTC recently reached a

compromise whereby defendants propounded an interrogatory in
lieu of three 30(b) (6)
Soberats Deel.

topics previously noticed . See

11 9 - 10 . The FTC states that its forthcoming

response will also "provide much of the information
Defendants seek in Topic 28 ." Id.

Defendants may take the

same approach with the NYAG in lieu of NYAG Topics 1 ,

2- 4

and 29 - 30.
Accordingly , plaintiffs '
barring the Rule 30(b) (6)
FTC ,

motion for a protective order ,

depositions of the NYAG and the

is granted . If the supplemental written responses

required by this Order prove inadequate , defendants may
reopen their request for supplementary 30(b) (6)

deposition

topics .
3 . Defendants'

Request for Supplemental Discovery Responses

Plaintiffs already amended their RFAs ,

and therefore

there is no need for the Court to address that issue .
In Interrogatories 3 - 6 and 10 , defendants ask plaintiffs
to identify " each label , package , packaging insert , point of-sale display ,

advertisement ,

marketing material ,

television commercial ,

and/or promotional material concerning
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Case 1:17-cv-00124-LLS Document 148 Filed 12/03/20 Page 5 of 6

Prevagen ", "each Product Descriptor, marketing statement,
advertising statement ,

and/or claim You contend Defendants

made relating to Prevagen" that plaintiffs are challenging
and " all

as false , misleading and/or unsubstantiated ,

documents" that support their allegations . See Graham Deel .
Ex . A .

(emphasis added).

In response , plaintiffs state they

are challenging "any representations made by Defendants ,
whether directly or indirectly,

expressly or by

implication , " or through their "net impression ",

that convey

Prevagen improves memory or provides a list of other
cognitive benefits .
also respond ,

Id . Ex. A at 5 ,

"Defendants '

6,

8,

10 .

Plaintiffs

claims of memory and cognitive

benefits for the Prevagen Products are clearly stated across

all advertising and marketing .

II

Id . Ex . A at 10 .

(emphasis added) .
Defendants '

requests seek relevant information that

plaintiffs have necessarily obtained and consolidated over
the course of their investigation.

However ,

at trial ,

it is

unlikely that plaintiffs will present all the requested
materials individually to the jury , but instead will
compress the essential documents into a sampling , which the
Federal Rules of Evidence authorize . See Fed . R.Ev.
("The proponent may use a summary ,

chart ,

prove the content of voluminous writings ,

1006 .

or calculation to
recordings ,

or

photographs that cannot be conveniently examined in court.
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Case 1:17-cv-00124-LLS Document 148 Filed 12/03/20 Page 6 of 6

The proponent must make the originals or duplicates
available for examination or copying ,

or both ,

by other

parties at a reasonable time and place ." ) .
In this case ,

where it seems clear that the

advertisements and marketing materials cannot all be
conveniently examined in court ,
materials ,

a sampling of such

designed to be fair and representative ,

is the

most practical and least burdensome mechanism of proof .
Plaintiffs shall deliver that sample to defendants in
supplementation of their Interrogatory responses .
Plaintiffs claim of prematurity is overruled . The
purpose of discovery is to " allow for a broad search for
facts

. which may aid a party in the preparing or

presentation of his case ." Local Union No .
Ass ' n of Bridge v. Car - Wi Const .,

40 of the Int ' l

88 F . Supp . 3d 250 ,

270

( S . D . N . Y . 2 0 1 5 ) ( citing Fed . R . Ci v . P . 2 6 ( b ) Advisory Co mm it tee
Note

[1946 Amendment]

at Subdivision

(b)) . No disservice

will be done here by requiring plaintiffs to provide the
information at this time , as plaintiffs will be allowed to
amend their sampling in good faith prior to trial.
So ordered .
Dated :

New York , New York
December 3 , 2020

L.SttvW~

~J
LOUIS L . STANTON
U.S.D . J.
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