Sunderland v. Season 4, LLC

• Court: District Court, S.D. California
• Decided: January 15, 2025
• Docket: 3:24-cv-00895
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 In re: Case No.: 3:24-cv-00895-JES-AHG

12 ORDER DENYING MOTION TO SUBPOENA ON THIRD-PARTY ENFORCE SUBPOENA 13 SEASON 4, LLC

14 [ECF No. 1]

17 Underlying action pending in the Southern __________________________________ 18 District of California:

19 LINDA SUNDERLAND and Case No. 3:23-cv-01318-JES-AHG BENJAMIN BINDER, 20 individually and on behalf of all others 21 similarly situated, 22 Plaintiffs, 23 v. 24 PHARMACARE U.S., INC., 25 Defendant. 26 27

28 1 Pursuant to Federal Rule of Civil Procedure 45(d)(2)(B)(i), Defendant Pharmacare 2 U.S., Inc. (“Defendant”) asks the Court to enforce the subpoena it served on third-party 3 Season 4, LLC (“Season 4”) in a case currently pending in this District.1 ECF No. 1. 4 Season 4, and Plaintiffs Linda Sunderland and Benjamin Binder (“Plaintiffs”), oppose the 5 motion. ECF Nos. 7, 8, 9, 43. For the reasons set forth below, Defendant’s motion to 6 compel is DENIED. 7 I. BACKGROUND 8 A. Underlying Litigation 9 Plaintiffs filed a putative class action against Defendant, alleging that Defendant 10 deceived consumers into purchasing Sambucol-branded elderberry diet supplements 11 (referred to herein as “Sambucol”) by misrepresenting that they contain a unique and 12 proprietary black elderberry extract developed by a virologist. See generally Sunderland, 13 No. 23-cv-1318-JES-AHG, Doc. No. 1. 14 B. The Subpoena 15 On January 9, 2024, Defendant served a subpoena on Season 4, requesting the 16 following information: 17 1. All documents relating to any Claimant, including any communications with or information collected from any Claimant, analysis of the scope or 18 amount of any claims, database information, forms, presentations, 19 spreadsheets, audio or visual recordings, photographs, images, and other any other data or data compilations. 20 2. All documents relating to any analysis done by you or sent to you by 21 any Person, including any Plaintiffs’ Law Firm or any other lawyer, regarding 22 any Claimant(s) or any of their Claims. 23 3. All documents relating to the referral of any Claimant(s) to a lawyer, including the date of and amount charged for the referral(s). 24 4. All documents relating to marketing or advertising directed to actual or 25

26 27 1 Sunderland, et al. v. PharmaCare, No. 23-cv-1318-JES-AHG (S.D. Cal.), hereinafter 28 referred to as the “underlying case” or “Sunderland.” 1 potential Claimants, or the solicitation of Claimants to join the Lawsuit. 2 5. All documents relating to your agreements with any Plaintiffs’ Law Firm or other lawyers regarding the Lawsuit. 3 6. All communications between you and any Plaintiffs’ Law Firm or other 4 lawyers related to any Claimants or their Claims. 5 7. All documents regarding any financial interest that any other Person, including any Plaintiffs’ Law Firm, has in you. 6 8. All documents relating to your ownership by any other Person, 7 including any Plaintiffs’ Law Firm. 8 9. All documents related to the Products not otherwise produced in 9 response to the other requests. 10 10. All documents related to the Lawsuit not otherwise produced in response to the other requests. 11 ECF No. 1-3 at 10–11. “Claimant” is defined in the subpoena as “all Persons that have 12 contacted You regarding potential claims against Defendant related to the PRODUCTS.” 13 Id. at 5. 14 Season 4 produced 16 documents in response to the subpoena, which included “pdfs 15 of the ClassAction.org website and a newsletter related to the Sunderland Litigation.” 16 ECF No. 1-2 at 3 ¶ 15. Season 4 also produced a privilege log to support withholding 17 certain documents based on the attorney-client privilege and attorney work product 18 protection. ECF No. 1-15. 19 C. The Instant Motion 20 On March 21, 2024, Defendant filed a motion to compel in the District of New 21 Jersey, the judicial district where Season 4 has its principal place of business. ECF No. 1. 22 Season 4 filed its opposition brief on April 1, 2024, consenting to transfer of the motion to 23 the Southern District of California and seeking to quash the subpoena. ECF No. 7. On 24 April 8, 2024, Defendant filed its reply brief and objected to the transfer of the motion. 25 ECF No. 12 at 18–19. Plaintiffs filed a motion to intervene, requesting that the Court issue 26 a protective order to prevent the disclosure of the documents at issue, which Defendant 27 opposed. ECF No. 15, 19. On May 21, 2024, the court in the District of New Jersey ordered 28 1 that Defendant’s motion be transferred to this Court. ECF No. 29. 2 Upon transfer to this district, Plaintiffs renewed their motion to intervene, which the 3 Court granted. ECF No. 34, 37. Plaintiffs filed an opposition and motion for protective 4 order on July 12, 2024,2 and a reply on July 19, 2024. ECF Nos. 42, 43, 44. The Court finds 5 this motion suitable for determination on the papers and without oral argument pursuant to 6 Civil Local Rule 7.1(d)(1). See ECF No. 42. 7 D. Season 4’s Connection to the Underlying Litigation 8 Season 4 operates the website “ClassAction.org,” which provides information about 9 pending consumer investigations and class actions, and facilitates connections between 10 consumers and law firms like Plaintiffs’ counsel so that consumers can obtain legal advice. 11 ECF No. 1-5. According to the ClassAction.org Terms of Use, Season 4 “provides users 12 with the ability to register a personal complaint or injustice that is forwarded to lawyers, 13 law firms, legal financial service providers, or other legal service providers sponsoring 14 submission forms.” ECF No. 1-6 at 3. The Terms of Use state that Season 4 “is not a law 15 firm,” “does not provide legal advice,” and providing information to Season 4 does not 16 “establish or constitute an attorney-client relationship.” Id. at 4. The Terms of Use also 17 provide that Season 4 does not “share your inquiries regarding possible inclusion in or 18 participation in a lawsuit or settlement with third parties other than the lawyers, law firms, 19 legal financial service providers, or other legal service providers who have requested such 20 information be forwarded to them” and that Season 4 “keeps your inquiries regarding 21 possible inclusion in or participation in a lawsuit or settlement confidential unless ordered 22 to produce them by a court of law.” ECF No. 1-6 at 5. 23 Plaintiff’s counsel, the Milberg Firm, engaged Season 4 to assist in litigation against 24 Defendant by creating an advertisement to advise consumers of potential claims regarding 25 Sambucol that was posted on ClassAction.org from June 26 through July 6, 2023. 26

27 2 Defendant disputes that the motion for protective order was filed timely, ECF No. 44 28 1 |} ECF No. 9 at 5-7. Season 4 created a webpage with information about Sambucol. The 2 || webpage states that lawyers are “investigating” whether Sambucol products “live up to 3 || their advertised claims and whether they were properly labeled under federal guidelines.” 4 || ECF No. 1-7. It provides additional information about elderberry health claims and states 5 || that “If you’re a New York or California resident and you purchased [Sambucol] in 2019 6 later, fill out the form on this page to find out how you can help.” Jd. Under a section 7 || titled “What You Can Do,” the webpage invites consumers to fill out this form:

9 Get in Touch 10 11 12 Last Name 13 14 15 Phone Number 16 7 Tivties

18 Case Details 19 20 21 Dclamar andPrivcy Notice 22 ?) What happens when | fill out this form 23

25 NS 26 || The webpage explains that after a consumer submits the form, “an attorney or legal 27 ||representative may reach out to you directly to address your concerns and explain how you 28 be able to help get a class action lawsuit started. It costs nothing to get in touch, and

1 you’re not obligated to take legal action if you don’t want to.” Id. 2 Both named plaintiffs in this action, Benjamin Binder and Linda Sunderland, 3 reviewed information about Sambucol on the ClassAction.org website. Plaintiff Binder 4 signed up to receive ClassAction.org newsletters several years ago. ECF No. 1-13 at 5-6. 5 Attorneys from the Milberg firm reached out to him after he submitted the form on the 6 Sambucol webpage. Id. at 7. Mr. Binder did not recall communicating with anyone at 7 ClassAction.org about the form. Id. Mr. Binder’s belief that Defendant made false 8 statements about Sambucol stemmed from his review of the ClassAction.org webpage. Id. 9 Plaintiff Sunderland learned about issues with Sambucol through the 10 ClassAction.org newsletter, which she received through email. ECF No. 1-14 at 3. She had 11 signed up to receive the newsletter sometime before that. Id. at 4. Ms. Sunderland looked 12 at the Sambucol webpage after receiving the newsletter and submitted the form on the 13 webpage. Id. at 6. After submitting the form, an attorney from the Milberg firm contacted 14 her and asked if she wanted to participate in a class action regarding Sambucol. Id. at 8. 15 II. PARTIES’ POSITIONS 16 Defendant’s subpoena “requests ten categories of documents that generally include: 17 documents and communications between Season 4 and potential claimants (including 18 Plaintiffs), documents between Season 4 and the attorneys who used Season 4’s advertising 19 services (including Milberg), and documents related to the ownership of Season 4.” 20 ECF No. 1-1 at 6.3 The subpoena specified a compliance date of January 24, 2024. 21 ECF No. 1-1 at 11; ECF No. 1-3. Upon Season 4’s request, Defendant agreed to extend the 22 deadline for compliance to February 5, 2024. ECF No. 1-1 at 11; ECF No. 1-11.4 On 23

24 25 3 Due to discrepancies between original and imprinted page numbers, page numbers for docketed materials cited in this Order refer to those imprinted by the court’s electronic case 26 filing system. 27 4 The Court rejects Defendant’s plainly frivolous argument that Season 4’s objections are untimely because Season 4 requested an extension to “respond” to the subpoena, rather 28 1 February 5, 2024, Season 4 served objections to the subpoena; and on February 19, 2024, 2 Season 4 produced several documents. ECF No. 1-1 at 11; ECF No. 1-12. Season 4 3 produced a privilege log on March 15, 2024. ECF No. 1-1 at 12. 4 In the instant motion, Defendant contends that Season 4 should be compelled to 5 produce additional information in response to the subpoena because it is relevant in the 6 underlying litigation. Defendant contends that Season 4’s objections are either waived as 7 untimely or have no merit, and that Season 4 impermissibly narrowed the scope of the 8 subpoena to a one-month. 9 Season 4 and Plaintiffs dispute that the subpoena seeks relevant information. They 10 object to the subpoena on a number of grounds, including attorney client-privilege, burden, 11 and the privacy of unnamed class members. Plaintiffs also moved for a Protective Order. 12 III. LEGAL STANDARD 13 The Court has broad discretion and authority to manage discovery. Vinole v. 14 Countrywide Home Loans, Inc., 571 F.3d 935, 942 (9th Cir. 2009) (“Whether or not 15 discovery will be permitted . . . lies within the sound discretion of the trial court.”); cf. U.S. 16 Fid. & Guar. Co. v. Lee Invs. LLC, 641 F.3d 1126, 1136 n.10 (9th Cir. 2011) (“District 17 courts have wide latitude in controlling discovery, and their rulings will not be overturned 18 in the absence of a clear abuse of discretion.” (internal quotation marks and citations 19 omitted)); see also Laub v. U.S. Dep't of Interior, 342 F.3d 1080, 1093 (9th Cir. 2003). 20 This discretion extends to whether to grant a motion to compel compliance with a Rule 45 21 subpoena for documents. See Garrett v. City & Cnty. Of San Francisco, 818 F.2d 1515, 22 1519 (9th Cir. 1987); see also Sacks Holdings, Inc. v. Vaidya, No. 24-MC-80197-PHK, 23 2024 WL 4730424, at *2 (N.D. Cal. Nov. 7, 2024). 24

25 deadlines for objecting versus responding to a subpoena, and neither did the email 26 correspondence from Defendant’s counsel agreeing to the extension. See, e.g., Sacks 27 Holdings, Inc. v. Vaidya, No. 24-MC-80197-PHK, 2024 WL 4730424, at *6 (N.D. Cal. Nov. 7, 2024) (objecting to a subpoena versus responding to a subpoena is a “distinction 28 1 The scope of discovery allowed under a Rule 45 subpoena is the same as the scope 2 of discovery permitted under Rule 26(b). In re Subpoena to Apple Inc., No. 3:13-cv-254- 3 MOC-DSC, 2014 WL 2798863, at *2 (N.D. Cal. June 19, 2014); see Fed. R. Civ. P. 45, 4 advisory committee’s note to 1970 amendment (“[T]he scope of discovery through a 5 subpoena is the same as that applicable to Rule 34 and the other discovery rules."); Fed. R. 6 Civ. P. 34(a) (“A party may serve on any other party a request within the scope of Rule 7 26(b).”). However, Rule 45 specifies expressly that “[a] party or attorney responsible for 8 issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden 9 or expense on a person subject to the subpoena.” Fed. R. Civ. P. 45 (d)(1); see also Fed. R. 10 Civ. P. 45 (d)(3)(A)(iv) (“On timely motion, the court for the district where compliance is 11 required must quash or modify a subpoena that ... (iii) requires disclosure of privileged or 12 other protected matter, if no exception or waiver applies; or (iv) subjects a person to undue 13 burden.”). 14 A nonparty commanded to produce documents pursuant to a Rule 45 subpoena may 15 challenge the subpoena in one of three ways: (1) by written objection; (2) by moving to 16 quash or modify the subpoena; or (3) by moving for a protective order. See Fed. R. Civ. P. 17 26(c); Fed. R. Civ. P. 45 (d)(2)(B), (d)(3). If a nonparty responds to a Rule 45 subpoena 18 with objections, the party who served the subpoena may move for an order compelling 19 compliance. Fed. R. Civ. P. 45(d)(2)(B)(i). Subpoena-related motions under Rule 45 must 20 be brought in "the court for the district where compliance is required." Fed. R. Civ. P. 21 45(d)(2)(B)(i), (d)(3)(A)–(B), (e)(2)(B). Though the District of New Jersey is the “district 22 where compliance is required,” the Southern District of California (the issuing court) may 23 rule on the motion to compel “if the person subject to the subpoena consents.” Fed. R. Civ. 24 P. 45(f); see ECF No. 7 at 50 (“Season 4 expressly consents to this Motion being transferred 25 to the U.S. District Court for the Southern District of California”); ECF No. 29 (District of 26 New Jersey ordering case be transferred). 27 28 1 IV. DISCUSSION 2 The Court has considered the arguments of counsel and the relevant court rulings on 3 the topic and is persuaded that Defendant’s motion should be denied. The information that 4 Defendant seeks is of marginal relevance at best and is not proportional to the needs of the 5 underlying case. See Rivera v. NIBCO, Inc., 364 F.3d 1057, 1072 (9th Cir. 2004); Vena v. 6 Moore, No. 22cv437-W-BLM, 2023 WL 6194315, at *2 (S.D. Cal. Mar. 24, 2023). 7 Federal Rule of Civil Procedure 26(b)(1) defines the scope of discovery as “any 8 nonprivileged matter that is relevant to any party’s claim or defense and proportional to the 9 needs of the case, considering the importance of the issues at stake in the action, the amount 10 in controversy, the parties’ relative access to relevant information, the parties’ resources, 11 the importance of discovery in resolving the issues, and whether the burden or expense of 12 the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1). The concept 13 of proportionality was added to Rule 26 in 2015. Medicinova Inc. v. Genzyme Corp., No. 14 14cv2513-L-KSC, 2017 WL 2829691, at *5 (S.D. Cal. June 29, 2017). The intent of the 15 2015 amendment was to bring about “[a] change in the legal culture that embraces the leave 16 no stone unturned and scorched earth approach to discovery.” Roberts v. Clark Cnty. Sch. 17 Dist., 312 F.R.D. 594, 604 (D. Nev. 2016). Following the amendment, a party is required 18 to address both relevancy and proportionality when seeking to compel discovery. In re 19 Bard IVC Filters Prods. Liab. Litig., 317 F.R.D. 562, 564 (D. Ariz. 2016) (“Relevancy 20 alone is no longer sufficient—discovery must also be proportional to the needs of the 21 case.”); Gilead Scis., Inc. v. Merck & Co., Inc., No. 5:13-cv-04057-BLF, 2016 WL 146574, 22 at *1 (N.D. Cal. Jan. 13, 2016) (“[A] party seeking discovery of relevant, non-privileged 23 information must show, before anything else, that the discovery sought is proportional to 24 the needs of the case.”). 25 Defendant does not mention proportionality in the multiple briefs it submitted on 26 this motion, much less demonstrate that the requests here are proportional. Nonetheless, 27 the Court will assess Defendant’s relevance arguments and engage in the required 28 1 proportionality analysis that the parties overlooked. 2 A. Documents or Communications Between Season 4 and Potential Claimants 3 Defendant argues that documents in this category are relevant because they “are 4 likely to contain information about the reasons consumers purchased the Products and 5 whether those reasons align with the allegations in the Complaint.” ECF No. 1-1 at 14. The 6 requests are not limited to Plaintiffs; they extend to any consumer who submitted the form 7 on the ClassAction.org Sambucol webpage. ECF No. 1-3 at 5. That form contained fields 8 for the consumer’s name, email, phone number, zip code, and “case details.” ECF No. 1-7 9 at 2. It did not ask consumers to provide the reasons why they purchased Sambucol. Id. 10 After submitting the forms to Season 4, Plaintiffs’ follow-up communications were with 11 Plaintiffs’ counsel, not Season 4. ECF No. 1-13 at 7; ECF No. 1-14 at 8. 12 Defendant has not provided any information that would suggest that Plaintiffs’ 13 experience was different from other consumers who submitted the form. Because the form 14 did not ask for the reasons why consumers purchased Sambucol, and there is no suggestion 15 that Season 4 engaged in any follow-up communications with the consumers (including 16 Plaintiffs), the information sought in this category is not relevant. There is no need to 17 analyze whether it is proportional. 18 B. Documents or Communications Between Season 4 and Plaintiffs’ Counsel 19 Defendant argues that documents in this category are relevant because they “may 20 also include analysis of potential claimants or their claims” and because they relate to 21 Plaintiffs’ counsel’s ability to represent the class under Rule 23(g). Defendant cites to Stock 22 v. Integrated Health Plan, Inc., 241 F.R.D. 618 (S.D. Ill. 2007) and Bodner v. Oreck Direct, 23

24 25 5 Defendant also argues in conclusory fashion that Requests 9 and 10 in the subpoena, which are catch-all requests asking for documents “related to the Products not otherwise 26 produced” and “related to the Sunderland Litigation not otherwise produced” seek relevant 27 information. ECF No. 1-1 at 16. But these requests, and this argument, are so patently vague and overbroad that they do not meet the basic standards for specificity in discovery 28 1 LLC, No. C 06-4756 MHP, 2007 WL 1223777 (N.D. Cal. Apr. 25, 2007) to support this 2 argument. 3 In Bodner, the court denied a motion for class certification after finding that the 4 proposed plaintiff would not adequately represent the class because “virtually all of 5 plaintiff’s knowledge regarding this matter has come from his attorneys.” 2007 WL 6 1223777, at *1. The court also criticized the plaintiff’s firm for its “improper approach to 7 consumer litigation.” Id. at *2. Bodner does not move the needle here because it is focused 8 on the issue of class certification and does not address the scope of discovery. 9 In Stock, the court granted a motion to quash a defendant’s subpoena seeking 10 information about the plaintiffs’ counsel in a class action. 241 F.R.D. at 620. Although the 11 court acknowledged a right to seek discovery that relates to the adequacy of proposed class 12 counsel, it found that the discovery sought in the subpoena was not “sufficiently probative 13 of relevant facts to aid the Court in determining whether [plaintiffs’ counsel] will 14 adequately represent the proposed class here.” Id. at 624. Similarly, Defendant here does 15 not explain how the information sought will shed any light on whether Plaintiffs’ counsel 16 can adequately represent the class. To the extent that Defendant is suggesting that this case 17 is lawyer-driven, like Bodner, the relevant communications are between Plaintiffs and 18 Plaintiffs’ counsel, and those communications are outside the scope of the subpoena. 19 Even if Defendant could make a showing of relevance with respect to this category, 20 the information sought is not proportional. The process that Plaintiffs’ counsel used to 21 identify the Plaintiffs has been adequately disclosed through the documentation produced 22 by Season 4. Defendant deposed Plaintiffs and probed their knowledge of the claims, how 23 they interacted with Season 4, and whether this is attorney-driven litigation. There is no 24 need to compel further information from Season 4 in this category. 25 C. Documents or Communications Regarding the Ownership of Season 4 26 Defendant argues that documents in this category are relevant “because they also 27 relate to Milberg’s advertisement to, and recruitment of, potential clients and is [sic] 28 therefore is germane to Rule 23’s adequacy requirement.” ECF No. 1-1 at 15. Rule 23(a)(4) 1 || requires a court to review whether the named plaintiffs and their counsel have any conflicts 2 ||of interest with other class members. Kim v. Allison, 87 F.4th 994, 1000 (9th Cir. 2023). 3 Conflicts have to be “fundamental to the suit” and “go to the heart of the litigation” to 4 || preclude adequacy. /d. Defendant has not made any attempt to explain how the ownership 5 ||of Season 4 may affect adequacy or demonstrate conflicts of interest here. ““Conclusory, 6 || unsupported arguments’ as to why the issuing party believes they are entitled to an order 7 || compelling discovery are insufficient to establish relevancy.” Apple Inc. v. Qualcomm Inc., 8 ||No. 317-cv-00108-GPC-MDD, 2018 WL 3861893, at *4 (S.D. Cal. Aug. 14, 2018); 9 || Leadership Stud., Inc. v. Blanchard Training and Dev., Inc., No. 15cv1831-WQH-KSC, 10 }}2017 WL 2819847, at *8 (S.D. Cal. June 28, 2017) (“Based on the foregoing, plaintiff's 11 |}conclusory arguments about relevance and proportionality are not enough to convince the 12 ||Court that it is entitled to an order compelling defendant to produce all of the 13 || [documents]’’). Defendant has not stated any grounds for compelling further information 14 ||in this category. 15 Vv. CONCLUSION 16 As the moving party, Defendant bears the threshold burden of demonstrating that 17 || the information sought in the subpoena is relevant and proportional. Defendant has failed 18 meet this burden, so there is no need to address Season 4 or Plaintiffs’ objections. The 19 || Court DENIES Defendant’s motion to enforce subpoena. 20 IT IS SO ORDERED. 21 ||Dated: January 15, 2025 22 Mio 4. Hiolaruk □ 23 Honorable Allison H. Goddard United States Magistrate Judge 25 26 27 28