291 F.R.D. 544
D. Nev.2013Background
- FTC moved for protective order regarding 19 consumer subpoenas; AMG sought discovery of FTC privilege log and unredacted third-party documents; motions to compel and for partial withdrawal were filed and a hearing occurred May 20, 2013; court had previously ordered privilege log production and set briefing deadlines; FTC sought to limit broad bank records, credit histories, and other personal data unrelated to plaintiffs’ transactions with defendants; court clarified time frames and need for redactions, balancing privacy with relevance; a list of consumers who took payday loans after declarations was ordered to be filed under seal by May 24, 2013; the court ultimately granted in part and denied in part the protective order and the motion to compel, with some redactions and time-frame restrictions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether subpoenas to nonparties are overbroad and require modification | FTC: subpoenas invade privacy and seek unrelated financial data beyond plaintiffs’ transactions | AMG: documents test witnesses’ experience and financial condition, relevant to deception defense | Partially granted; time-frame and scope limited; certain categories struck or narrowed |
| Whether bank records must be unredacted | FTC: redactions protect privacy but wrongly block relevant context | AMG: redacted data relevant to credibility and defenses | Redactions permitted; only payday-loan-related transactions to be disclosed (60 days before/after); other data redacted |
| Whether AMG is entitled to a detailed privilege log and in-camera review | AMG: need precise, document-by-document basis for privilege assertions | FTC: log currently sufficient; in-camera review not warranted | Denied as moot; FTC produced privilege log; no in-camera review required |
| Whether AMG's motion to withdraw part of its motion to compel should be granted | AMG sought withdrawal after resolution of two documents | Granted in part; portion regarding Request for Production 1 withdrawn |
Key Cases Cited
- FTC v. Stefanchik, 559 F.3d 924 (9th Cir. 2009) (deceptive practices analysis under FTC Act; materiality in context of statements)
- FTC v. Cyberspace.com, LLC, 453 F.3d 1196 (9th Cir. 2006) (materiality and deception in online advertising; broad discovery rules)
- FTC v. Pantron I Corp., 33 F.3d 1088 (9th Cir. 1994) (materiality and deception evaluation timeframe for FTC actions)
- National Wildlife Federation v. U.S. Forest Service, 861 F.2d 1114 (9th Cir. 1988) (deliberative process privilege protection)
- Fernandez v. Fernandez, 231 F.3d 1240 (9th Cir. 2000) (deliberative process privilege / interwoven facts and deliberations)
- Lahr v. National Transportation Safety Bd., 569 F.3d 964 (9th Cir. 2009) (separation of raw data from analysts’ deliberative material protected)
- Oppenheimer Fund v. Sanders, 437 U.S. 340 (U.S. 1978) (discovery relevance broader for admissible evidence; discovery standard)