A compelling dispute

Stanley v. Bayer Healthcare LLC, 2011 WL 5569761 (S.D. Cal.)

Stanley purchased Phillips’ Colon Health Probiotic Caps (PCH) and sued for false advertising, alleging that Bayer’s advertising that PCH's unique combination of probiotic bacteria strains provides digestive benefits and improved immune health unavailable from other similar products is false. She sued for violations of the California CLRA and UCL, breach of express warranty and unjust enrichment.

Bayer sought discovery on various matters. Discovery can cover anything nonprivileged and relevant. The court granted Bayer’s motion to compel Stanley to respond to requests for production concerning her medical records and history, arguing that Stanley put her medical condition directly at issue by alleging that PCH didn’t deliver the promised health benefits. Stanley responded that the requests were overbroad and that she wasn’t claiming physical injury.

The court found physical injury wasn’t necessary to make the records relevant. Some of the records were relevant to Bayer’s argument that “an alternative explanation exists” for PCH’s alleged failure to provide health benefits. Thus, Stanley was ordered to produce medical records relating to gastrointestinal health, as well as medical records reflecting any questions or advice about probiotics; Bayer could also re-depose her on her medical history. This would all be covered by a protective order.

Bayer also prevailed in its request for production of the attorney retention/fee agreement in this case. Bayer argued that it was relevant to Stanley’s fitness to serve as class representative and the law firm’s fitness to serve as class counsel. The court reviewed it in camera and found nothing privileged, and thus ordered production (though it didn’t seem to find relevance/potential relevance explicitly).

Finally, the court also granted Bayer’s request to compel production of an unredacted Ralph’s grocery store receipt showing the purchase; Stanley initially produced a receipt redacted of every other purchase, arguing that the other purchases weren’t likely to lead to the discovery of admissible evidence. (When people say “do you really want to make a federal case out of this?” I wonder if this is what they’re thinking.) After reviewing the receipt in camera, the court found that the receipt didn’t contain any sensitive information, and “given Plaintiff's deposition testimony,” the court found the receipt to contain relevant information. (Now I’m curious as to what that was.)