*1 On January 12, 2017, plaintiff Veda Woodard filed a motion to compel defendant Dr. Mehmet C. Oz (“Dr. Oz”) to further respond to plaintiff Woodard's first set of discovery requests. Docket no. 131. The motion is supported and opposed in a Joint Stipulation (“JS”), along with declarations and exhibits. Docket no. 132. Plaintiff asks the court to compel Dr. Oz to provide further responses to: requests for production of documents (“RPDs”) numbers 2–5, 7, 9–11, 13, 15, 17–25, 30–35, 37–43, 45–48, 50, and 51; and Interrogatory numbers 2–7.

As permitted by the court's Local Rules, on February 7, 2017, plaintiff filed a Supplemental Memorandum in support of her motion to compel (“P. Supp. Mem.”). Docket no. 133. Nine days later, Dr. Oz filed a Response to Plaintiff's Supplemental Memorandum. Docket no. 136. The Local Rules permit no such “Response.” Rather, they permit each party to file a supplemental memorandum not later than fourteen days prior to the hearing. L.R. 37–2.3. As defendant's Response was an untimely supplemental memorandum, the court disregards it.

This motion came before the court for a hearing on February 21, 2017. The court grants in part and denies in part plaintiff's motion to compel for the reasons that follow.

On February 2, 2016, plaintiff Veda Woodard filed a putative class action complaint against: defendants Lee Labrada, Labrada Bodybuilding Nutrition, Inc., Labrada Nutritional Systems, Inc., Naturex, Inc., and Interhealth Nutraceuticals, Inc. (collectively, the “Manufacturing Defendants”); and defendants Dr. Oz, Harpo Productions, Inc., Zoco Productions, LLC, Entertainment Media Ventures, Inc., and Sony Pictures Television, Inc. (collectively, the “Media Defendants”). Plaintiff asserts claims arising from allegations that the Media Defendants misrepresented the weight loss benefits of various weight loss supplement products manufactured by the Manufacturing Defendants. Plaintiff seeks to represent a putative class of purchasers of these products. Plaintiff Woodard, joined by two other plaintiffs, filed a First Amended Complaint on June 2, 2016. The FAC raises various state and federal statutory and common law fraud, false advertising, and other consumer protection claims.

Plaintiff Woodard, a viewer of “The Doctor Oz Show” (the “Show”), and a consumer of the weight loss supplements, alleges Dr. Oz fraudulently promoted and marketed the weight loss benefits of Labrada Dual Action Fat Buster with Supercitrimax Garcinia Cambogia, Labrada Fat Loss Optimizer with Svetol Green Coffee Bean Extract, and Labrada Brand Raspberry Ketones on his daytime television show. Plaintiff specifically asserts Dr. Oz, a renowned celebrity physician and television personality, was paid by the Manufacturing Defendants in exchange for promoting the weight loss products at issue, but he failed to disclose his endorsements to his viewers. Additionally, plaintiff alleges the Media Defendants produced and/or distributed the Show. Plaintiff claims each of the defendants acted as each other's agents and aided and abetted one other, such that they are all jointly liable for Dr. Oz's misrepresentations on the Show.

*2 Plaintiff asserts Dr. Oz misrepresented his affiliation with products he endorses. Plaintiff has identified three specific instances of misrepresentations in or around 2012 by Dr. Oz on the Show, wherein Dr. Oz claimed scientific studies had found consumers of “green coffee extract,” garcinia cambogia, and “raspberry ketones” experienced substantial weight loss. The FAC alleges Dr. Oz made false and misleading statements by claiming to provide consumers and viewers with an objective medical opinion about products Dr. Oz actually endorsed. Plaintiff notes that in 2014, Dr. Oz provided congressional testimony at a hearing related to false and deceptive sales of weight loss products. At the hearing, Dr. Oz testified that he did not endorse any such products, though he commented on the benefits of weight loss supplements.

While Dr. Oz has produced some relevant documents and responses in this action, plaintiff seeks further responses to her discovery requests. Plaintiff's discovery requests relate to the Media Defendants' First Amendment defense and corresponding Special Motion to Strike, filed on April 11, 2016 pursuant to California Code of Civil Procedure Section 425.16 (“anti-SLAPP Motion”) (docket no. 49).

On May 12, 2016, the court issued an order granting in part and denying in part plaintiff's motion to defer consideration of the anti–SLAPP motion. Docket no. 85. The court deferred consideration of Media Defendants' anti–SLAPP motion “until after the close of discovery.” Id. at 16. In so deferring ruling on the motion, the court noted plaintiff sought discovery under Rule 56(d) on the following issues: the Media Defendants' sponsorship agreements with the Manufacturing Defendants; financial involvement of the Media Defendants with the Manufacturing Defendants; and discrepancies within the provided transcripts of the videos defendants attempt to introduce in support of their position. Id. at 15. Encompassed within the issue of Media Defendants' sponsorship agreements with the Manufacturing Defendants were two sub-issues, as stated by the court: whether the Media Defendants have a financial interest with respect to the products endorsed on the Show; and whether Dr. Oz's promotions of the products can be considered commercial speech. Id.

Plaintiff served Dr. Oz with her First Set of Requests for Production of Documents and First Set of Interrogatories on June 3, 2016. Dr. Oz provided an initial response on July 22, 2016, then supplemented his responses on September 26, 2016 and again on December 2, 2016.

Here, plaintiff moves to compel Dr. Oz to provide further responses to thirty-eight RPDs and six interrogatories. The requests for production relate to ten categories identified by plaintiff: (1) Dr. Oz's anti–SLAPP motion (RPD no. 2); (2) Dr. Oz's financial interest in his Show and whether he has economic motivations to reference the weight loss supplements on his Show (RPD nos. 50, 51); (3) Dr. Oz's agreements with other defendants (RPD nos. 17–23); (4) Dr. Oz's sponsorship or endorsement agreements regarding the relevant dietary supplements (RPD nos. 25, 30–33); (5) Dr. Oz's statements regarding weight loss supplements (RPD nos. 3–5); (6) Marketing research or consumer perceptions about the Show and its segments concerning dietary supplements (RPD nos. 7, 9–11); (7) Dr. Oz's policies for complying with “Payola” or “Plugola” disclosure requirements (RPD no. 24); (8) Mentions of “Supercitrimax,” “Svetol,” “Labrada,” or other relevant keywords relating to the weight loss products and the Show (RPD nos. 34, 35, 37–43, 45–47); (9) Dr. Oz's congressional testimony and Federal Trade Commission (“FTC”) action involving endorsements of green coffee beans on the Show (RPD nos. 13, 15); and (10) Insurance policies that may provide coverage (RPD no. 48). JS at 6–7. The disputed interrogatories concern 2012 episodes of the Show (Interrogatory no. 2), whether individual weight loss supplements were specific brands (Interrogatory nos. 3, 4), compensation Dr. Oz received from particular Manufacturing Defendants (Interrogatory nos. 5, 6), and Dr. Oz's decision to state that garcinia cambogia is a “Dual Action Fat Buster” (Interrogatory no. 7). Id. at 95–100.

*3 In addition to inadequate responses, plaintiff also contends Dr. Oz provided confusing conditional responses to many of these discovery requests. See, e.g., id. at 11. Defendant raises various objections to each of these categories of RPDs and interrogatories, including overbreadth, undue burden, vagueness, ambiguity, lack of relevance, and disproportionality. But defendants also broadly argue that these discovery requests are outside of the scope of discovery permitted by the court's May 12, 2016 order. Id. at 4–5. Defendants state that to the extent the discovery sought goes to the issue of whether Dr. Oz's statements were “commercial speech” in the anti-SLAPP analysis, it is outside of the scope of the court's discovery order. Id. at 21.

Fed. R. Civ. P. 26(b) permits “discovery regarding any nonprivileged matter that is relevant to any party's claim or defense.” Fed. R. Civ. P. 26(b)(1). To be relevant, the information sought “need not be admissible in evidence”; however, it must be “proportional to the needs of the case.” Id. In determining the needs of the case, the court “consider[s] the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Id. A “relevant matter” under Rule 26(b)(1) is any matter that “bears on, or that reasonably could lead to other matters that could bear on, any issue that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351, 98 S. Ct. 2380, 57 L. Ed. 2d 253 (1978). Relevancy should be “construed ‘liberally and with common sense’ and discovery should be allowed unless the information sought has no conceivable bearing on the case.” Soto v. City of Concord, 162 F.R.D. 603, 610 (N.D. Cal. 1995) (quoting Miller v. Pancucci, 141 F.R.D. 292, 296 (C.D. Cal. 1992)).

As an initial matter, the court considers the effect of the court's May 12, 2016 order, if any, on the scope of discovery permitted at this juncture in the case. Defendant argues the court's order limited discovery only to the three issues as to which plaintiff said she needed discovery to oppose the anti-SLAPP motion: Media Defendants' sponsorship agreements with Manufacturing Defendants; financial involvement of Media Defendants with Manufacturing Defendants; and discrepancies within the transcripts of videos defendants attempt to introduce in support of their position. JS at 4 (citing docket no. 85 at 15).

After reviewing the May 12, 2016 order, the court finds the order effects no limitation on the scope of discovery that may be conducted. Although the court recognized plaintiff sought discovery on particular issues to oppose the anti–SLAPP motion, and the court deferred ruling on the anti–SLAPP motion to give plaintiff the opportunity to obtain such discovery first, the court nowhere stated it was limiting the scope of discovery plaintiff could conduct to just those issues. Indeed, at a scheduling conference six months later, the court set a general discovery cutoff of May 30, 2018. Consequently, objections by defendant that the discovery at issue here falls outside the scope of permissible discovery under the court's May 12, 2016 order are overruled.

The court also notes that defendant's Rule 26(d) objection, requiring parties to confer pursuant to Rule 26(f) prior to seeking discovery, is rejected as moot in light of the parties Rule 26(f) conference on September 21, 2016. Houchin Decl., ¶ 17. In any event, plaintiff's discovery requests can be considered under Rule 26(d)(2), allowing for early Rule 34 discovery requests to be considered served at the first Rule 26(f) conference on September 21, 2016.

*4 Another issue before the court concerns whether Dr. Oz's responses to many of the discovery requests at issue were improper conditional responses. Plaintiff argues Dr. Oz provided confusing conditional responses that failed to specify whether all responsive documents were being withheld or produced. JS at 19–20. Defendant argues his use of the conditional response “Subject to and without waiving the foregoing objections” throughout the discovery requests was not improper, and Dr. Oz was not required to withdraw such responses or other objections. Id. at 23.

“Conditional responses and/or the purported reservation of rights by a responding party are improper and ultimately have the effect of waiving the objections to the discovery requests.” Herrera v. AllianceOne Receivable Management, Inc., 2016 WL 1182751, at *3 (S.D. Cal. Mar. 28, 2016) (citing Sprint Communications Co. v. Comcast Cable Communications, LLC, 2014 WL 545544 at *2 (D. Kan. Feb. 11, 2014), modified 2014 WL 569963 (D. Kan. 2014). Discovery responses including the phrases “subject to” and “without waiving its objections” can confuse or mislead the requesting party as to whether the responding party has fully or only partially responded to the discovery request. Estridge v. Target Corp., 2012 WL 527051, at *1–2 (S.D. Fla. Feb. 16, 2012).

Dr. Oz cites R. Fellen, Inc. v. Rehabcare Group, Inc., 2016 WL 1224064 (E.D. Cal. Mar. 29, 2016), for the proposition that a responding party need not withdraw conditional responses. The court agrees up to a point: defendant need not waive his objections when responding. Nonetheless, Dr. Oz's discovery responses do not simply preserve objections, but in fact are evasive as to whether all requested documents have been produced or withheld. It is reasonable for plaintiff to believe, based on Dr. Oz's conditional responses, that defendant has not produced or agreed to produce all responsive documents when Dr. Oz supplemental response to all of the RPDs was: “Subject to and without waiving the foregoing objections ... Defendant will produce copies of responsive documents ....” See Houchin Decl., Ex. 15 at 4. This language indicates defendant will produce some responsive documents but may be withholding other responsive documents. Where, as set forth below, the court grants plaintiff's motion to compel, Dr. Oz must provide further supplemental responses affirming either that he has no responsive documents in his possession, custody, or control, or that all responsive documents are being produced.

RPD number 2 seeks documents that Dr. Oz intends to rely on to support defendants' anti-SLAPP motion. Houchin Decl., Ex. 1 at 14. Here, plaintiff contends RPD number 2 is directly relevant to this action. Defendant specifically objects that RPD number 2 is vague and ambiguous, while also stating in the JS that Dr. Oz has produced all responsive documents for this discovery request and no documents are being withheld on the basis of the objections stated. JS at 14.

Ninth Circuit cases have determined that the motion to strike provisions of California's anti-SLAPP [strategic lawsuit against public participation] statute apply in diversity cases. See United States ex rel. Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963 (9th Cir. 1999). The anti-SLAPP statute asks “whether the claims rest on the SLAPP defendant's protected First Amendment activity and whether the plaintiff can meet the substantive requirements California has created to protect such activity from strategic, retaliatory lawsuits.” Makaeff v. Trump Univ., LLC, 736 F.3d 1180, 1181–82 (9th Cir. 2013). The anti–SLAPP statute creates a theory upon which a defendant may dispose of a case before trial to prevent strategic lawsuits against public participation. Cal. Civ. Proc. Code § 425.16.

*5 It is plainly evident that documents which Dr. Oz intends to rely upon in his anti–SLAPP motion are directly relevant to defendants' defense in this action. Dr. Oz.'s anti–SLAPP motion argues his discussion of the weight loss supplements at issue on the Show was an act in furtherance of his right to free speech on a public issue. See McDonald Decl., Ex. A2. As plaintiff notes, the anti–SLAPP motion acts as an affirmative defense to plaintiff's putative class claims. JS at 10. Thus, there is great need for these documents in this case, which Dr. Oz exclusively controls and possesses, and the documents are discoverable under Rule 26. Dr. Oz argues the request is vague and ambiguous because it states the anti–SLAPP motion “will be heard after the close of discovery.” See JS at 7, 12. Although the parties dispute when the motion will be heard, this dispute is irrelevant to the discovery request. The court finds the words at the end of RPD number 2—namely, “that will be heard after the close of discovery”—are surplusage that may be disregarded. The request clearly calls for all documents on which defendant will rely in support of the motion, whenever it is heard.

Dr. Oz states he has produced all responsive documents, but he does not clearly state this in his responses. As discussed above, he merely states that, subject to his objections, he will produce responsive documents. Accordingly, plaintiff's motion to compel is GRANTED as to RPD number 2. Defendant Dr. Oz is ordered to produce all documents responsive to this requests, and to serve a verified supplemental response unambiguously stating he has done so or that he has no such documents. If Dr. Oz withholds any documents based on privilege, he must clearly state this and produce a privilege log describing such documents.

RPD number 50 seeks any sponsorship or endorsement agreements Dr. Oz had, including those relating to Svetol or Supercitrimax ingredients. JS at 14; Houchin Decl., Ex. 1 at 23. RPD number 51 similarly seeks these sponsorship agreements, including as it pertains to Labrada products. JS at 15; Houchin Decl., Ex. 1 at 23. Plaintiff argues these RPDs are relevant because they relate to whether Dr. Oz has an economic motivation for endorsing the weight loss products, which were discussed on his Show. JS at 18. Dr. Oz disputes the relevance of these RPDs to the extent it seeks agreements with non-Manufacturing Defendants, because they do not relate to plaintiff's claims that Dr. Oz has a financial interest with Manufacturing Defendants' products. Id. at 21. Dr. Oz also asserts vagueness, ambiguity, overbreadth, and undue burden objections. Id. at 22–23. Although Dr. Oz states he has not withheld any documents based on his objections, his supplemental responses do not clearly state this.

The court finds RPD numbers 50 and 51 to be relevant to the extent Dr. Oz had agreements with the Manufacturing Defendants. Any endorsement or sponsorship agreements Dr. Oz had with any of the Manufacturing Defendants would relate to whether Dr. Oz was financially motivated to communicate to his Show's viewers about the benefits of the weight loss supplements. This financial motive, if any, would undermine Dr. Oz's claim that he was engaging in free speech about a public issue, as it may fall under the commercial speech exception to the anti–SLAPP rule. See Rezec v. Sony Pictures Ent., Inc., 116 Cal. App. 4th 135, 140, 10 Cal. Rptr. 3d 333 (2004) (“When ... the communicator has an economic motivation in publishing the advertisement, there is ‘strong support’ for the conclusion that the advertisement is commercial speech. This is true even though the communication also discusses important public issues.”) (quoting Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 66–67, 103 S. Ct. 2875, 77 L. Ed. 2d 469 (1983)). The court in Rezec explained that California's anti-SLAPP statute does not apply for commercial speech. Rezec, 116 Cal. App. 4th at 140. Here, discovery into Dr. Oz's endorsement or sponsorship agreements is relevant to determining whether defendants' anti-SLAPP affirmative defense is viable. But the court agrees with Dr. Oz that any sponsorship agreements with parties besides Manufacturing Defendants would not be relevant to the issues in this case.

*6 In consideration of Dr. Oz's vague and ambiguous objection, the court finds defendant has not articulated a sufficient and specific ground. Dr. Oz's objection that “written understandings” is undefined and therefore not understandable is unreasonable and without merit. An ordinary interpretation and construction of the phrase “written understandings” would be understandable for a party in this action. Dr. Oz's overbreadth objection, that plaintiff cannot seek “all” agreements “throughout the history of time” is similarly rejected. Since the court has limited the relevance of Dr. Oz's agreements to only those with Manufacturing Defendants, each and every such agreement is discoverable.

The court rejects Dr. Oz's remaining undue burden objection as mere boilerplate. See Josephs v. Harris Corp., 677 F.2d 985, 992 (3d Cir. 1982) (“The party resisting discovery must show specifically how ... each question is overly broad, burdensome or oppressive.”); Holt v. Nicholas, 2014 WL 250340, at *3 (E.D. Cal. Jan. 22, 2014) (noting that because Rule 34 requires that a party responding to a RPD “include the specifics of the objection and how that objection relates to the documents” sought, “[g]eneric, boilerplate objections to discovery are not sufficient”) (citations omitted). Although defendant suggests the requests are overbroad as to time, there is no indication Dr. Oz had agreements with Manufacturing Defendants over an extensive time period.

Dr. Oz also asserted privilege and work-product objections in his initial responses to RPD numbers 50 and 51, but his responses fail to satisfy Rule 26(b)(5)(A), which requires that parties withholding otherwise discoverable information on the ground of privilege must expressly claim the privilege. Fed. R. Civ. P. 26(b)(5)(A) (party claiming the privilege must “describe the nature of the documents, communications, or tangible things not produced or disclosed ... in a manner that ...will enable other parties to assess the claim”); see alsoBurlington Northern & Santa Fe Ry. Co. v. U.S. Dist. Court, 408 F.3d 1142, 1148–49 (9th Cir. 2005). Further, Dr. Oz has not produced a privilege log. JS at 19.

Thus, plaintiff's motion to compel is GRANTED as to RPD numbers 50 and 51, but limited to agreements with the Manufacturing Defendants. Dr. Oz is ordered to produce all documents responsive to these requests, and to produce verified supplemental responses unambiguously stating he has done so or that he has no such documents. If Dr. Oz withholds any documents based on privilege, he must clearly state this and produce a privilege log describing such documents.

RPD numbers 17–23 call for agreements between Dr. Oz and the following named co-defendants: Harpo, Zoco, Sony, Naturex, Interhealth, Labrada, and Entertainment Media Ventures. JS at 24–32; Houchin Decl., Ex. 1 at 19–20. Plaintiff asserts these agreements are relevant to show Dr. Oz entered into general partnership agreements with Media Defendants, who “aided and abetted” Dr. Oz's fraud, while agreements with Manufacturing Defendants are probative of his motivation for engaging in commercial speech. JS at 33–35. Defendant raises general objections concerning scope of discovery and other boilerplate arguments, addressed above. Id. at 37–40.

RPD numbers 17–23 call for documents relevant to, inter alia, Dr. Oz's First Amendment affirmative defense. The existence of any agreements between Dr. Oz and other defendants would relate to the economic motive, including through sponsorship or endorsement agreements, Dr. Oz had in engaging in commercial speech by advertising and promoting the weight loss supplements on his Show. Specifically, Dr. Oz's agreements with Media Defendants pertain to their corporate ties and business operations involving the Show, while agreements with Manufacturing Defendants directly relate to Dr. Oz's financial incentives in determining which products to promote or discuss on his Show.

*7 Defendant argues there is no purpose in producing agreements between Dr. Oz and the Media Defendants, as their financial relationship is not in dispute. Although that there is such a relationship may not be in dispute, the court finds these requests relevant to the extent the agreements may elucidate the nature and terms of the relationship, which again is relevant to economic motive.

Dr. Oz's more general overbreadth and vagueness objections are rejected as discussed above. Further, Dr. Oz's undue burden objection is rejected as well for its boilerplate conclusions. See Josephs, 677 F.2d at 992. Conditional responses must also be supplemented. Although Dr. Oz initially responded that he had no documents responsive to RPD numbers 20 and 21, his supplemental responses indicate otherwise.

Plaintiff's motion to compel is therefore GRANTED as to RPD numbers 17–23. Defendant Dr. Oz is ordered to produce all documents responsive to these requests, and to produce verified supplemental responses unambiguously stating he has done so or that no such documents exist. If Dr. Oz withholds any documents based on privilege, he must clearly state this and produce a privilege log describing such documents.

RPD number 25 seeks documents relating to consideration Dr. Oz received in exchange for referencing products on his Show. JS at 40; Houchin Decl., Ex. 1 at 20. RPD numbers 30–33 seek agreements relating to Dr. Oz's financial interests in his Show or from other Media Defendants. JS at 41–44; Houchin Decl., Ex. 1 at 22. Plaintiff argues this category of RPDs “concern Dr. Oz's ownership interest” in the Show and “whether Dr. Oz has an ownership interest in the other entity defendants,” which goes to the issue of whether Dr. Oz had an economic motivation to promote the weight loss products on his Show. JS at 45–46. Dr. Oz objects that these RPDs are overbroad, vague, and constitute an undue burden. Id. at 47–48.

The court agrees with plaintiff that RPD numbers 30-33 are relevant to determining whether Dr. Oz had a financial or economic interest in promoting the Manufacturing Defendants' weight loss products on the Show, which, inter alia, could render Dr. Oz's communications on his Show commercial speech excepted from an anti-SLAPP motion defense. See Rezec, 116 Cal. App. 4th at 140. Defendant argues plaintiff has no need to know how much money Dr. Oz makes; however, the court disagrees, as Dr. Oz's share of the profits and stake in the production is relevant to motive. The court therefore finds these RPDs to be relevant and proportionate to the needs of the case. Dr. Oz's boilerplate objections are overruled based on the reasoning established above, and conditional responses must again be supplemented.

But RPD number 25 is overbroad and not proportionate to the needs of the case. RPD number 25 calls for all documents and ESI relating to “any PERSON,” as defined in the RPDs, who provided goods and services in exchange for on-air references. The RPDs define “PERSON” to include “any natural person, corporation, partnership, association, organization, joint ventures, or other entity of any type or nature.” Houchin Decl., Ex 1 at 9. This particular request is grossly overbroad, and it is also disproportionate to the needs of the case since it would likely encompass many products and third parties besides weight loss supplements or Manufacturing Defendants, including, as defined, any products needed to produce the Show. The burden of this proposed discovery is likely to outweigh its likely benefit. Fed. R. Civ. P. 26(b)(1).

*8 Accordingly, plaintiff's motion to compel is GRANTED as to RPD numbers 30–33 and DENIED as to RPD number 25. Defendant Dr. Oz is ordered to produce all documents responsive to RPD numbers 30–33, and to produce verified supplemental responses unambiguously stating he has done so or that no such documents exist. If Dr. Oz withholds any documents based on privilege, he must clearly state this and produce a privilege log describing such documents.

RPD numbers 3–5 each seek information relating to specific statements Dr. Oz made on his Show. JS at 49–52. Specifically, RPD number 3 seeks documents related to research Dr. Oz “looked through” and scientists he referenced regarding Garcinia Cambogia on a 2012 episode. Id. at 49; Houchin Decl., Ex. 1 at 14. RPD number 4 similarly seeks documents related to Dr. Oz's contention in a 2012 episode that consumers should “look ... for ‘zero fillers ... zero binders, zero artificial ingredients.’ ” JS at 50; Houchin Decl., Ex. 1 at 14. RPD number 5 seeks documents relating to a “staggering new study” concerning green coffee extract's effectiveness for weight loss that Dr. Oz cites on a 2012 episode. JS at 50–51; Houchin Decl., Ex. 1 at 14. Plaintiff contends RPD numbers 3 and 5 directly relate to her negligent misrepresentation claim against Dr. Oz, while RPD number 4 is the marketing slogan of defendant Labrada's products, which would be relevant to determining whether Dr. Oz engaged in commercial speech by advertising Labrada products on his Show. JS at 53–54. Defendant objects that these RPDs are not relevant, overbroad, unduly burdensome, and vague. Id. at 55–56.

Similar to the other RPD categories already discussed, the court finds the bases for Dr. Oz's statements made during his Show to be relevant. RPD numbers 3 and 5 pertain to plaintiff's negligent misrepresentation claim and are therefore relevant. Information about the particular scientific research or studies relied upon by Dr. Oz in his speech would pertain to whether Dr. Oz had a basis for his claims about these weight loss supplements. Further, RPD number 4 is relevant to Media Defendants' First Amendment defense because Dr. Oz's purported use of defendant Labrada's marketing slogan is probative of whether Dr. Oz advertised Labrada's products for the purpose of selling the supplements. See Scott v. Metabolife Int'l, Inc., 115 Cal. App. 4th 404, 9 Cal. Rptr. 3d 242, 253–54 (2004). In analyzing the anti–SLAPP commercial speech exception inquiry, Dr. Oz's use of Labrada's slogan may be indicative of his position as a speaker engaged in commerce. See All One God Faith, Inc. v. Organic and Sustainable Industry Standards, Inc., 183 Cal. App. 4th 1186, 1207, 107 Cal. Rptr. 3d 861, 877 (2010) (citing Kasky v. Nike, Inc., 27 Cal. 4th 939, 119 Cal. Rptr. 2d 296, 45 P.3d 243 (2002) (in commercial speech cases, speaker may be someone acting on behalf of a person engaged in commerce)).

Defendant's remaining objections are denied for the reasons previously discussed, with one exception. The court agrees with defendant that RPD number 4 is overbroad to the extent it calls for documents Dr. Oz acquired after 2012 concerning the desirability of zero fillers, binders, and artificial ingredients. Thus, the documents produced in response to RPD number 4 may be limited to responsive documents Dr. Oz had in his possession, custody, or control in 2012 or earlier.

Therefore, plaintiff's motion to compel is GRANTED, with the limitation set forth above, as to RPD numbers 3–5. Defendant Dr. Oz is ordered to produce all documents responsive to these requests as limited, and to produce verified supplemental responses unambiguously stating he has done so or that he has no such documents. If Dr. Oz withholds any documents based on privilege, he must clearly state this and produce a privilege log describing such documents.

*9 According to plaintiff, RPD numbers 7 and 9–11 seek documents relating to the Show's marketing research and consumer perceptions regarding dietary supplements, and this appears to be true of at least number 7, 10, and 11. RPD number 7 seeks information relating to data on consumer perceptions of weight-loss supplements featured on the Show. JS at 57; Houchin Decl., Ex. 1 at 16. RPD number 10 requests documents pertaining to consumer perceptions toward Dr. Oz. JS at 60; Houchin Decl., Ex. 1 at 17. RPD number 11 asks for documents to support Dr. Oz's contention at the congressional hearing that he is trusted by consumers. JS at 61-62; Houchin Decl., Ex. 1 at 18. By contrast, RPD number 9 seeks transcripts of Show episodes in 2012. JS at 59; Houchin Decl., Ex. 1 at 17. Plaintiff contends each of these discovery requests may show Dr. Oz's economic motivation in making his comments about the weight loss products on the Show. JS at 63. Dr. Oz objects the discovery requests are overbroad, unduly burdensome, and vague. Id. at 64–65.

For RPD number 7, the court finds data concerning consumer perceptions of weight loss supplements discussed on the Show are relevant. This information may relate to whether Dr. Oz and Manufacturing Defendants had an economic reason to feature the weight loss supplements on the Show, because Dr. Oz had data about how favorably viewers or consumers would react to any such products. The information sought is highly relevant, and any burden is counterbalanced by the substantial need for the information to this case. Defendant's vagueness and overbreadth objections are also overruled.

RPD numbers 10 and 11 are much broader. They call for all documents regarding consumer perceptions of and trust in Dr. Oz. Although marketing research done by and relied on by Dr. Oz has some relevance, these requests would presumably sweep in consumer research going far beyond the subject matters of this case. As such, the court finds these requests are not proportional to the needs of the case. See Fed. R. Civ. P. 26(b)(1). Plaintiff's motion to compel is therefore denied as to RPD numbers 10 and 11.

The court understands why plaintiff seeks, with RPD number 9, all transcripts of 2012 shows. Plaintiff's supplemental memorandum argues that Dr. Oz has engaged in a practice or scheme of misleading and “deceptively formatted” advertising schemes, and the transcript of each and every Show episode from 2012 is relevant to the class claims that Dr. Oz engaged in a practice of deception and/or false advertising. P. Supp. Mem. at 1 (citing Shimono v. Harbor Freight Tools USA, Inc., 2016 WL 6238483, at *6 (C.D. Cal. Oct. 24, 2016)). Certainly obtaining the transcripts of all 2012 Shows is relevant to plaintiff's claim that there was such practice.

The court's main concern lies in Dr. Oz's undue burden objection. To the extent that episode transcripts are typically “prepared in the ordinary course of business,” such that Dr. Oz is already in possession of such transcripts, any burden of production would be minimal. Indeed, the RPD specifically cites the declaration of Cathy Denise Beaudoin, defendant Zoco's production counsel, who states that a transcript for each episode is in fact prepared “in the ordinary course of business.” Beaudoin Decl. (docket no. 77) ¶ 8. This undercuts the argument that Dr. Oz faces any substantial burden in producing these already-prepared documents. At the hearing, defendant's counsel asserted the transcripts in question are merely a plan for the show, not actual transcripts of what occurred. This assertion appears inconsistent with the exhibit to the Beaudoin Declaration, which is labeled as being an audio transcription of the Show in question. See Beaudoin Decl., Ex. 4. But regardless of whether the transcripts prepared in the ordinary course constitute plans of what was intended or actual transcripts, they would still be relevant to the issue of the Show's practices. Further, the only burden identified was in readying the already-existing transcripts for production in discovery. The court recognizes that, according to Dr. Oz's congressional testimony, the Show has aired approximately 900 episodes in five seasons, or roughly 180 episodes per year. See JS at 57; Houchin Decl., Ex. 4 at 8. But even the burden of producing 180 already-prepared transcripts should be minimal.

*10 Accordingly, plaintiff's motion to compel is GRANTED as to RPD numbers 7 and 9, and DENIED as to RPD numbers 10 and 11. Defendant Dr. Oz is ordered to produce all documents responsive to RPD numbers 7 and 9, and to produce verified supplemental responses unambiguously stating he has done so or that he has no such documents. If Dr. Oz withholds any documents based on privilege, he must clearly state this and produce a privilege log describing such documents.

RPD number 24 seeks documents relating to Dr. Oz's compliance with the Communications Act of 1934, 47 U.S.C. §§ 317 and 507, including documents relating to “Payola” and “Plugola” disclosures. JS at 67; Houchin Decl., Ex. 1 at 20. Section 317 of the Communications Act requires broadcasters to disclose to viewers or listeners, when the subject matter is broadcast, if a matter has been aired in exchange for valuable consideration. The statute aims to prevent the practice of broadcasting in return for undisclosed consideration, commonly referred to as “payola.” See Loveday v. F.C.C., 707 F.2d 1443, 1452 (D.C. Cir. 1983). “Plugola” refers to the use or promotion on the air of goods or services in which the person broadcasting the item has a financial interest. See In the Matter of Broad. Announcement of Fin. Interests of Broad. Stations & Networks & Their Principals & Employees in Servs. & Commodities Receiving Broad. Promotions, 76 F.C.C. 2d 221, 221 (1980).

The court finds Dr. Oz's compliance with the Communications Act, including any past regulatory disclosures or general corporate policies defendant may have about compliance with federal laws and regulations, may be helpful to understand whether he has previously broadcasted communications on behalf of another party in exchange for consideration, which would suggest Dr. Oz engaged in commercial speech. The existence of any compliance documents is thus relevant and discoverable to the issue of commercial speech and whether Dr. Oz has had a financial interest in previously featuring products on his Show. Defendant's objections are identical to those raised previously, and they are overruled by the court.

At the hearing, defendant argued he should be limited to producing documents pertaining to the weight loss products at issue. The court disagrees. Dr. Oz's practices in complying with these Communications Act provisions in a broad sense are relevant, as are documents that may show whether he had a practice of plugging products for consideration.

Accordingly, plaintiff's motion to compel is GRANTED as to RPD number 24. Defendant Dr. Oz is ordered to produce all documents responsive to RPD number 24, and to produce verified supplemental responses unambiguously stating he has done so or that he has no such documents. If Dr. Oz withholds any documents based on privilege, he must clearly state this and produce a privilege log describing such documents.

Each of RPD numbers 34, 35, 37–43 and 45–47 request documents, largely relating to Manufacturing Defendants or their associated products, corresponding with the following keywords or names: Supercitrimax, garcinia cambogia, green coffee, Naturex, Interhealth, Vinson, Preuss, GCBE, Lindsay Duncan, “Protecting Consumers from False and Deceptive Advertising of Weight–Loss Products,” McCaskill, and “Applied Food Science.” JS at 71–83; Houchin Decl., Ex. 1 at 22–24. Plaintiff argues documents containing these keywords or names are relevant. JS at 85. Defendant states that he has either produced all documents, or that he has no responsive documents, to RPD numbers 38, 39, and 42; however, as with other requests discussed above, defendant's supplemental responses are ambiguous on this point. Id. at 75, 77, 87–88. For the remaining RPDs in this category, defendant asserts scope of discovery and other boilerplate objections. Id. at 86.

*11 The court finds these discovery requests seek relevant documents and are reasonably tailored. RPD numbers 34, 35, 37–39, and 42 reference Manufacturing Defendants or names or key ingredients of Manufacturing Defendants' weight loss supplements, and they therefore pertain to plaintiff's various putative class claims against these defendants. RPD numbers 40, 41, 43, and 47 pertain to apparent sources of medical research or studies relied upon by Dr. Oz in justifying his communication that the weight loss supplements produced by Manufacturing Defendants were effective for consumers, making any documents including references to these sources relate to plaintiff's consumer protection and fraud claims. And RPD numbers 45 and 46 seek documents concerning Dr. Oz's 2014 Senate hearing about false and deceptive advertising. Defendant's objections to this relevant discovery are overruled for the reasons discussed above.

Accordingly, plaintiff's motion to compel is GRANTED as to RPD numbers 34, 35, 37–43, and 45–47. Defendant Dr. Oz is ordered to produce all documents responsive to these RPDs, and to produce verified supplemental responses unambiguously stating he has done so or that he has no such documents. If Dr. Oz withholds any documents based on privilege, he must clearly state this and produce a privilege log describing such documents.

The next category of RPDs relate to federal testimony and investigations involving Dr. Oz. RPD number 13 seeks documents relating to Dr. Oz's aforementioned congressional testimony, while RPD number 15 requests documents “exchanged” between Dr. Oz and the Federal Trade Commission from February 2, 2012 until the present. JS at 88–89; Houchin Decl., Ex. 1 at 18–19. Plaintiff states these RPDs are relevant because the U.S. Senate hearing concerned Dr. Oz's endorsements of supplemental weight loss products and the FTC filed an action against one of Dr. Oz's alleged scientific sources, Lindsay Duncan, for his endorsement of a weight loss product. JS at 90–91. Defendant's arguments are not specifically tailored to these RPDs. Id. at 91–93.

For reasons discussed above, RPD number 13 is relevant because it pertains to Dr. Oz's congressional testimony about false and deceptive advertisements that are the foundation of the class action claims in this dispute. For RPD number 15, plaintiff's relevance argument relies on a FTC action filed against Lindsay Duncan, who appeared on the Show to endorse Green Coffee Bean Extract. See FAC ¶ 119. The court finds that, because the FTC investigation was based on Duncan's April 5, 2012 appearance on the Show to discuss one of the Manufacturing Defendants' products, this request also relates to the alleged fraud and misrepresentation claims against Dr. Oz and other defendants. Further, as RPD number 13 concerns only one Senate hearing, and as Dr. Oz's interactions with the FTC appear to have been limited, defendant's objections based on overbreadth and burden are also overruled.

Therefore, plaintiff's motion to compel is GRANTED as to RPD numbers 13 and 15. Dr. Oz is ordered to produce all documents responsive to RPD numbers 13 and 15, and to produce verified supplemental responses unambiguously stating he has done so or that he has no such documents. If Dr. Oz withholds any documents based on privilege, he must clearly state this and produce a privilege log describing such documents.

The final category of RPDs concerns “[c]opies of insurance policies that may provide coverage in this matter.” JS at 93; Houchin Decl., Ex. 1 at 23. Plaintiff states “Dr. Oz has only produced the cover pages of the applicable insurance policies instead of the policies themselves.” JS at 94. Dr. Oz counters that plaintiff is not entitled to this RPD because plaintiff has failed to identify why the insurance policies are relevant and why his objections are not meritorious. Id. at 94–95.

*12 Copies of Dr. Oz's insurance policies are required initial disclosures that must be provided to plaintiff, regardless of the lack of stated relevance of this discovery request. Rule 26 requires that “a party must, without awaiting a discovery request, provide to the other parties ... for inspection and copying as under Rule 34, any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action ...” Fed. R. Civ. P. 26(a)(1)(iv). Thus, the Federal Rules required Dr. Oz to provide a copy of his entire insurance policy as an initial disclosure, before plaintiff even issued her first set of RPDs. Producing only the cover pages of insurance policies is insufficient, as that does not constitute the entire insurance agreement specified in Rule 26. Although defendant may be correct in his assertion that he has produced the relevant pages, in light of Rule 26, the court orders Dr. Oz to produce the relevant policies in their entirety.

Accordingly, plaintiff's motion to compel is GRANTED as to RPD number 48. Dr. Oz is ordered to produce all documents responsive to RPD number 48, and to produce verified supplemental responses unambiguously stating he has done so or that he has no such documents.

Interrogatory number 2 calls for Dr. Oz to identify all episodes of his Show that aired in 2012, including the title of each episode, the dates recorded, the dates aired, the episode and season number, and a synopsis of each episode. JS at 95; Houchin Decl., Ex. 2 at 12. Dr. Oz responded to this interrogatory by providing the requested information for only three episodes of his Show. See JS at 95–96. Defendant objects that this interrogatory is overly broad and unduly burdensome. Id. at 103. Plaintiff does not specifically address why she seeks all episodes in her portion of the JS, but in plaintiff's supplemental memorandum she asserts that Dr. Oz engages in a practice or scheme of continuous misrepresentation in every episode, which justifies her discovery request. P. Supp. Mem. at 1 (citing Shimono, 2016 WL 6238483, at *6).

The court finds interrogatory number 2 to be relevant for the same reasons as discussed regarding RPD number 9. Plaintiff alleges that she not only saw episodes of the Dr. Oz Show, but that she also witnessed the “entire misleading scheme itself.” P. Supp. Mem. at 2. Thus, the entire list of 2012 Show episodes are relevant.

But particularly because the court is compelling defendant to fully respond to RPD number 9, the court finds it would be an undue burden for Dr. Oz to produce a list of all episodes according to plaintiff's requested format, when plaintiff should be able to gather this information herself from the transcripts. While Dr. Oz has provided a list of three episodes conforming to the requested format, as noted, the Dr. Oz Show averages about 180 episodes each year. As such, the court DENIES plaintiff's motion to compel a response to Interrogatory number 2.

Interrogatory numbers 3 and 4 ask whether Dr. Oz contends Svetol green coffee bean extract and Supercitrimax garcinia cambogia are “specific brand[s],” and if not, to state all facts supporting its contention. JS at 96–97; Houchin Decl., Ex. 2 at 13. Plaintiff has made no showing that these interrogatories call for relevant information. Though relevance is generally construed broadly by the courts, where the requesting party fails to identify the relevancy of the disputed discovery requests, the court may impose necessary boundaries to limit discovery. See Gonzales, 234 F.R.D. at 679–80. It appears that these interrogatories are an awkward substitution for what is more commonly done by way of a request for admission following by a contention interrogatory. But without any clear indication that defendant contends these are not specific brands, and with the relevance of what defendant contends in this regard left unstated, the court DENIES plaintiff's motion to compel responses to Interrogatory numbers 3 and 4.

*13 Interrogatory numbers 5 and 6 ask Dr. Oz to identify compensation he may have received from Naturex and Interhealth, respectively, in connection with any episode of his Show that aired in 2012. JS at 98–99; Houchin Decl., Ex. 2 at 13. Dr. Oz responded “none” to number 6, and responded “none” except for some pills purchased to number 5. Id.

Plaintiff does not argue these responses are inadequate in and of themselves. Instead, she contests Dr. Oz's verification that he answered the interrogatories fully and under oath. JS at 100. Dr. Oz argues his interrogatory answers comply with Federal Rule 33(b)(3) because the verification language indicates Dr. Oz personally appeared and provided his sworn statement. Id. at 103–104.

Rule 33 requires that each interrogatory “be answered separately and fully in writing under oath.” Fed. R. Civ. P. 33(b)(3). To verify the truthfulness of a responding party's answers, “[t]he person who makes the answers must sign them.” Fed. R. Civ. P. 33(b)(5); State Farm Mut. Auto Ins. Co. v. New Horizont, Inc., 250 F.R.D. 203, 221 (E.D. Penn. 2008). In general, a responding party is not required “to conduct extensive research in order to answer an interrogatory, but a reasonable effort to respond must be made.” Haney v. Saldana, 2010 WL 3341939, at *3 (E.D. Cal. Aug. 24, 2010) (citing L.H. v. Schwarzenegger, 2007 WL 2781132, at *2 (E.D. Cal. Sep. 21, 2007)).

Here, a verification signed by Dr. Oz before a notary public is attached to his interrogatory responses. Houchin Decl., Ex. 5 at 13. In his verification, Dr. Oz states: “I am informed and believe the matters stated in the answers are true and accurate, and on that ground, I allege that to the best of my knowledge and belief the matters stated are true and correct.” Id. Although there is arguably a little wiggle room on this verification, on the whole it appears to the court that Dr. Oz adequately and personally verified his responses to the interrogatories. Indeed, other courts have held that, to be verified as a response made under oath, sworn signatures need not even be made before a notary. See Cottle v. Falcon Holdings Management, LLC, 892 F. Supp. 2d 1053, 1059 (N.D. Ind. 2012); see also United States v. Wellman, 830 F.2d 1453, 1467 (7th Cir. 1987) (noting that under federal law, 28 U.S.C. § 1746, a declaration under penalty of perjury generally may be used in lieu of an oath before a notary). Not only does the verification signed by Dr. Oz attest that his interrogatory answers are “true and accurate,” but it is additionally sworn before a notary public.

As it appears Dr. Oz has fully and properly answered Interrogatory numbers 5 and 6, the court DENIES plaintiffs motion to compel further responses to these interrogatories.

Lastly, Interrogatory number 7 calls for Dr. Oz to “[d]escribe [his] decision to state that garcinia cambogia is a ‘Dual Action Fat Buster,’ including whether or not [he was] aware of the fact that Labrada makes a brand of garcinia cambogia it describes as a ‘Dual Action Fat Buster.’ ” JS at 99; Houchin Decl., Ex. 2 at 13. Though plaintiff again makes no argument as to the relevance of this interrogatory, the relevance here is apparent. Dr. Oz's statement that garcinia cambogia is a “Dual Action Fat Buster,” and his decision to make this statement, are relevant to his affirmative defense based on the First Amendment. Dr. Oz's decision to make this statement, and the issue of whether he was aware of the fact that defendant Labrada utilized this exact phrase in marketing its products, may undermine his First Amendment defense because it may be probative of commercial speech, or advertisement or promotion of a particular product for commercial transactions.

*14 Thus, the court GRANTS plaintiff's motion to compel a further response from Dr. Oz to Interrogatory number 7. Dr. Oz must provide a substantive, verified response to this interrogatory.

For the foregoing reasons, it is hereby ORDERED that plaintiff's motion to compel (docket no. 131) is GRANTED IN PART AND DENIED IN PART as set forth above. If any dispute arises as to the adequacy of defendant Dr. Oz's production and responses as ordered herein—including any dispute as to whether defendant has followed the specified ESI protocol or produced an adequate privilege log, as briefly raised at the hearing—the parties must meet and confer in an effort to resolve the dispute before raising the matter with the court.

The court draws its factual background from the allegations in plaintiff's First Amended Complaint (“FAC”) (docket no. 88), the instant motion and JS (docket nos. 131, 132), and plaintiff's supplemental memorandum (docket no. 133).