FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 4/6/2021 | OSCAR NO. 601143 | PUBLIC

__________________________________________ 

PUBLIC 

UNITED STATES OF AMERICA 

FEDERAL TRADE COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

) 

In the Matter of 

Health Research Laboratories, LLC, 

 a limited liability company, 

Whole Body Supplements, LLC, 

 a limited liability company, and 

Kramer Duhon, 

 individually and as an officer of 

 Health Research Laboratories, LLC, 

 and Whole Body Supplements, LLC, 

Respondents. 

) 

) 

 ) 

) Docket No. 9397 

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__________________________________________) 

ORDER GRANTING COMPLAINT COUNSEL’S MOTIONS TO COMPEL 

I. 

On March 24, 2021, Federal Trade Commission (“FTC” or “Commission”) Complaint 

Counsel, pursuant to FTC Rule 3.38(a), 16 C.F.R. § 3.38(a), filed two motions to compel 

discovery: a Second Motion to Compel Respondents to Produce Documents; and a Second 

Motion to Compel Respondents to Supplement Interrogatory Responses (collectively, “Motions 

to Compel”). The deadline for Respondents Health Research Laboratories, LLC (“HRL”), Whole 

Body Supplements, LLC (“WBS”), and Kramer Duhon (collectively, “Respondents”) to file any 

opposition to the Motions to Compel was April 1, 2021. Respondents have not filed any 

opposition.1

 For the reasons set forth below, Complaint Counsel’s Motions are GRANTED. 

II. 

This is Complaint Counsel’s second attempt to obtain the discovery requested herein by 

motion to compel. On March 1, 2021 an order was issued denying Complaint Counsel’s initial 

motions to compel without prejudice, on the grounds that there were then-pending both a motion 

1 Rule 3.38(a) requires that any response to a motion to compel must be filed within 5 days of receipt of service of 

the motion. 16 C.F.R. § 3.38(a). Rule 4.3(c) provides additional time of 1 day when the party is served by electronic 

delivery. 16 C.F.R. § 4.3(c). 
 

 

 

 

 

 

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 4/6/2021 | OSCAR NO. 601143 | PUBLIC

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to amend the Answer and a motion to amend the Complaint, the resolution of which might affect 

the scope of the pleadings and, therefore, the scope of permissible discovery. Orders were issued 

on March 10, 2021, granting Respondents’ Motion to Amend Answer, and on March 12, 2021, 

denying Complaint Counsel’s Motion to Amend the Complaint. Respondents filed their 

Amended Answer on March 30, 2021. 

The Amended Answer states: 

Pursuant to 16 CFR § 3.12(b)(2), Respondents elect not to contest the allegations of fact 

set forth in the complaint. Respondents admit all of the material allegations to be true. 

Pursuant to 16 CFR § 3.12(b)(2), Respondents reserve the right to submit proposed 

findings of fact and conclusions of law. 

Respondents now assert only one legal defense in their Amended Answer: 

The FTC’s administrative process violates the Fifth Amendment to the United States 

Constitution because it seeks to deny Respondents of property and rights without due 

process of law. Further, the FTC receives its authority through Article II of the United 

States Constitution. The FTC’s structure violates and is inconsistent with Article II of the 

United States Constitution because the Commissioners and the Administrative Law 

Judges (“ALJs”) can only be removed by the President for “inefficiency, neglect of duty, 

or malfeasance in office,” which means that the Commissioners and the ALJs are not 

subject to the supervision and authority of the President. 

In the instant Motions to Compel, Complaint Counsel seeks an order requiring 

Respondents to amend and supplement their Answers to Interrogatories 1 and 3 and, with respect 

to the Document Requests, an order requiring that Respondents (1) clearly identify any 

categories of documents responsive to Requests 1 and 2 in Complaint Counsel’s First Requests 

for Production (“RFPs”) withheld on grounds other than privilege or the work product doctrine; 

(2) promptly produce all non-privileged documents responsive to these Requests; and (3) 

produce a privilege log. 

The Interrogatories at issue and Respondents’ responses thereto are: 

Interrogatory 1: Specify every Document that constitutes Substantiation Material 

including its Bates number and the date You first possessed the Document. 

Response to Interrogatory 1: Pursuant to 16 C.F.R. § 3.31(c) and (d), Defendants object 

to this Request because it seeks to require Respondents to marshal all of their evidence 

and because it is unnecessarily burdensome. Respondents are the in the process of 

producing “every Document that constitutes Substantiation Material.” Complaint Counsel 

can answer this interrogatory by reviewing and compiling the information from the 

documents produced. 

Interrogatory 3: Provide Basic Dissemination Data for each unique Advertisement for 

each Identified Product disseminated on or after January 17, 2018. 

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FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 4/6/2021 | OSCAR NO. 601143 | PUBLIC

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Response to Interrogatory 3: Please see Basic Dissemination Data spreadsheet in the 

document production. 

The RFPs at issue and Respondents’ responses thereto are: 

RFP 1: Produce a copy of each unique Advertisement for every Identified Product 

disseminated on or after January 17, 2018, Documents sufficient to establish Basic 

Dissemination Data for each such Advertisement, and all Documents Related To the 

content, development, analysis, review or approval of such Advertisements. 

Response to RFP 1: Respondents object to the request for “all Documents Related to the 

content, development, analysis, review or approval of such Advertisements” because this 

request is overly broad, because it fails to describe the documents sought with reasonable 

particularity, and because it seeks documents privileged by the attorney client privilege 

and the work product privilege. Non-privileged documents will be produced. Privileged 

attorney client communications and work product will not be produced. 

RFP 2: Produce all Documents constituting or reflecting Communications Related To any 

Identified Product with any Subject Third Party. 

Response to RFP 2: Respondents object to producing any privileged communications. 

Non-privileged documents will be produced. 

III. 

Rule 3.31(c)(1) provides “[p]arties may obtain discovery to the extent that it may be 

reasonably expected to yield information relevant to the allegations of the complaint, to the 

proposed relief, or to the defenses of any respondent.” 16 C.F.R. § 3.31(c)(1). “Parties resisting 

discovery of relevant information carry a heavy burden of showing why discovery should be 

denied.” In re Daniel Chapter One, No. 9329, 2009 WL 569694, at *2 (Jan. 9, 2009). 

Complaint Counsel asserts that the Notice of Contemplated Relief in this case includes 

fencing-in provisions intended to prevent future violations.2 Facts relevant to determining 

whether fencing-in relief is appropriate include: (1) the seriousness and deliberateness of the 

violation; (2) the ease with which the violative conduct may be transferred to other products; and 

(3) whether there is a history of prior violations. Telebrands Corp. v. FTC, 457 F.3d 354, 358 

2 “‘Fencing-in’ relief refers to provisions in a final Commission order that are broader in scope than the conduct that 

is declared unlawful.” In re Telebrands Corp., 2005 FTC LEXIS 178, at **4 n.3 (Sept. 19, 2005) (citing FTC v. 

Colgate-Palmolive Co., 380 U.S. 374, 395 (1965); Kraft, Inc. v. FTC, 970 F.2d 311, 326 (7th Cir. 1992)). “A 

common form of ‘fencing-in’ relief is a ‘multiproduct’ prohibition that bars the respondent from using its deceptive 

trade practice to sell not only the product that was the subject of the enforcement action, but all products sold by the 

respondent. Such multi-product orders are justified where the respondent’s deceptive practice was serious or 

deliberate, easily transferrable to the sale of other products, and/or where there is a history of prior violations.” In re 

ECM BioFilms, Inc., 2015 FTC LEXIS 22, at *629-30 (Jan. 28, 2015) (collecting cases). 

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FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 4/6/2021 | OSCAR NO. 601143 | PUBLIC

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(4th Cir. 2006) (quoting In re Stouffer Foods Corp., 1994 FTC LEXIS 196, *at 37 (Sept. 26, 

1994)). 

Complaint Counsel argues that even though Respondents have admitted all material 

allegations in the Complaint, the discovery it seeks is relevant to the appropriate scope of relief. 

Specifically, Complaint Counsel asserts that the information requested in Interrogatory 1 is 

relevant to evaluating the deliberateness of Respondents’ unlawful conduct; the information 

requested in Interrogatory 3 is relevant to the seriousness of Respondents’ violations; and the 

documents sought in RFPs 1 and 2 are relevant to evaluating the seriousness and deliberateness 

of Respondents’ conduct, both of which are factors weighed in determining whether fencing-in 

relief should be included in a final cease and desist order. 

Respondents failed to file any opposition to the Motions to Compel. Therefore, only their 

objections to the discovery requests are evaluated. “Unless the Administrative Law Judge 

determines that the objection is justified, the Administrative Law Judge shall order that . . . an 

answer to any requests for admissions, documents, depositions, or interrogatories be served or 

disclosure otherwise be made.” 16 C.F.R. § 3.38(a). 

In their objection to Interrogatory 1, Respondents contend that “Complaint Counsel can 

answer this interrogatory by reviewing and compiling the information from the documents 

produced.” When “the burden of deriving or ascertaining the answer is substantially the same for 

the party serving the interrogatory as for the party served,” Rule 3.35(c) provides that a party 

may answer an interrogatory by specifying “records from which the answer may be derived or 

ascertained.” Any such “specification shall include sufficient detail to permit the interrogating 

party to identify readily the individual documents from which the answer may be ascertained.” 

16 C.F.R. § 3.35(c). Respondents did not specifically identify any documents in their answer to 

Interrogatory 1. Furthermore, the burden is not the same between the parties because Complaint 

Counsel cannot independently identify the documents Respondents relied on to substantiate their 

claims simply by reviewing Respondents’ document production. 

In their objection to Interrogatory 3, Respondents stated only: “Please see Basic 

Dissemination Data spreadsheet in the document production.” Complaint Counsel asserts that 

Respondents have not produced a spreadsheet with such a title or identified any document with a 

Bates number to which the response might refer. Therefore, Respondents’ objection is 

insufficient. 

In response to RFP 1, Respondents produced advertisements, but did not produce 

business records containing dissemination information or any documents related to “the content, 

development, analysis, review or approval” of the advertisements. Respondents objected to this 

request on grounds that it was not stated with reasonable particularity and seeks privileged 

documents. Notably, Respondents did not object on the grounds of relevance. RFP 1 is stated 

with reasonable particularity. Respondents’ privilege objection is addressed below. 

In response to RFP 2, Respondents objected to producing any “privileged 

communications” and stated non-privileged documents “will be produced.” Complaint Counsel 

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FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 4/6/2021 | OSCAR NO. 601143 | PUBLIC

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states that Respondents did not produce any responsive documents. Respondents did not interject 

any other objections. 

To the extent there are documents responsive to RFP 1 and 2 that Respondents are 

withholding as privileged, Respondents shall comply with Rule 3.38A. 16 C.F.R. § 3.38A 

(providing that any person withholding material responsive to interrogatories or requests for 

production shall, if asserting privilege, “submit a schedule which describes the nature of the 

documents, communications, or tangible things not produced or disclosed . . . in a manner that, 

without revealing information itself privileged or protected, will enable other parties to assess the 

claim”). 

IV. 

For the above stated reasons, Complaint Counsel’s Motions to Compel are GRANTED, 

and it is hereby ORDERED: 

Within 5 days of the date of this Order, Respondents shall supplement their answers to 

Interrogatories 1 and 3 to provide full and complete answers, except Respondents shall not be 

required to provide the date of information requested in Interrogatory 1. 

Within 5 days of the date of this Order, Respondents shall identify all categories of 

documents responsive to Complaint Counsel’s First Set of Requests for Production they are 

withholding on grounds other than privilege or the work product doctrine. If Respondents are 

withholding documents on privilege grounds, they shall produce a privilege log that complies 

with Rule 3.38A within 15 days of this Order. 

Within 10 days of the date of this Order, Respondents shall produce all non-privileged 

documents that are responsive to Complaint Counsel’s First Set of Requests for Production. 

ORDERED: 

D. Michael Chappell 

Chief Administrative Law Judge 

Date: April 6, 2021 

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