PUBLIC

UNITED STATES OF AMERICA

BEFORE THE 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 DOCKET NO. 9397 

KRAMER DUHON, 

individually and as an officer of

HEALTH RESEARCH LABORATORIES, LLC 

and WHOLE BODY SUPPLEMENTS, LLC. 

________________________________________________ 

COMPLAINT COUNSEL’S MOTION TO 

COMPEL RESPONDENTS TO SUPPLEMENT INTERROGATORY RESPONSES

 

Pursuant to Rule 3.38(a), Complaint Counsel respectfully requests the Court order 

Respondents to promptly supplement their answers to the First Set of Interrogatories served on 

December 22, 2020. See Averill Decl., CCX-B1 & B2. Respondents produced their Objections 

and Answers on January 21, 2020 (“Answers”) and subsequently refused to supplement on the 

ground they preferred to discontinue the administrative case without participating in any 

additional fact discovery.1

 Specifically, on February 1, Respondents’ counsel advanced the 

position for the first time that further discovery was irrelevant because they preferred to 

terminate the administrative case by settlement, withdrawing their answer, amending their 

answer to admit allegations in the Complaint, or declining to participate in discovery and 

 

1 Respondents’ efforts to avoid participating in discovery have evolved over the last month starting with deficient 

responses to Complaint Counsel’s First Set of Interrogatories and First Requests for Production, followed by their 

Motion for Acceptance of Contested Stipulated Cease-and-Desist Order. When that Motion was unsuccessful, the 

parties engaged in an unsuccessful settlement discussion and then Respondents decided to file their Motion for 

Leave to Amend their Answer on February 12. Complaint Counsel intends to oppose that motion as facially 

inadequate.

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incurring sanctions from the Court that would terminate the proceeding. Averill Decl., ¶¶ 8-9.2

 

It is, of course, completely inappropriate for Respondents to attempt to grant themselves a de 

facto stay of discovery based on assumptions about how this Court will resolve their pending 

Motion to Amend.3 

I. LEGAL STANDARD

 Rule 3.31(c)(1) provides that “[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.” When a party fails to comply with its 

discovery obligations, a motion to compel under Rule 3.38(a) is appropriate. The Court will

limit discovery only “if the discovery sought is unreasonably cumulative or duplicative, or is 

obtainable from some other source that is more convenient, less burdensome, or less expensive 

or if the burden and expense of the proposed discovery outweigh its likely benefit.” In re Daniel 

Chapter One, No. 9329, 2009 WL 569694, at *2 (Jan. 9, 2009). Importantly, “[p]arties resisting 

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

denied.”4 For the reasons explained below, Respondents cannot satisfy that burden here. 

II. ARGUMENT

A. Respondents’ Interrogatory Responses are Grossly Inadequate. 

Respondents largely refuse to provide any of the relevant information Complaint Counsel 

requested in the Interrogatories. Interrogatory 1 asks Respondents to identify all documents they 

 

2 Respondents’ new objection was not included in their Answers and therefore was arguably waived. See, e.g., In re 

Daniel Chapter One, No. 9329, 2009 WL 569717, at *2 (Feb. 11, 2009); Richmark Corp. v. Timber Falling 

Consultants, 959 F.2d 1468, 1473 (9th Cir. 1992) (“It is well established that a failure to object to discovery requests 

within the time required constitutes a waiver of any objection.”).

3

 Respondents could certainly have made a decision before filing their Answer to admit all allegations in the 

Complaint. They also could have filed their Motion to Amend earlier or applied to this Court for a stay of their 

discovery obligations. They did none of these things, but instead dragged their feet in providing documents and 

information to Complaint Counsel. In addition to their professed cost concerns, Respondents also appear motivated 

to do everything possible to avoid producing documents or testimony that will provide a full picture of their 

decision-making related to the challenged ads. 

4 See In re Matter of LabMD, Inc., No. 9357, 2014 WL33621, at *1 (quoting In re Daniel Chapter One, No. 9329, 

2009 WL 569694, at *2 (Jan. 9, 2009)). 

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rely on to substantiate advertising claims challenged in the Complaint. See Averill Decl., CCXB1. Respondents objected on the grounds this interrogatory improperly requires them “to 

marshal all of their evidence” and is overly burdensome. Averill Decl., CCX-B2. However, 

these objections plainly fail because Respondents were required to have substantiation for their 

advertising claims at the time they disseminated the ads. 

In their objections to Interrogatory 1, Respondents also erroneously contend “Complaint 

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

documents produced.” Id.

5

 In fact, Complaint Counsel cannot independently identify the 

documents Respondents rely on to substantiate their claims. Given the questionable quality of 

the evidence presented in many of the produced documents, it is not apparent which documents 

Respondents will rely on to substantiate the challenged ad claims. Moreover, Respondents’ 

document production strategy when combined with their refusal to answer Interrogatory 1

greatly hampers Complaint Counsel’s ability to identify relevant substantiation materials. In 

their first production, Respondents generally produced three or more copies of an assortment of 

different scientific articles, random website content, and excerpts from publications mentioning 

ingredients found in the four products at issue in this case. See Averill Decl., ¶ 6. It is unduly 

burdensome and costly to require Complaint Counsel’s experts to review multiple copies of the 

same purported substantiation evidence rather than a clearly defined list of substantiation 

materials. Respondents’ refusal to answer this interrogatory greatly prejudices Complaint 

Counsel’s ability to have their experts efficiently prepare reports due on May 6, 2021 and 

impedes preparation for the hearing. At a minimum, Respondents should be required to provide 

an answer that clearly identifies the documents they will rely on to support the challenged 

 

5

 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(b) provides that a party may answer an interrogatory by specifying 

“records from which the answer is 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(b). With respect to this interrogatory, the burden is clearly not the same between the 

parties, as Complaint Counsel cannot predict which documents Respondents rely on as substantiation for the 

challenged claims by simply reviewing Respondents’ document production. Moreover, Respondents did not 

specifically identify any documents in their answer to Interrogatory 1. 

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advertising claims for specific products by Bates number and without any duplicative references 

to the same substantiation evidence Respondents have produced multiple times under different 

Bates numbers. 

Interrogatory 2 requests information about the exact type and dosages of ingredients 

Respondents expected each product to contain, and what the products actually contained. Averill 

Decl., CCX-B1. Respondents did not object to this interrogatory, but only provided a partial 

answer stating they “expected the type and dosages of the ingredients ...would be the same as 

the exact types and dosages referenced in the Complaint.” Averill Decl., CCX-B2. Their answer 

is insufficient and should, at a minimum, contain more detailed information about the exact type 

of garlic ingredients contained in the challenged products. This interrogatory was posed in part 

because previous conversations with Respondents’ counsel suggest that Respondents may be 

uncertain about the exact type of garlic included in The Ultimate Heart Formula (i.e., garlic 

powder, aged garlic extract, black garlic, or something else), and also because Respondents’ 

Answer contains a partial denial of paragraph 6 of the Complaint related to ingredients in Black 

Garlic Botanicals. This interrogatory is not burdensome and seeks information that is important 

in the assessment of Respondents’ proffered substantiation. If Respondents do not know 

precisely what type of garlic (or any other ingredient) was included in any of the relevant 

products, then they should say so in their Answer to Interrogatory 2. 

Interrogatory 3 requests dissemination information related to the challenged ads. In their 

response, Respondents refer to a “Basic Dissemination Data spreadsheet” without clearly 

identifying it by Bates number and when they have not produced a spreadsheet with such a title. 

This is plainly insufficient. See Rule 3.35(c). Moreover, a spreadsheet included in their initial 

document production (HRLAC_01261) does not clearly link the quantities and dates of 

dissemination to specific advertisements (i.e., Complaint Exs. A-D). See Averill Decl., CCX-B3. 

This spreadsheet also fails to provide all information requested in the interrogatory such as how 

and where each ad was disseminated as well as the identity of individuals or entities 

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disseminating the ads. Id. The requested information is highly relevant to issues of liability and 

appropriate relief in this case.

Interrogatories 4, 5, 7, 8, 10, 11, 13, and 14 require Respondents to provide an answer 

with “sufficient detail” to explain the bases for denials in their Answer related to ad 

interpretation and dissemination as well as their denials of allegations that the challenged 

representations were not substantiated. See Averill Decl., CCX-B1 (Definition K). 

Interrogatories 6, 9, 12, and 15 require Respondents to explain the basis for any contentions that 

specific ad claims identified in the Complaint were substantiated. Respondents objected to 

providing complete responses on the grounds of burden and overbreadth and incorrectly claim

answers to Interrogatories 5, 6, 8, 9, 11, 12, 14, and 15 can somehow be derived from 

unspecified materials provided to the FTC. Contention interrogatories are permitted by Rule 

3.35(b)(2), and these are not overbroad because they do not require Respondents to specify all

facts supporting their positions but instead request explanations “providing a sufficiently 

comprehensive response to avoid surprise[.]” Averill Decl., CCX-B1 (Definition K). Although 

Rule 3.35(b)(2) provides that contention interrogatories normally may be postponed until the end 

of discovery, it is appropriate to require earlier answers when Respondents do not need 

additional discovery to provide the requested answers. See In re Matter of Impax Labs, No. 

9373, 2017 WL 2570856, at *3 (June 12, 2017). Here, the Complaint clearly identifies the 

challenged representations (Complaint, ¶¶ 7, 9, 11, 13), and Respondents were required to have 

substantiation for those representations at the time they were made. No additional discovery is 

necessary, and Respondents should be required to provide responsive answers now. 

Interrogatory 16 requests information about the bioavailability of the challenged 

products. Respondents failed to state any objection and answered with a single non-responsive 

sentence. Interrogatory 18 asks Respondents to state the basis of their contention that Kramer 

Duhon is not responsible for the conduct of other Respondents. Respondents objected on the 

ground that the interrogatory called for a legal conclusion and then opaquely state: “from a 

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factual perspective, Respondents contend that the alleged conduct of Kramer Duhon is not a 

legal basis for the FTC to seek the relief that it seeks against him.” Averill Decl., CCX-B2. 

Respondents are improperly refusing to provide either any facts or a cogent legal explanation for 

their contention that Kramer Duhon is not liable for the allegedly deceptive advertising. They 

should be required to provide responsive answers to both interrogatories. 

B. Complaint Counsel’s Efforts to Meet and Confer Have Been Unsuccessful. 

On February 1, Complaint Counsel insisted on proceeding with a conference postponed 

by Respondents to discuss deficiencies in Respondents’ Answers. Complaint Counsel spent 

approximately 75 minutes trying to meet and confer about specific issues related to the Answers

and their Objections and Responses to Complaint Counsel’s First Requests for Production. See

Averill Decl., ¶ 9. Unfortunately, Respondents’ counsel resisted substantively participating in 

that conversation and stated Respondents would not invest additional resources in completing or 

supplementing their discovery responses. Id.

C. The Requested Discovery is Still Necessary Even if the Court Grants Respondents’ 

Motion to Amend Answer. 

On February 12, Respondents filed a Motion to Amend their Answer pursuant to Rule 

3.12(b)(2) (“Motion”). Respondents’ proposed amended answer vaguely states they admit the 

truth of “all of the material allegations” in the complaint. However, it is completely unclear 

which paragraphs of the Complaint Respondents intend to admit. For example, Respondents 

have not clearly stated they admit Paragraphs 14-21 of the Complaint which allege Respondents 

made certain types of disease claims in connection with advertising and promoting the four 

products and that those representations were not substantiated. As a result, even if the Court 

granted Respondents’ Motion and approved the filing of the proposed amended answer, the 

parties will need to engage in discovery related to ad interpretation, substantiation, and 

materiality of the claims. Further, even if the Respondents are permitted to file an amended 

answer, the question of what provisions are appropriate in a cease and desist order must be 

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resolved by the Court and the Commission. Discovery related to substantiation for the 

challenged claims, dissemination, as well as Kramer Duhon’s knowledge and intent would all be 

relevant to the proper scope of relief. 

III. CONCLUSION 

 Respondents’ failure to answer the Interrogatories are highly prejudicial to Complaint 

Counsel. The deadline to issue document requests, interrogatories, and subpoenas duces tecum is 

rapidly approaching on March 25, 2021, and it is difficult to determine whether additional 

discovery is necessary when Respondents’ Answers are so deficient. It is also difficult to 

efficiently prepare expert reports due May 6 and to prepare for the hearing without responsive 

Answers from Respondents identifying the materials they will rely on to substantiate the 

challenged advertising claims. For all of the above reasons, Complaint Counsel respectfully asks 

the Court order Respondents to promptly supplement their Answers to Interrogatories 1-16 and 

18. 

Respectfully submitted, 

s/ Elizabeth J. Averill 

 Elizabeth J. Averill

 Jonathan Cohen 

 Federal Trade Commission

 600 Pennsylvania Ave, NW, CC-9528 

 Washington, DC 20580 

 (202) 326-2993 (Averill); -2551 (Cohen) 

 Eaverill@ftc.gov; Jcohen2@ftc.gov 

 (202) 326-3197 (facsimile)

 Complaint Counsel

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CERTIFICATE OF COMPLIANCE

 Pursuant to Paragraph 4 of the Court’s December 14, 2020 Scheduling Order, the 

undersigned counsel represents that she and Jonathan Cohen attempted to confer with 

Respondents’ counsel, Joel Reese, in a good faith effort to resolve by agreement the issues raised 

in this motion to compel, but he generally refused to engage in a substantive conversation about 

specific issues and stated that Respondents would not supplement their discovery responses. We 

were therefore unable to resolve any of the issues raised in this motion by agreement. This 

conference took place by telephone starting at 4:30 PM (Eastern) on February 1, 2021 and lasted 

approximately 75 minutes. 

 

 s/ Elizabeth Averill 

Elizabeth Averill 

Federal Trade Commission

 600 Pennsylvania Ave, NW, CC-9528 

 Washington, DC 20580 

 (202) 326-2993; eaverill@ftc.gov

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CERTIFICATE OF SERVICE

I certify that I served a copy of Complaint Counsel’s Motion To Compel Respondents to 

Supplement Interrogatory Responses to counsel for the Respondents on February 19, 2021 via 

electronic mail. 

Joel Reese

Joshua Russ 

Reese Marketos LLP

750 N. Saint Paul St., Suite 600 

Dallas, TX 75201 

Joel.reese@rm-firm.com

Josh.russ@rm-firm.com

I also served one electronic copy via the Administrative E-Filing System and one electronic 

courtesy copy to the Office of the Secretary via email to ElectronicFilings@ftc.gov. 

I served one electronic courtesy copy via email to the Office of the Administrative Law Judge: 

The Honorable D. Michael Chappell 

Administrative Law Judge 

600 Pennsylvania Ave, N.W., Room H-110 

Washington, DC 20580 

 s/ Elizabeth J. Averill 

Elizabeth J. Averill 

Federal Trade Commission

 600 Pennsylvania Ave, NW, CC-9528 

 Washington, DC 20580 

 (202) 326-2993; eaverill@ftc.gov

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UNITED STATES OF AMERICA

BEFORE THE 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 DOCKET NO. 9397 

KRAMER DUHON, 

individually and as an officer of

HEALTH RESEARCH LABORATORIES, LLC 

and WHOLE BODY SUPPLEMENTS, LLC.

______________________________________________ 

[PROPOSED] ORDER GRANTING COMPLAINT COUNSEL’S MOTION TO 

COMPEL RESPONDENTS TO SUPPLEMENT INTERROGATORY RESPONSES

This matter having come before the Chief Administrative Law Judge on February 19, 

2021, upon Complaint Counsel’s Motion to Compel Respondents to Supplement Interrogatory 

Responses, it is hereby ORDERED that: 

1. The Motion is GRANTED; and

2. Within 10 business days of this Order, Respondents shall supplement their 

answers to Interrogatories 1-16 and 18 to provide full and complete answers to 

Complaint Counsel. 

ORDERED: ______________________ 

D. Michael Chappell

Chief Administrative Law Judge

Date:

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UNITED STATES OF AMERICA

BEFORE THE 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 DOCKET NO. 9397 

KRAMER DUHON, 

individually and as an officer of

HEALTH RESEARCH LABORATORIES, LLC 

and WHOLE BODY SUPPLEMENTS, LLC.

________________________________________________ 

DECLARATION OF ELIZABETH J. AVERILL 

I, Elizabeth J. Averill, hereby state that I have personal knowledge of the facts set forth 

below. I submit this declaration in support of Complaint Counsel’s Motion to Compel 

Respondents to Supplement Interrogatory Responses. If called as a witness, I could and would 

testify as follows:

1. I am a United States citizen and am over eighteen years of age. I am employed by 

the Federal Trade Commission (“FTC”) as an attorney in the Division of Enforcement, Bureau of 

Consumer Protection. I am acting as Complaint Counsel in the above-captioned matter. I also 

worked as an attorney representing the Federal Trade Commission in FTC and State of Maine v. 

Health Research Laboratories, LLC, et al., Case No. 2:17-cv-00467-JDL (D. Me.).

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2. On December 22, 2020, I served Complaint Counsel’s First Set of Interrogatories 

by email to Respondents’ counsel, Joel Reese and Joshua Russ. A true and correct copy of the 

Interrogatories is attached as CCX-B1. 

3. On January 21, 2021, I received Respondents’ Objections and Answers to 

Complaint Counsel’s First Set of Interrogatories (“Answers”). A true and correct copy of the 

Answers is attached as CCX-B2. 

4. A vendor working with Respondents’ counsel produced documents on January 

25, 2021 (“January 25 Production”). This is the only document production Complaint Counsel 

has received in response to Complaint Counsel’s First Requests for Production (“RFPs”). The 

production included 492 documents. 

5. I personally reviewed all of the documents in the January 25 Production. During 

my review, I noticed that the majority of the documents had previously been produced to the 

FTC as part of the contempt investigation related to FTC and State of Maine v. Health Research 

Laboratories, LLC, et al., Case No. 2:17-cv-00467-JDL (D. Me.). 

6. Furthermore, the January 25 Production includes multiple copies of the same 

articles, random website content, and excerpted sections of alternative health books related to

individual ingredients in the four challenged products. For example, six copies of an article 

entitled “Aged Garlic Extract Reduces Low Attenuation Plaque in Coronary Arteries of Patients 

with Metabolic Syndrome in a Prospective Randomized Double-Blind Study” authored by 

Matsumoto et al. were produced with Bates numbers of HRLAC_00186 to 00191; 

HRLAC_00720 to 00725; HRLAC_01444 to 01449; HRLAC_01991 to 01996; HRLAC_02566 

to 02571; and HRLAC_03113 to 03118. Six copies of an article entitled “Garlic Shows Promise 

for Improving Some Cardiovascular Risk Factors” authored by Ackermann et al. were produced 

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with Bates numbers of HRLAC_00672 to 00683; HRLAC_00684 to 00695; HRLAC_01943 to 

001954; HRLAC_01955 to 01966; HRLAC_03065 to 03076; and HRLAC_03077 to 03088. 

Three copies of an abstract related to an article entitled “Inhibiting progression of coronary 

calcification using Aged Garlic Extract in patients receiving statin therapy: a preliminary study” 

authored by Budoff et al. were produced with Bates numbers of HRLAC_00016 to 00017; 

HRLAC_01262 to 01263; and HRLAC_02384 to 02385. There are three copies of a website 

article entitled “14 Biggest Myths About Type 2 Diabetes” apparently downloaded from 

http://community.ihealthlabs.com produced with Bates numbers HRLAC_01426 to 01431; 

HRLAC_00168 to 00173; and HRLAC_02548 to 02553. Respondents produced three copies of 

an article entitled “Applicable People fermented black garlic; green natural org” apparently 

downloaded from http://www.iblackgarlic.com and produced with Bates numbers 

HRLAC_01305 to 01306; HRLAC_00059 to 00060; and HRLAC_02427 to 02428. 

Respondents produced three copies of an excerpt entitled “Chelation Therapy” from a book 

entitled “Alternative Medicine: the definitive guide” with Bates numbers HRLAC_01832 to 

01842; HRLAC_00561 to 00571; and HRLAC_02954 to 02964. This is just a very small sample 

of the extensive amount of duplicative materials in the January 25 Production. 

7. On January 27, 2021, I sent an email to Respondents’ counsel asking to schedule 

a time to meet and confer about issues related to Respondents’ Initial Disclosures, their 

Objections and Responses to the RFPs (“Responses”), as well as Respondents’ Answers. 

Respondents’ counsel advised that the earliest date he was available for such a conference was 

February 1, 2021. A true and correct copy of an email string between counsel related to 

scheduling a time to meet and confer is attached as CCX-A7. 

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8. On February 1, shortly before the scheduled time for counsel to meet and confer 

about discovery issues, Respondents’ counsel, Joel Reese, sent an email indicating Respondents 

would agree to all relief requested in the Notice of Contemplated Relief without any conditions. 

Mr. Reese further indicated he believed, as a result, the scheduled meet and confer was not 

necessary. I responded by advising him it was important for us to meet and confer as scheduled 

to try to resolve issues related to Respondents’ Initial Disclosures, their Objections and 

Responses to the RFPs (“Responses”), and the Answers. A true and correct copy of an email 

string reflecting this exchange between counsel is attached as CCX-A8. 

9. On February 1, 2021 starting at 4:30 PM (Eastern), Jonathan Cohen and I spoke 

by telephone with Respondents’ counsel, Joel Reese, in an effort to discuss and resolve the issues 

that are raised in the Motion to Compel Respondents to Produce Documents and Motion to 

Compel Respondents to Supplement Interrogatory Responses. A FTC paralegal, Celia Garrett, 

also listened to the call. I repeatedly tried to focus the conversation on specific questions and 

issues related to document production, the Responses, and the Answers in an effort to determine

if issues could be narrowed by agreement. However, Mr. Reese was generally unwilling to

engage in a detailed discussion about specific discovery issues and instead insisted that all of 

those issues were irrelevant because Respondents would not participate further in discovery in 

the administrative action because of cost. During the conference, Mr. Reese stated Respondents 

were willing to admit to all allegations in the Complaint. He stated that Respondents intended to 

terminate the administrative proceeding either by settlement, withdrawing their answer, filing a 

motion to amend their answer to admit allegations in the Complaint, or by declining to 

participate further in discovery and eventually incurring what he referred to as “death penalty”

sanctions from the Court that would terminate the administrative proceeding. During the 

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conference, Mr. Reese also stated Respondents would not review or produce additional 

documents, produce a privilege log, or otherwise supplement their discovery responses. I did not 

note the exact time when the conference concluded, but estimate that we spoke for a total of 

approximately 75 minutes. 

10. Following the conference on February 1, counsel had a discussion related to 

settlement that was ultimately not successful. 

I declare under penalty of perjury under the laws of the United States that the foregoing is 

true and correct. 

Executed on: February 19, 2021 /s/ Elizabeth J. Averill 

Alexandria, VA 

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CCX-B1

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UNITED STATES OF AMERICA

BEFORE THE 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 DOCKET NO. 9397 

KRAMER DUHON,

individually and as an officer of

HEALTH RESEARCH LABORATORIES, LLC 

and WHOLE BODY SUPPLEMENTS, LLC.

________________________________________________ 

FIRST SET OF INTERROGATORIES TO RESPONDENTS

Pursuant to the Rules of Practice, 16 C.F.R. § 3.35, Complaint Counsel asks Respondents 

to answer these Interrogatories. 

INTERROGATORIES

1. Specify every Document that constitutes Substantiation Material including its

Bates number and the date You first possessed the Document. 

2. State the exact type and dosages of the ingredients that You expected each

Identified Product would contain when consumed and, if different, the exact type and dosages of 

the ingredients each Identified Product actually contained when shipped to consumers. 

3. Provide Basic Dissemination Data for each unique Advertisement for each

Identified Product disseminated on or after January 17, 2018. 

4. If You deny paragraph 14 of the Complaint in this matter, in whole or in part,

State the Basis for Your denial. 

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5. If You deny paragraph 15 of the Complaint in this matter, in whole or in part,

State the Basis for Your denial. 

6. If You contend that some or all of the claims in paragraph 7 of the Complaint in

this matter have Substantiation, State the Basis for that contention with respect to each claim 

You contend has Substantiation, including identifying all Substantiation Materials. 

7. If You deny paragraph 16 of the Complaint in this matter, in whole or in part,

State the Basis for Your denial. 

8. If You deny paragraph 17 of the Complaint in this matter, in whole or in part,

State the Basis for Your denial. 

9. If You contend that some or all of the claims in paragraph 9 of the Complaint in

this matter have Substantiation, State the Basis for that contention with respect to each claim 

You contend has Substantiation, including identifying all Substantiation Materials.

10. If You deny paragraph 18 of the Complaint in this matter, in whole or in part,

State the Basis for Your denial. 

11. If You deny paragraph 19 of the Complaint in this matter, in whole or in part,

State the Basis for Your denial. 

12. If You contend that some or all of the claims in paragraph 11 of the Complaint in

this matter have Substantiation, State the Basis for that contention with respect to each claim 

You contend has Substantiation, including identifying all Substantiation Materials. 

13. If You deny paragraph 20 of the Complaint in this matter, in whole or in part,

State the Basis for Your denial. 

14. If You deny paragraph 21 of the Complaint in this matter, in whole or in part,

State the Basis for Your denial. 

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15. If You contend that some or all of the claims in paragraph 13 of the Complaint in

this matter have Substantiation, State the Basis for that contention with respect to each claim 

You contend has Substantiation, including identifying all Substantiation Materials. 

16. If You currently contend that the Identified Products (including any of their active

ingredients) are Bioavailable after ingestion by consumers, State The Basis for Your contention. 

17. Identify each person You intend to call at the hearing in this matter including

contact information and the subjects his or her testimony will address. 

18. If You contend that Kramer Duhon is not responsible for the conduct of other

Respondents in this action, State the Basis for Your contention. 

19. Identify all affirmative defenses You intend to raise in this matter.

DEFINITIONS

A. “Advertisement” or “Advertisements” means any written or verbal statement,

illustration, or depiction that promotes the sale of a good or service, or is designed to increase 

consumer interest in a brand, good, or service and was disseminated to consumers. The terms 

include, but are not limited to: labeling, packaging, package inserts, radio, television, 

promotional materials, print (including but not limited to brochures, newspapers, magazines, 

pamphlets, leaflets, circulars, mailers, book inserts, free standing inserts, letters, catalogues, 

posters, charts, billboards, public transit cards, point of purchase displays), audio programs 

transmitted over a telephone system, telemarketing scripts, on-hold scripts, upsell scripts, 

training materials provided to telemarketing firms, program-length commercials and other 

infomercials, website content, social media, and other digital content, including electronic 

newsletters. 

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B. “And,” as well as “or,” shall be construed both conjunctively and disjunctively,

as necessary, to bring within the scope of any Interrogatory all information that otherwise might 

be construed as outside its scope. 

C. “Any” includes “all,” and “all” includes the word “any.”

D. “Basic Dissemination Data” means all of the following information about each

version of an Advertisement: (i) how it was disseminated; (ii) when it was disseminated; (iii) the 

total number disseminated; (iv) where it was disseminated; and (v) the identity and contact 

information of the individuals or entities that disseminated the Advertisements. 

E. “Bioavailable” means the availability of a substance to be absorbed and used by

the human body. 

F. “Respondents” mean Health Research Laboratories, LLC; Whole Body

Supplements, LLC; and Kramer Duhon, either individually or collectively. 

G. “Document” or “Documents” mean the complete original and any nonidentical copy (whether different from the original because of notations on the copy or 

otherwise), regardless of origin or location, of any written, typed, printed, transcribed, filmed, 

punched, or graphic matter of every type and description, however and by whomever prepared, 

produced, disseminated or made, including, but not limited to, any advertisement, book, 

pamphlet, periodical, contract, correspondence, file, invoice, memorandum, note, telegram, 

report, record, handwritten note, working paper, routing slip, chart, graph, paper, index, map, 

tabulation, manual, guide, outline, script, abstract, history, calendar, diary, agenda, minute, 

code book or label. “Document” shall also include all Electronically Stored Information. 

H. “Each” includes “every,” and “every” includes “each.”

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I. “Electronically Stored Information” or “ESI” mean the complete original and

any non-identical copy (whether different from the original because of notations, different 

metadata, or otherwise), regardless of origin or location, of any writings, drawings, graphs, 

charts, photographs, sound recordings, images, and other data or data compilations stored in any 

electronic medium from which information can be obtained either directly or, if necessary, after 

You translate it into a reasonably usable form. This includes, but is not limited to, email, text, 

instant messaging, videoconferencing, social media, and other electronic correspondence 

(whether active, archived, or in a deleted items folder), metadata, word processing files, 

spreadsheets, databases, and recordings, whether stored on: cards; magnetic or electronic tapes; 

disks; computer hard drives, network shares or servers, or other drives; cloud-based platforms; 

cell phones, PDAs, computer tablets, or other mobile devices; or other storage media. 

J. “Identified Product” and “Identified Products” means Black Garlic Botanicals,

BG18 (also known as BG-18), The Ultimate Heart Formula, and Neupathic, either individually 

or collectively. 

K. “State the Basis” means explain with sufficient detail that Complaint Counsel

can rely on Your answer, before and during the hearing in this matter, as providing a sufficiently 

comprehensive response to avoid surprise with respect to the subject the Interrogatory addresses. 

L. “Substantiation” means any evidence establishing that a claim is true or

evidence providing a reasonable basis for a claim. 

M. “Substantiation Materials” means any information that You rely on to

substantiate any of the Subject Claims, including but not limited to tests, reports, studies, clinical 

trials, experiments, demonstrations, scientific literature, written opinions, anecdotal evidence, 

and any other information You contend an expert in the scientific community would rely upon. 

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N. “Subject Claims” means the claims identified in paragraphs 7, 9, 11, 13, 14, 16,

18 and 20 of the Complaint issued in this matter. 

O. “You” or “Your” means Health Research Laboratories, LLC; Whole Body

Supplements, LLC; Kramer Duhon, either individually or collectively. 

INSTRUCTIONS

A. Duty to Supplement. These Interrogatories require supplemental responses. 16

C.F.R. § 3.31(e).

B. Return Date. Your response is due thirty days after service.

C. Answer Form. You must answer each Interrogatory separately, in writing, and

under oath. Your response should set forth the Interrogatory fully preceding each answer. 

D. Period Covered. Unless otherwise specified, no Interrogatory is limited in time.

E. Scope. The Interrogatories cover information in the possession, custody, or

control of Respondents, Your attorneys, accountants, agents, affiliates, directors, officers, 

consultants, employees, contractors, bailees, other representatives, or any other person or entity 

from whom You can obtain such Documents by demand, request, or otherwise. 

F. Reference to Documents. If You answer an Interrogatory with reference to

Documents, Your answer must attach the Document (or identify it by Bates number if already 

produced), and refer to specific responsive section and page. 16 C.F.R. § 3.35(c). 

G. Waiver. Any objection You fail to raise through Your initial response is waived.

H. Objections. If You object to any Interrogatory or a part thereof, Your response

must provide Your exact objection and the facts upon which You base the objection. If you 

object to part of an Interrogatory, You must answer the remainder fully. If You object to an 

Interrogatory or part thereof as allegedly irrelevant, You must provide all responsive information 

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that You concede is relevant. If You object to an Interrogatory or part thereof as unduly 

burdensome, You must describe any alleged burden a response would entail. 

I. Privilege Claims. If You object to any Interrogatory based on privilege or any

similar claim, You must assert the claim no later than the return date for these Interrogatories. 

Your response must include the basis for the privilege or similar claim, and any responsive 

information that Your objection does not cover. 

J. Notice. If any party files any dispositive motion, or at the commencement of the

hearing, Complaint Counsel may move to preclude You from offering evidence regarding 

responsive matters Your answers to these Interrogatories fail to include. 

Dated: Dec. 22, 2020 /s/ Elizabeth J. Averill 

ELIZABETH J. AVERILL 

JONATHAN COHEN

Federal Trade Commission

Division of Enforcement 

600 Pennsylvania Ave., NW, Mailstop CC-9528 

Washington, DC 20580 

(202) 326-2993, eaverill@ftc.gov

(202) 326-2551, jcohen2@ftc.gov

(202) 326-3197 (Fax)

Complaint Counsel 

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CERTIFICATE OF SERVICE

I hereby certify that on this date, the foregoing was served via email on Respondents’ 

counsel. 

Joel W. Reese

Joshua M. Russ 

Reese Marketos LLP

750 N. Saint Paul Street, Suite 600 

Dallas, TX 75201-3201 

joel.reese@rm-firm.com

josh.russ@rm-firm.com

Dated: December 22, 2020 

/s/ Elizabeth J. Averill 

ELIZABETH J. AVERILL

Federal Trade Commission

Division of Enforcement 

600 Pennsylvania Ave., NW, Suite CC-9528

Washington, DC 20580 

(202) 326-2993, eaverill@ftc.gov

(202) 326-3197 (Fax)

Complaint Counsel 

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UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

OFFICE OF THE ADMINISTRATIVE LAW JUDGE

COMMISSIONERS: Joseph J. Simons, Chairman 

Noah Joshua Phillips 

Rohit Chopra

Rebecca Kelly Slaughter 

Christine S. Wilson 

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 

DOCKET NO. 9397

RESPONDENTS’ OBJECTIONS AND ANSWERS TO COMPLAINT 

COUNSEL’S FIRST SET OF INTERROGATORIES

Respondents Health Research Laboratories, LLC (“HRL”), Whole Body 

Supplements, LLC (“WBS”) and Kramer Duhon (collectively, “Respondents”) provide the 

following Objections and Answers to Complaint Counsel’s First Set of Interrogatories as 

required by Federal Trade Commission’s Rules of Practice, 16 C.F.R. § 3.31. 

ANSWERS TO INTERROGATORIES

1. Specify every Document that constitutes Substantiation Material including

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

ANSWER: 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. 

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2. State the exact type and dosages of the ingredients that You expected each

Identified Product would contain when consumed and, if different, the exact type and 

dosages of the ingredients each Identified Product actually contained when shipped to 

consumers.

ANSWER: Respondents expected the type and dosages of the ingredients that each 

Identified Product would contain when consumed would be the same as the exact types 

and dosages referenced in the Complaint. Per the FTC’s request, samples of each 

Identified Product are being produced. 

3. Provide Basic Dissemination Data for each unique Advertisement for each

Identified Product disseminated on or after January 17, 2018.

ANSWER: Please see Basic Dissemination Data spreadsheet in the document production.

4. If You deny paragraph 14 of the Complaint in this matter, in whole or in

part, State the Basis for Your denial. 

ANSWER: Respondents object to this Interrogatory because it is overly broad, unduly 

burdensome, and improper. Kramer Duhon disagrees that he represented any of the items 

in paragraph 14. HRL and Kramer Duhon both disagree that the advertisements 

represented any of the items in paragraphs (a) through (e).

5. If You deny paragraph 15 of the Complaint in this matter, in whole or in

part, State the Basis for Your denial. 

ANSWER: First, as explained in the previous answer, Respondents disagree that they 

made the representations in the manner characterized by the FTC. Second, with regard to 

any statements or claims actually made by the advertisements, Respondents believe that 

the statements and claims are supported by the materials provided to the FTC. 

6. If You contend that some or all of the claims in paragraph 7 of the

Complaint in this matter have Substantiation, State the Basis for that contention with 

respect to each claim You contend has Substantiation, including identifying all 

Substantiation Materials.

ANSWER: Respondents object to this Request. The Request identifies an advertisement 

and then requests that Respondents “State the Basis” for the contention that “each claim” 

has “Substantiation.” 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 in the process of producing the Substantiation Material, which 

Respondents believe is already in the FTC’s possession. 

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7. If You deny paragraph 16 of the Complaint in this matter, in whole or in

part, State the Basis for Your denial. 

ANSWER: Respondents object to this Interrogatory because it is overly broad, unduly 

burdensome, and improper. Kramer Duhon disagrees that he represented any of the items 

in paragraph 16. HRL and Kramer Duhon both disagree that the advertisements 

represented any of the items in paragraphs (a) through (e).

8. If You deny paragraph 17 of the Complaint in this matter, in whole or in

part, State the Basis for Your denial. 

ANSWER: First, as explained in the previous answer, Respondents disagree that they 

made the representations in the manner characterized by the FTC. Second, with regard to 

any statements or claims actually made by the advertisements, Respondents believe that 

the statements and claims are supported by the materials provided to the FTC. 

9. If You contend that some or all of the claims in paragraph 9 of the

Complaint in this matter have Substantiation, State the Basis for that contention with 

respect to each claim You contend has Substantiation, including identifying all 

Substantiation Materials.

ANSWER: Respondents object to this Request. The Request identifies an advertisement 

and then requests that Respondents “State the Basis” for the contention that “each claim” 

has “Substantiation.” 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 in the process of producing the Substantiation Material, which 

Respondents believe is already in the FTC’s possession. 

10. If You deny paragraph 18 of the Complaint in this matter, in whole or in

part, State the Basis for Your denial. 

ANSWER: Respondents object to this Interrogatory because it is overly broad, unduly 

burdensome, and improper. Kramer Duhon disagrees that he represented any of the items 

in paragraph 18. HRL and Kramer Duhon both disagree that the advertisements 

represented any of the items in paragraphs (a) through (e).

11. If You deny paragraph 19 of the Complaint in this matter, in whole or in

part, State the Basis for Your denial. 

ANSWER: First, as explained in the previous answer, Respondents disagree that they 

made the representations in the manner characterized by the FTC. Second, with regard to 

any statements or claims actually made by the advertisements, Respondents believe that 

the statements and claims are supported by the materials provided to the FTC. 

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12. If You contend that some or all of the claims in paragraph 11 of the

Complaint in this matter have Substantiation, State the Basis for that contention with 

respect to each claim You contend has Substantiation, including identifying all 

Substantiation Materials.

ANSWER: Respondents object to this Request. The Request identifies an advertisement 

and then requests that Respondents “State the Basis” for the contention that “each claim” 

has “Substantiation.” 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 in the process of producing the Substantiation Material, which 

Respondents believe is already in the FTC’s possession. 

13. If You deny paragraph 20 of the Complaint in this matter, in whole or in

part, State the Basis for Your denial. 

ANSWER: Respondents object to this Interrogatory because it is overly broad, unduly 

burdensome, and improper. Kramer Duhon disagrees that he represented any of the items 

in paragraph 20. HRL and Kramer Duhon both disagree that the advertisements 

represented any of the items in paragraph (a). 

14. If You deny paragraph 21 of the Complaint in this matter, in whole or in

part, State the Basis for Your denial. 

ANSWER: First, as explained in the previous answer, Respondents disagree that they 

made the representations in the manner characterized by the FTC. Second, with regard to 

any statements or claims actually made by the advertisements, Respondents believe that 

the statements and claims are supported by the materials provided to the FTC. 

15. If You contend that some or all of the claims in paragraph 13 of the

Complaint in this matter have Substantiation, State the Basis for that contention with 

respect to each claim You contend has Substantiation, including identifying all 

Substantiation Materials.

ANSWER: Respondents object to this Request. The Request identifies an advertisement 

and then requests that Respondents “State the Basis” for the contention that “each claim” 

has “Substantiation.” 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 in the process of producing the Substantiation Material, which 

Respondents believe is already in the FTC’s possession. 

16. If You currently contend that the Identified Products (including any of

their active ingredients) are Bioavailable after ingestion by consumers, State The Basis for

Your contention.

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ANSWER: Products are essentially equivalent to the ingredients in the produced studies. 

17. Identify each person You intend to call at the hearing in this matter

including contact information and the subjects his or her testimony will address.

ANSWER: 

Rick Cohen

Kramer Duhon 

Kyle Duhon 

Curtis Walker 

Plus, Respondents intend to call any witnesses called by the FTC, including any witnesses 

deposed by the FTC or the Respondents. 

18. If You contend that Kramer Duhon is not responsible for the conduct of

other Respondents in this action, State the Basis for Your contention.

ANSWER: Respondents object to this interrogatory because it seeks a legal opinion or 

legal conclusion, which Respondents are not required to provide. From a factual 

perspective, Respondents contend that the alleged conduct of Kramer Duhon is not a legal 

basis for the FTC to seek the relief that it seeks against him. 

19. Identify all affirmative defenses You intend to raise in this matter.

ANSWER: 

Requested Relief Exceeds Statutory Authorization: Section 5 of the FTC Act only grants 

the Commission the legal authority to enter an “order requiring such person, partnership, 

or corporation to cease and desist from using such method of competition or such act or 

practice.” 15 U.S.C. § 45(b). The FTC’s Administrative Complaint does not make a proper 

request for relief consistent with the FTC Act. Instead, the FTC requests relief that exceeds 

the authority granted to the FTC under the FTC Act. Respondents object to any Order that 

includes any findings, statements, or relief that exceeds the statutory authority granted by 

the FTC Act.

Mootness and Lack of Statutory Authority: The causes of action alleged in the Complaint 

are barred by mootness because all alleged conduct (i.e., marketing and advertising) 

referenced in the Complaint ceased more than year prior to the filing of the Complaint and 

will not reoccur in the future. The FTC has alleged no facts regarding a likelihood of 

reoccurrence. Further, the FTC Act does not grant the FTC the authority to seek a cease 

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and desist order for conduct that ceased prior to the Administrative Complaint without 

evidence that the conduct will likely reoccur in the future. 

Not in the public interest: Neither the filing of the administrative action nor the 

contemplated relief is in the public interest as required by 15 U.S.C. § 45. 

Violation of the United States Constitution: 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.

De Novo Review of Factual Findings Violates of the United States Constitution: Even 

though the Commissioners do not hear live testimony from witnesses, the Commissioners 

conduct a de novo review of the ALJ’s factual findings. This de novo review of the ALJ’s 

factual findings violates the United States Constitution and the Administrative Procedure 

Act.

Res Judicata and Collateral Estoppel: The actions alleged in the Administrative Complaint 

are barred under the doctrines of res judicata and/or collateral estoppel due to the January 

16, 2018 Stipulated Final Judgment and Order for Permanent Injunction and Other 

Equitable Relief (“Final Judgment”) and/or the August 12, 2020 Order in Case No. 2:17-

cv-00467-JDL, styled Federal Trade Commission, et al. v. Health Research Laboratories,

LLC, et al, pending in the United States District Court for the District of Maine.

Consent Judgment Settlement: The actions alleged in the Administrative Complaint are 

barred due to the settlement as referenced in the Final Judgment. 

Fails as a matter of law: The Complaint fails to state a claim upon which relief can be 

granted. 

No Vicarious Liability and No Direct Liability: The Complaints’ claims against Kramer 

Duhon are barred because Duhon is not responsible for the conduct of the other 

Respondents.

Respondents reserve the right to supplement this response as additional discovery is 

conducted.

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Dated: January 21, 2021 Respectfully submitted, 

REESE MARKETOS LLP 

By: /s/ Joel W. Reese 

Joel W. Reese 

Texas Bar No. 00788258 

joel.reese@rm-firm.com

Joshua M. Russ 

Texas Bar No. 24074990 

josh.russ@rm-firm.com

750 N. Saint Paul St., Suite 600 

Dallas, TX 75201-3201

Telephone: (214) 382-9810

Facsimile: (214) 501-0731 

ATTORNEYS FOR RESPONDENTS 

CERTIFICATE OF SERVICE 

I certify that, pursuant to 16 C.F.R. § 3.31, a copy of this document was served on 

Complaint Counsel on January 21, 2021 via electronic mail: 

Elizabeth J. Averill 

Jonathan Cohen 

Federal Trade Commission 

600 Pennsylvania Ave. NW, CC-9528

Washington, DC 20580 

202.326.2993

eaverill@ftc.gov 

jcohen2@ftc.gov 

/s/ Joel W. Reese 

Joel W. Reese 

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Black Garlic- Canada

Mail Date Quantity

1/11/2018 17391

3/15/2018 12519

4/30/2018 10049

6/7/2018 10708

7/17/2018 11010

Black Garlic - US

Mail Date Quantity

2/1/2018 76640

3/19/2018 75182

5/7/2018 90996

6/11/2018 80966

7/25/2018 80358

8/27/2018 89839

10/5/2018 62407

11/9/2018 60037

12/12/2018 45139

1/21/2019 31884

2/25/2019 26457

3/28/2019 26608

4/29/2019 20748

5/27/2019 20735

6/24/2019 19532

7/22/2019 14458

8/22/2019 21463

Neupathic - Canada

Mail Date Quantity

1/25/2018 18601

2/22/2018 20676

4/17/2018 22100

5/21/2018 13609

6/28/2018 9928

Neupathic - US

Mail Date Quantity

2/1/2018 46287

3/12/2018 39412

4/12/2018 19004

5/14/2018 35852

6/21/2018 33716

7/30/2018 35852

9/26/2018 34231

10/29/2018 29983

12/3/2018 31266

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1/10/2019 10657

2/18/2019 22357

3/21/2019 7692

4/22/2019 9692

6/24/2019 22890

The Ultimate Heart Formula - Canada

Mail Date Quantity

3/5/2018 22577

4/11/2018 24256

5/17/2018 15344

6/22/2018 9252

The Ultimate Heart Formula - US

Mail Date Quantity

3/12/2018 44919

4/23/2018 32587

5/31/2018 26890

9/2/2018 33379

10/10/2018 33146

11/14/2018 21587

12/21/2018 19514

BG-18 - Canada

Mail Date Quantity

2/14/2018 16701

3/26/2018 14835

3/26/2018 11319

6/27/2018 7147

BG-18 - US

Mail Date Quantity

2/5/2018 61809

3/26/2018 43432

5/14/2018 60887

6/25/2018 51809

7/26/2018 14000

8/20/2018 38849

10/12/2018 33344

11/26/2018 22924

12/27/2018 18819

1/31/2019 9899

4/4/2019 14522

5/13/2019 18921

6/10/2019 12604

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From: Averill, Elizabeth

To: Joel Reese

Cc: Cohen, Jonathan

Subject: RE: Dkt. 9397 - Request for Meet and Confer

Date: Friday, January 29, 2021 6:58:00 PM

Joel,

The production format issues are not on my agenda for the meet and confer on Monday. However, I

did think it was important to explain the differences between the production and the guidelines given

your earlier response. I have asked to meet and confer about the Initial Disclosures as well as your

responses to our Interrogatories and Requests for Production which indicate that you are not willing

to provide information Respondents are required to produce. 

That said, it might be helpful to set up a short, separate call involving attorneys and both of our

litigation support folks to discuss production mechanics. Please let me know what times might work

for that call next week on your end, and I’ll check with my litigation support colleague to schedule

it. 

We will plan to talk with you 3:30 to 5:00 (Central) on Monday. I’ll circulate a dial-in number on

Monday morning. 

Elizabeth J. Averill

Federal Trade Commission

Bureau of Consumer Protection

202-326-2993

From: Joel Reese <joel.reese@rm-firm.com> 

Sent: Friday, January 29, 2021 6:15 PM

To: Averill, Elizabeth <eaverill@ftc.gov>

Cc: Cohen, Jonathan <jcohen2@ftc.gov>

Subject: Re: Dkt. 9397 - Request for Meet and Confer

Liz:

Let’s talk through these issues. 

1. As for the filings, I only finished in this case what had to get done (i.e., the response to the

motion to strike and the witness list).

2. 2:30 PM to 4:00 doesn’t work, but 3:30 PM to 5:00 PM does work. Tell me if that works

for you. If not, we can try to move some things around.

3. I am going to suggest that the vendor participate in at least part of the call. We use the

vendor on all of our cases, so I feel comfortable he will understand the issues.

4. I will print off copies of all of the discovery responses for the call.

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Reese Marketos LLP

Joel W. Reese

750 N. Saint Paul St., Suite 600

Dallas, Texas 75201 | Direct: (214) 382-9801 | Main: (214) 382-9810

www.rm-firm.com

On Jan 29, 2021, at 2:23 PM, Averill, Elizabeth <eaverill@ftc.gov> wrote:

Joel,

You seem to have invested time on motion practice yesterday and today, so we don’t

understand why you claim you are completely unavailable to meet and confer about

discovery on either date.

Let’s schedule the meet and confer for 2:30 (Central) on Monday. We need to discuss

a number of issues related to Respondents’ discovery responses so we are planning on

reserving at least 90 minutes. If that time on Monday is impossible for you, propose

alternative times on Monday that do work. The compressed timeline for fact discovery

in the administrative case means that we need to resolve issues promptly.

Perhaps you should speak with your vendor again. A summary of some of the

differences between your first production and the production guidelines is set forth

below. As I said earlier during our telephone call on January 6, we are willing to discuss

and can accommodate productions with different formats/characteristics but asked to

discuss deviations from the guidelines prior to production.

The more important issues at the moment are related to Respondents’ Initial

Disclosures as well as your Responses to the First Set of Interrogatories and Requests

for Production. That is what we plan to focus on during the meet and confer on

Monday.

Liz

Differences between Respondents’ First Production and Requested Guidelines

(Attachment A)

1. Section 1.b and 2 clearly asks Respondents NOT to render native files into

image (e.g. TIFF or JPEG) unless the FTC requests them. With respect to ESI,

Section 2.a and 2.b requests parties to produce documents in Native format

rather than as image renderings (TIFF or JPEG). Your first production converted

almost all native files to image renderings. The only native files produced were

some Excel spreadsheets.

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 2/19/2021 | OSCAR NO. 600702 | Page 38 PUBLIC of 48 | PUBLIC
2. Many things are not consistent with the Guidelines in the provided DAT file

(HRLAC001.DAT):

a) Number of fields in FTC production guideline are 38 vs 29 number of fields

in HRLAC001.DAT

b) Below fields are not found in HRLAC001.DAT

· DOCID

· ALLCustodians

· SOURCE

· FILESIZE

· FileExtension

· PRODUCTION_Volume

· HASRedactions

· Exception Reason

· Email Subject

c) Below fields are not required but were provided in HRLAC001.DAT

a) ATTACHMENT

b) FAMDATE

c) FAMTIME

d) PATH

d) Many fields are provided under different name

Field name in

HRLAC001.DAT

Field name in FTC

production guideline

BEGBATES ProdBEG

ENDBATES ProdEnd

BEGATTACH ProdBeg_Attach

ENDATTACH ProdEnd_Attach

PARENTBATES ParentID

DEDUPHASH MD5Hash

NATIVEPATH FilePath

OCRPATH TextPath

3. Your production included .lfp, .log files provided along with .OPT and .DAT file,

which are unnecessary and not requested. If you want to provide them, that is

of course fine.

From: Joel Reese <joel.reese@rm-firm.com>

Sent: Friday, January 29, 2021 9:20 AM

To: Averill, Elizabeth <eaverill@ftc.gov>

Cc: Cohen, Jonathan <jcohen2@ftc.gov>

Subject: Re: Dkt. 9397 - Request for Meet and Confer

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 2/19/2021 | OSCAR NO. 600702 | Page 39 PUBLIC of 48 | PUBLIC
Again, I can talk on Monday. 

On the production guidelines issue, I have spoken with my ediscovery vendor.

He, of course, had the FTC's production guidelines that were attached as Exhibit

A when we were processing the documents for production. We reviewed them

again. We followed EXACTLY what was set forth in the guidelines.

Reese Marketos LLP

Joel W. Reese

750 N. Saint Paul St., Suite 600

Dallas, Texas 75201 | Direct: (214) 382-9801 | Main: (214) 382-9810

www.rm-firm.com

On Jan 27, 2021, at 9:11 AM, Averill, Elizabeth <eaverill@ftc.gov>

wrote:

Joel,

We are certainly willing to discuss your request for a two-week extension

for Respondents’ production of documents. However, we need additional

information about what categories of documents have not yet been

reviewed and produced as well as a commitment that all non-privileged,

responsive documents will be produced by the extended deadline. 

We would like to schedule a meet and confer this week. Would 2:30

(Central) tomorrow or later in the day tomorrow work? If so, I’ll circulate

a dial-in number. We would like to meet and confer about: (1)

Respondents’ failure to supplement their initial disclosures as previously

requested; (2) Respondents’ objections and failures to respond to the First

Set of Interrogatories; and (3) clarify whether Respondents are

withholding any non-privileged documents based on objections set forth

in their Responses to Complaint Counsel’s First Requests for Production

as well as the bases for specific objections.

In light of our previous conversation, I was surprised that Respondents’

first document production on January 25 was not produced in a format

consistent with the requested production guidelines. (Almost no native

files were produced.) We should be able to load this first production into

Relativity, but my litigation support team informs me that the path names

provided are unusual because they include a file name at the end. Please

ask your vendor why the file name is included in the path field. The

solution proposed by my litigation support team is for you to provide an

overlay file for the path name, where the first column is BEG BATES and

the second column is the path without the file name. (This would be

provided as a DAT file.) We would like to discuss whether future

productions will be made in accordance with the guidelines in Attachment

A to the First Requests for Production. My understanding is that it is

actually more costly and time-intensive to convert all documents to image

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 2/19/2021 | OSCAR NO. 600702 | Page 40 PUBLIC of 48 | PUBLIC
files as you did in the first production.

Elizabeth J. Averill

Federal Trade Commission

Bureau of Consumer Protection

202-326-2993

From: Joel Reese <joel.reese@rm-firm.com>

Sent: Monday, January 25, 2021 10:13 AM

To: Averill, Elizabeth <eaverill@ftc.gov>

Cc: Dee Dee Carr <deedee.carr@rm-firm.com>; Cohen, Jonathan

<jcohen2@ftc.gov>; Hall Ann <ann.hall@rm-firm.com>; Welby, Grant

<gwelby@ftc.gov>

Subject: Re: Dkt. 9397 - Document production?

Liz:

We will have additional productions. We haven’t finished the

review, but should have it done in the next two weeks.

Reese Marketos LLP

Joel W. Reese

750 N. Saint Paul St., Suite 600

Dallas, Texas 75201 | Direct: (214) 382-9801 | Main: (214) 382-9810

www.rm-firm.com

On Jan 25, 2021, at 9:09 AM, Averill, Elizabeth

<eaverill@ftc.gov> wrote:

Grant tells me we received notice of the production from

Mr. Kinney within moments of when I sent the email to you,

so I wanted to update that it looks like the documents have

been uploaded.

From: Averill, Elizabeth

Sent: Monday, January 25, 2021 10:03 AM

To: Dee Dee Carr <deedee.carr@rm-firm.com>; Joel Reese

<joel.reese@rm-firm.com>

Cc: Cohen, Jonathan <jcohen2@ftc.gov>; Hall Ann

<ann.hall@rm-firm.com>; Welby, Grant <gwelby@ftc.gov>

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 2/19/2021 | OSCAR NO. 600702 | Page 41 PUBLIC of 48 | PUBLIC
Subject: Dkt. 9397 - Document production?

Joel,

We still have not received your first document production.

Please send the physical product samples via FedEx or UPS

to the address below. Please do not send them to us via

USPS.

Elizabeth Averill

600 Pennsylvania Avenue, NW

Mailstop CC-9528

Washington, DC 20580

We expect to send copies of subpoena productions to Ms.

Carr later this afternoon. 

Liz

From: Dee Dee Carr <deedee.carr@rm-firm.com>

Sent: Friday, January 22, 2021 12:53 PM

To: Averill, Elizabeth <eaverill@ftc.gov>

Cc: Joel Reese <joel.reese@rm-firm.com>; Cohen, Jonathan

<jcohen2@ftc.gov>; Hall Ann <ann.hall@rm-firm.com>;

Welby, Grant <gwelby@ftc.gov>

Subject: Re: FTC v. HRL; Discovery Responses

I’ll talk to Jeff Kenney about handling this.

Dee Dee Carr

(214) 382-9808

On Jan 22, 2021, at 11:51 AM, Averill,

Elizabeth <eaverill@ftc.gov> wrote:

Ms. Carr,

We have not received the document

production yet. Grant Welby will send you

another SFTP link directly. My understanding is

that SFTP links won’t work when the original

recipient forwards the link to someone else.

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 2/19/2021 | OSCAR NO. 600702 | Page 42 PUBLIC of 48 | PUBLIC
Thank you.

From: Dee Dee Carr <deedee.carr@rmfirm.com>

Sent: Friday, January 22, 2021 11:52 AM

To: Averill, Elizabeth <eaverill@ftc.gov>

Cc: Joel Reese <joel.reese@rm-firm.com>;

Cohen, Jonathan <jcohen2@ftc.gov>; Hall Ann

<ann.hall@rm-firm.com>; Welby, Grant

<gwelby@ftc.gov>

Subject: Re: FTC v. HRL; Discovery Responses

Good morning, I’m re-sending via your ftp

site now. Please confirm once recieved.

Good Day

Dee Dee Carr

(214) 382-9808

On Jan 22, 2021, at 8:00 AM,

Jeff Kinney

<Jkinney@digitalverdict.com>

wrote:

Please do.

From: Averill, Elizabeth

<eaverill@ftc.gov>

Sent: Friday, January 22, 2021

8:00 AM

To: Jeff Kinney

<jkinney@digitalverdict.com>;

Joel Reese <joel.reese@rmfirm.com>; Cohen, Jonathan

<jcohen2@ftc.gov>

Cc: Hall Ann <ann.hall@rmfirm.com>; Dee Dee Carr

<deedee.carr@rm-firm.com>;

Welby, Grant <gwelby@ftc.gov>

Subject: RE: FTC v. HRL; Discovery

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 2/19/2021 | OSCAR NO. 600702 | Page 43 PUBLIC of 48 | PUBLIC
Responses

Joel and Mr. Kinney,

We are unfortunately not

permitted to download

documents from any type of

outside document sharing site or

dropbox. However, we can easily

send you a secure file transfer link

to transfer the files. Mr. Kinney -

Should we email that link to you?

Liz

From: Jeff Kinney

<jkinney@digitalverdict.com>

Sent: Thursday, January 21, 2021

8:25 PM

To: Joel Reese <joel.reese@rmfirm.com>; Cohen, Jonathan

<jcohen2@ftc.gov>; Averill,

Elizabeth <eaverill@ftc.gov>

Cc: Hall Ann <ann.hall@rmfirm.com>; Dee Dee Carr

<deedee.carr@rm-firm.com>

Subject: RE: FTC v. HRL; Discovery

Responses

Jonathan/Liz,

Below is a link to the production

Joel referred to in the previous

email.

HRLAC 00001-HRLAC 03582

From: Joel Reese <joel.reese@rmfirm.com>

Sent: Thursday, January 21, 2021

5:21 PM

To: Cohen, Jonathan

<jcohen2@ftc.gov>; Averill,

Elizabeth <eaverill@ftc.gov>

Cc: Hall Ann <ann.hall@rmFEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 2/19/2021 | OSCAR NO. 600702 | Page 44 PUBLIC of 48 | PUBLIC
firm.com>; Jeff Kinney

<jkinney@digitalverdict.com>;

Dee Dee Carr <deedee.carr@rmfirm.com>

Subject: FTC v. HRL; Discovery

Responses

Jonathan and Liz:

Attached are our responses to the

FTC’s discovery requests. Jeff

Kinney with Digital Verdict will be

sending you a link for documents.

Reese Marketos LLP

Joel W. Reese

750 N. Saint Paul St., Suite 600

Dallas, Texas 75201 | Direct: (214)

382-9801 | Main: (214) 382-9810

www.rm-firm.com

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 2/19/2021 | OSCAR NO. 600702 | Page 45 PUBLIC of 48 | PUBLIC
CCX-A8 

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 2/19/2021 | OSCAR NO. 600702 | Page 46 PUBLIC of 48 | PUBLIC
From: Averill, Elizabeth

To: Joel Reese

Cc: Cohen, Jonathan; Garrett, Celia

Subject: RE: FTC v. HRL; Administrative Complaint.

Date: Monday, February 1, 2021 3:20:00 PM

We disagree with your contentions about the administrative action below. Yes, we want to meet

and confer about the discovery issues today as planned.

From: Joel Reese <joel.reese@rm-firm.com> 

Sent: Monday, February 1, 2021 3:18 PM

To: Averill, Elizabeth <eaverill@ftc.gov>

Cc: Cohen, Jonathan <jcohen2@ftc.gov>; Garrett, Celia <cgarrett1@ftc.gov>

Subject: Re: FTC v. HRL; Administrative Complaint.

If you want to continue the case under these circumstances, I will participate in the call, but

this is our position. Please advise if you want to continue with the call today. 

Reese Marketos LLP

Joel W. Reese

750 N. Saint Paul St., Suite 600

Dallas, Texas 75201 | Direct: (214) 382-9801 | Main: (214) 382-9810

www.rm-firm.com

On Feb 1, 2021, at 2:05 PM, Joel Reese <joel.reese@rm-firm.com> wrote:

Liz:

We are agreeing to all of the relief requested by the FTC in Administrative

Complaint. 

The only reason to continue the administrative action is that the administrative

action is a stalking horse for some other type of action — which is improper

under federal law and applicable rules. 

Reese Marketos LLP

Joel W. Reese

750 N. Saint Paul St., Suite 600

Dallas, Texas 75201 | Direct: (214) 382-9801 | Main: (214) 382-9810

www.rm-firm.com

On Feb 1, 2021, at 1:58 PM, Averill, Elizabeth <eaverill@ftc.gov>

wrote:

Joel,

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 2/19/2021 | OSCAR NO. 600702 | Page 47 PUBLIC of 48 | PUBLIC
I don’t understand your email. The next step is for us to meet and confer

today about issues with Respondents’ Initial Disclosures, Responses to the

Requests for Production, and Objections and Answers to the

Interrogatories at the time you suggested. (Today at 3:30 Central.) There

is a limited time period for discovery in this case, and we need to resolve

issues promptly. 

We’ll plan to speak with you then on the conference line below. Or let us

know if you are now refusing to meet and confer.

888-675-2535

Access code: 3263186

Liz

From: Joel Reese <joel.reese@rm-firm.com>

Sent: Monday, February 1, 2021 2:48 PM

To: Averill, Elizabeth <eaverill@ftc.gov>; Cohen, Jonathan

<jcohen2@ftc.gov>

Subject: FTC v. HRL; Administrative Complaint.

Liz and Jonathan:

As I have stated previously, my clients do not have the funds to

continue this fight. My clients will agree to all of the relief requested

by the FTC in Administrative Complaint (a - l) with no conditions. 

Please advise as to the next steps. 

Considering this issue, it seems like the call today is unnecessary. 

Reese Marketos LLP

Joel W. Reese

750 N. Saint Paul St., Suite 600

Dallas, Texas 75201 | Direct: (214) 382-9801 | Main: (214) 382-9810

www.rm-firm.com

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 2/19/2021 | OSCAR NO. 600702 | Page 48 PUBLIC of 48 | PUBLIC