FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 1/3/2023 | Document No. 606570 | PAGE Page 1 of 3 * PUBLIC *; 

__________________________________________ 

PUBLIC 

UNITED STATES OF AMERICA 

FEDERAL TRADE COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

) 

In the Matter of ) 

) 

Intuit, Inc., ) Docket No. 9408

 a corporation, ) 

) 

Respondent. ) 

__________________________________________) 

ORDER DENYING RESPONDENT’S MOTION TO COMPEL 

PRODUCTION OF DOCUMENTS AND A REVISED PRIVILEGE LOG 

I. 

On December 19, 2022, Respondent Intuit, Inc. (“Respondent” or “Intuit”) filed a Motion 

to Compel Production of Documents and a Revised Privilege Log (“Motion”). Federal Trade 

Commission (“FTC” or “Commission”) Complaint Counsel filed its opposition on December 28, 

2022 (“Opposition”). For the reasons set forth below, Intuit’s Motion is DENIED. 

II. 

Pursuant to Commission Rule 3.31(c)(1): “Parties 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). Discovery 

shall be limited if the Administrative Law Judge determines that it is “unreasonably cumulative 

or duplicative,” or the “burden and expense of the proposed discovery . . . outweigh its likely 

benefit.” 16 C.F.R. § 3.31(c)(2)(i), (iii). “Unless the Administrative Law Judge determines that 

the objection is justified, the Administrative Law Judge shall order that . . . [responses] be 

made.” 16 C.F.R. § 3.38(a). Under Rule 3.31(c)(4), “[d]iscovery shall be denied or limited in 

order to preserve the privilege of a witness, person, or governmental agency . . . .” 16 C.F.R. 

§ 3.31(c)(4). 

The Complaint in this case alleges that, in connection with advertising and selling Intuit’s 

tax preparation products and services, Respondent made express and/or implied representations 

that consumers could file their taxes for free using TurboTax, but that in fact “in numerous 

instances Respondent does not permit consumers” to do so, and therefore made false or 

misleading representations in violation of the FTC Act. See, e.g., Complaint ¶¶ 119-122. 

Respondent denies that it made any false or misleading representations. Answer ¶¶ 119-121. 
 

 

 

 

 

 

 

 

 

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III. 

Respondent seeks an order requiring Complaint Counsel to produce documents reflecting 

communications between the FTC and: the Internal Revenue Service (“IRS”); certain state 

Attorneys General (“State AGs”); the Los Angeles City Attorney’s Office; and the Santa Clara 

County Counsel’s Office. Respondent argues that Complaint Counsel improperly withheld these 

communications and that Complaint Counsel’s privilege log fails to comply with Rule 3.38A.0F

1 

Complaint Counsel responds that the requested communications are not relevant to any claim or 

valid defense and argues that Respondent has not demonstrated otherwise. Complaint Counsel 

argues in the alternative that, even if the requested communications were deemed relevant, 

Complaint Counsel has properly withheld its communications with other government agencies as 

privileged and has also provided an updated privilege log that Complaint Counsel asserts is fully 

compliant with Rule 3.38A. 

Respondent contends that communications between the FTC and the IRS are relevant 

because Complaint Counsel has argued that “Intuit invented the phrase ‘simple tax returns,’” 

which Intuit uses when advertising its TurboTax Free Edition, but that in fact, Intuit uses a term 

employed by the IRS, and is commonly understood. Motion at 6. In support of this argument, 

Respondent attaches to its Motion a United States Government Accountability Office publication 

referring to the IRS’s classification of a “simple tax return” as a form 1040 with no attached 

schedules. See RX 78 at 14. Thus, according to Respondent, whether Respondent created the 

phrase “simple tax return” or whether the meaning is “commonly understood” is a relevant issue. 

However, Respondent fails to show how communications between the FTC and the IRS would 

shed light on this issue, or to demonstrate how discovery of these communications is reasonably 

calculated to lead to the discovery of relevant, admissible evidence. Moreover, it appears, based 

on Respondent’s reference to its own exhibit, that Respondent possesses evidence indicating 

whether or not Intuit uses the phrase “simple tax return” in a manner similar to the IRS. 

With regard to communications with the State AGs, Respondent asserts that “[a] 

potentially critical issue in this case is whether Intuit’s settlement agreement with all 50 states 

and the District of Columbia fully addresses the alleged deception.” Motion at 8. Again, 

however, Intuit fails to explain how communications between the FTC and the State AGs would 

be relevant to that issue. Whether the relief requested in this case is no longer necessary or 

legally permissible in light of the State AG settlements is a legal issue. See In re Intuit, Inc., 2022 

WL 16960876, at *5-6 (Oct. 31, 2022) (denying Respondent’s motion to compel answers to 

interrogatories regarding whether Complaint Counsel deemed the State AG settlements sufficient 

and/or obviated the need for relief in the instant case). Moreover, “conclusory, unsupported 

assertions” of relevance, such as those made by Respondent “do not demonstrate relevance.” 

In re LabMD, Inc., 2014 FTC LEXIS 22, at *12 (Jan. 30, 2014). 

1 Rule 3.38A requires, in pertinent part, that parties withholding responsive material submit a privilege log 

describing “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.” 16 C.F.R. § 3.38A(a). 

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Finally, as to the FTC’s communications with the Los Angeles City Attorney’s Office 

and the Santa Clara County Counsel’s Office, Respondent fails altogether to articulate the 

relevance of such communications. 

Based on the foregoing, Respondent has failed to demonstrate that the requested 

communications are relevant to any claim, defense, or proposed relief in this matter, as required 

by Rule 3.31. Accordingly, having failed to show these communications are relevant, whether 

Complaint Counsel has properly withheld the communications as privileged, or whether 

Complaint Counsel’s privilege log is adequate under Rule 3.38A need not be decided. 

IV. 

For the above stated reasons, Respondent’s Motion is DENIED. 

ORDERED: 

D. Michael Chappell 

Chief Administrative Law Judge 

Date: January 3, 2023 

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