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UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

In the matter of: 

Intuit Inc., Docket No. 9408 a corporation, 

Respondent. 

COMPLAINT COUNSEL’S OPPOSITION TO RESPONDENT INTUIT’S 

MOTION FOR DISCOVERY PURSUANT TO RULE 3.36 

This case is about Intuit’s deceptive advertising for TurboTax. Respondents, like 

Intuit, can assert legally valid defenses;1 but Intuit cannot use its defenses as a license to 

embark on a fishing expedition into the Commission’s internal deliberations and other 

irrelevant, privileged records held by the FTC Commissioners and Secretary. Complaint 

Counsel thus opposes Intuit’s Motion for Discovery Pursuant to Rule 3.36 (the 

“Motion”). 

The Rules generally cabin discovery to relevant, non-privileged materials 

collected or reviewed by “the Bureaus or Offices . . . that investigated the matter.” 16 

C.F.R. § 3.31(c)(2). These materials have been collected and, to the extent they are 

responsive to Intuit’s Requests and not privileged, are being produced on a rolling basis 

consistent with the Scheduling Order.2 Intuit’s Motion now seeks an order authorizing 

the issuance of subpoenas duces tecum to (1) the Commissioners of the Federal Trade 

Commission and their staff, and (2) the Secretary of the Federal Trade Commission and 

her staff. Intuit’s Motion seeking discovery from additional sources looks to exploit a 

narrow exception to Rule 3.31(c)(2) to expand the scope of discovery in a way that is not 

1 As explained in the Reply in Support of Complaint Counsel’s Motion for Summary 

Decision and in a forthcoming motion to strike affirmative defenses, Intuit’s affirmative 

defenses are not legally valid. 

2 Complaint counsel has already produced over 7,000 documents to Intuit. See 

Complaint Counsel’s Opposition to Intuit’s Motion to Compel Production of 

Documents. 

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supported by the plain text of the Rules or precedent. The Motion should therefore be 

denied. 

I. Introduction 

Rule 3.31(c)(2) provides that the Respondent is entitled to discovery of “materials 

that were collected or reviewed in the course of the investigation of the matter or 

prosecution of the case and that are in the possession, custody or control of the Bureaus 

or Offices of the Commission that investigated the matter.” 16 C.F.R. § 3.31(c)(2) (emphasis 

added). Rules 3.31 and 3.36 provide a limited exception: the Administrative Law Judge 

may authorize discovery from additional sources where the requesting party 

demonstrates that the material sought: (i) is reasonable in scope; (ii) is reasonably 

expected to yield relevant information; (iii) cannot reasonably be obtained by other 

means; and (iv) is specified “with reasonable particularity.” 16 C.F.R. § 3.36 

(incorporating by reference §§ 3.31(c)(1), 3.37(a)). In adopting Rule 3.36, the 

Commission recognized documents from additional sources outside the investigating 

office, such as the Commission, uninvolved Bureaus or Offices, or the Secretary, are 

“almost always protected by the deliberative process or attorney-client privileges or as 

work product,” 74 Fed. Reg. 1804, 1812 (Jan. 13, 2009), see Ex. A to Complaint Counsel’s 

Opposition to Intuit’s Motion to Compel Production of Documents, and therefore “the 

burden (and delay) of searches for responsive records and the creation of privilege logs 

should not be imposed without strong justification,” given “the lack of useful additional 

information likely to be available.” Id. at 1815. 

Intuit’s Motion seeks, generally, two categories of documents. First, Intuit 

requests materials related to the FTC’s Free Guides, .com Disclosures guide, and ability 

to seek monetary relief—items arguably related to the Complaint’s claims. Second, 

Intuit seeks materials related to its affirmative defenses, including its protestations that 

its right to adjudication before a neutral arbiter has been violated and that the 

Commission’s procedures somehow violate Intuit’s right to procedural due process. 

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In both categories of requests, Intuit impermissibly seeks to peek into the 

Commission’s internal deliberations and legal analyses to obtain materials that are not 

reasonably expected to yield information relevant to the matters at issue. See infra Part 

II. And even if such materials existed and were relevant, they would be highly 

protected. The subpoenas seek, for example, categories of documents that on their face 

would be covered by the deliberative process and attorney-client privileges, or are 

exempt from production as work product. See infra Part III. This includes documents 

related to the Commission’s “consideration of whether to update its [.com Disclosure] 

guidance document,” “votes or potential votes” taken by the Commission, and “internal 

memoranda or other legal analyses” “related to the FTC’s ability to obtain monetary 

relief following the Supreme Court’s April 22, 2021 decision in AMG Capital 

Management, LLC v. Federal Trade Commission, No. 19-508.” See, e.g., Commission 

Requests 5 and 7. 3 Respondent’s subpoenas, which request privileged documents such 

as legal analyses created for a client by an attorney and pre-decisional deliberative 

materials, strike at the core of the Commission’s concerns that such discovery will 

impose undue burdens without yielding discoverable information because the 

documents are privileged. 74 Fed. Reg. at 1812. Moreover, Intuit asks for swaths of 

documents from the Commission and the Secretary that are overbroad in scope, in some 

cases can be obtained by other means, and are requested in vague terms. See infra Part 

III. This Court should exercise its gate keeping function to prevent Intuit from going on 

a fishing expedition into waters that are unlikely to yield any relevant, non-privileged 

documents. 

3 “Commission Request[s]” refers to Exhibit A to the Declaration of Derek Woodman 

in Support of Intuit’s Motion; “Secretary Request[s]” refer to Exhibit B to that

Declaration. 

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II. The Discovery Sought is Not Reasonably Expected to Yield Relevant 

Information 

Intuit’s conclusory statements in support of its Motion fall short of showing that 

the additional discovery it seeks is reasonably expected to yield relevant information. 

See In re LabMD, Inc., 2014 FTC LEXIS 22, *12 (F.T.C. Jan. 30, 2014) (“conclusory, 

unsupported assertions do not demonstrate relevance”). The first category of 

documents Intuit seeks, for example, is all documents and communications related to 

the FTC’s Free Guides and .com Disclosures guide, which, it claims, “would show that 

Intuit did not violate the FTC Act.” Mot. at 4. Of course, Intuit is already in possession 

of the best evidence as to whether the guidelines absolve its conduct—the guidelines 

themselves and its own ads (indeed, even in the Motion, Intuit cherry-picks from the 

.com Disclosures guide to argue that its ads were not deceptive). Intuit argues 

additional materials are relevant because “the Commission has effectively 

acknowledged that its .com Guidance supports Intuit’s theories and has sought to 

retract that guidance” in light of its determination. Mot. at 2, 4. This argument, 

seemingly supported by a coincidence of timing of public announcements and a 

confounding statement (given that the confidential nature of the Bureau’s investigations 

and negotiations) that Intuit is the only company it knows of that has raised this 

defense, cannot render relevant any and all documents and communications—regardless 

of when it was created, who created it, or why it was created—that relates to the Free 

Guides or the .com Disclosures guide. 

Intuit additionally seeks documents that it asserts are relevant to its affirmative 

defense that “one or more Commissioners prejudged the merits of the dispute.” 

Complaint Counsel does not believe that Intuit raises a valid defense. As a matter of 

law, adjudicators are presumed to be unbiased. Schweiker v. McClure, 456 U.S. 188, 195 

(1982). To rebut this presumption, a party must show “a conflict of interest or some 

other reason for disqualification.” Id. at 195-96. The evidence Intuit cites to, which 

amounts to little more than the Chair restating a press release, fails to rebut the 

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presumption. Intuit has no basis for seeking disqualification of Chair Khan or any other 

Commissioner. And Intuit should not be permitted to insert delay into these 

proceedings because it failed to seek disqualification of Chair Khan or any other 

Commissioner “at the earliest practicable time” after “reasonably hav[ing] learned, of 

the alleged grounds for disqualification. 16 C.F.R. 4.17. 

Even assuming, arguendo, this affirmative defense is appropriately before this 

Court, Intuit has not shown that the materials sought are relevant. Intuit instead makes 

vague, conclusory assertions that Chair Khan’s public statements “reasonably call into 

question her impartiality.” Mot. at 5. Intuit also alleges, without citing any source or 

record, that it “understands that inaccurate information was shared with the 

Commissioners” that “may have impacted one or more Commissioner’s decision to 

bring this case and may have led to prejudgment of the matter.” Mot. at 3. Intuit argues 

that it seeks the requested documents to “ensure a level playing field and process.” Id. 

Conjecture about the motivations of the Commission, however, does not give 

Intuit license to probe “the internal decision-making process of an administrative 

agency.” In re School Services, Inc., 1967 FTC LEXIS 125, *7 (F.T.C. June 16, 1967) (cleaned 

up); see also In re Metagenics, Inc., 1995 FTC LEXIS 23, * 1 (F.T.C. Feb. 2, 1995) (denying as 

irrelevant discovery on respondent’s unfair prosecution claim). Other than the public 

statements of Chair Khan to which Intuit has access, Intuit has not identified with 

specificity any relevant, discoverable documents that may exist other than by 

unsupported inuendo. Instead, Intuit’s proposed subpoena seeks all documents relating 

to issues of only tangential relationship to the merits of this case, such as documents 

sufficient to show the identity of the person who operated the Chair’s Twitter account 

(Commission Request 3), the narrative summary of the case provided on the FTC’s 

online docket (Secretary Request 2), and Intuit’s supposed “Rule 2.31 motion” 

(Commission Request 9; Secretary Request 4), even though Rule 2.31 does not authorize 

the filing of a “motion.” Although Intuit argues that it “should be afforded discovery to 

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confirm” its “concern[] about bias and prejudgment,” Mot. at 6, that conclusory 

statement does not render relevant a countless number of documents otherwise outside 

of its and Complaint Counsel’s reach. 

III. The Discovery Sought is Not Reasonable in Scope or Stated with Particularity, 

and Can Be Otherwise Obtained 

In a single paragraph of four sentences, which do not cite to any specific 

document request, nor to the record, nor to any issues in this case, Intuit sets forth the 

requirement that discovery be reasonable in scope and stated with particularity and 

then, in a conclusory fashion, relies on this lip service to conclude that such a standard 

has been met. Mot. at 6. This approach falls far short of demonstrating the necessary 

components of Rule 3.36 and ignores patent defects in its subpoenas. 

First, Intuit’s subpoenas are overly broad and not reasonable in scope. There are, 

for example, no temporal limitations such that Intuit’s requests on their face seek 

documents dating back to the founding of the FTC more than a century ago. Compare, In 

the Matter of 1-800 Contacts, Inc., at *5 (expressing skepticism that documents over ten 

years old would be relevant to the matter). While some requests have implied time 

limitations, such as requests for materials from Chair Khan’s Twitter account, the 

proposed subpoenas would also require the Commission to search documents and 

communications, both internal and external, dating back decades relating to its policy 

about “free” advertising. See Commission Request 6. This outcome is entirely 

unreasonable. 

More fundamentally, Intuit’s request is particularly, and unduly, onerous 

because the materials sought likely will require the review of an enormous quantity of 

privileged documents. Intuit’s requests squarely target materials protected from 

disclosure by several privileges, including the work product doctrine, attorney-client 

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privilege, and the government deliberative process privilege.4 For example, Intuit seeks 

materials that strike at the heart of the deliberative process privilege,5 such as 

documents related to “potential votes” by Commissioners (Secretary Request 1) and the 

Commission’s consideration of whether to update its .com Disclosures guide 

(Commission Request 5). The subpoenas also seek all documents relating to the 

Commission’s internal memoranda and legal analyses of its ability to obtain monetary 

relief post-AMG (see Secretary Request 5, Commission Request 7), documents that 

epitomize the kind of highly protected work product and attorney client privileged 

documents that are not discoverable, as the Commission expected would be the case in 

situations like this. See 74 Fed. Reg. at 1812. 

Intuit’s conclusory statement that “[t]he requests are also narrowly tailored to 

support Intuit’s defenses and rebut the FTC’s allegations,” and “will impose little 

burden” (Mot. at 6) contradicts the actual subpoena demands, which seek years of 

information regardless of its probative value to the matter at hand and without due 

consideration to the cost to the agency of collecting, reviewing, and cataloging the 

materials, myriad of which are surely exempt from disclosure by the agency’s 

privileges. 

Second, the discovery sought is impermissibly vague. Broadly formulated and 

imprecise requests, like those here, are generally disfavored. See, e.g., In re OSF 

Healthcare Sys., 2012 FTC LEXIS 31, *4-5 (F.T.C. Feb. 14, 2012) (“[S]ubpoena requests that 

seek documents ‘concerning’ or ‘relating to’ have been found to lack the ‘reasonable 

4 Complaint Counsel does not, and cannot, suggest any responsive documents exist nor could it formally assert any applicable privileges on behalf of the targets of the 

subpoena who Complaint Counsel does not represent. 

5 The deliberative process privilege protects documents that are “predecisional” and 

“deliberative in nature.” See, e.g., Hongsermeier v. Comm’r of Internal Revenue, 621 F.3d 

890, 904 (9th Cir. 2010). The majority of Intuit’s own requests acknowledge that 

responsive materials will fall under this privilege by repeatedly reminding the

Commissioners and Secretary to produce privilege logs. See Commission Requests 1, 4,

5, 6, & 7, and Secretary Requests 1, 2, 3, & 5. 

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particularity’ required.”). The Commission Subpoena requests, for example, “ALL 

DOCUMENTS OR COMMUNICATIONS concerning” or “related to” an unspecified 

and potentially vast (because no time limitations apply) body of “studies, research, 

expert reports, or other analyses”—none of which are identified by Intuit. See 

(Commission Request 6). This imprecise request fails to provide reasonable particularity 

regarding what specific materials Intuit seeks, and whether, or how, such materials 

relate to Intuit’s defenses, as required by Rule 3.36(b)(5). See generally Assoc. 

Merchandising Corp., 1967 WL 94071, *2 (F.T.C. Dec. 11, 1967) (denying the respondents’ 

discovery request, which “can only be evaluated with difficulty, if at all, against the 

standards of the rule” as some Commission files “would have no relevance to the issues 

involved in litigation”). And such discovery requests are particularly inappropriate in 

the context of a Rule 3.36 motion, where Intuit needs to make an affirmative showing of 

a reasonable scope to seek documents outside the parameters of discovery permissible 

under Rule 3.31. 

Finally, Intuit has not established that the subpoenas seek relevant, discoverable 

materials that it cannot obtain through means other than from the Commission and the 

Secretary. Intuit argues that it seeks documents “regarding Commissioner votes, control 

over Commissioners’ social media accounts, and Commissioners’ communications,” yet 

in many cases the relevant, non-privileged documents are already in its possession, 

such as information about the votes themselves and the contents of public social media 

accounts. The non-public documents Intuit seeks would be covered by privilege, such 

as the communications that are part of the decision-making process of the Commission, 

which are protected by the deliberative process and attorney-client privilege. See In re 

Basic Research LLC, 2004 FTC LEXIS 210, *4 (F.T.C. Nov. 4, 2004). 

IV. Conclusion 

For the foregoing reasons, Intuit’s motion requesting issuance of subpoenas to 

the Secretary and to the Commissioners should be denied. 

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Respectfully submitted, 

Dated: October 24, 2022 /s/ Sara Tonnesen 

Roberto Anguizola, IL Bar No. 6270874 

Rebecca Plett, VA Bar No. 90988 

James Evans, VA Bar No. 83866 

Sara Tonnesen, MD Bar No. 1312190241 

Federal Trade Commission 

600 Pennsylvania Ave., NW, CC-6316 

Washington, DC 20580

(202) 326-3284 / ranguizola@ftc.gov 

(202) 326-3664 / rplett@ftc.gov 

(202) 326-2026 / james.evans@ftc.gov 

(202) 326-2879 / stonnesen@ftc.gov 

Counsel Supporting the Complaint

Federal Trade Commission 

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CERTIFICATE OF SERVICE 

I hereby certify that on October 24, 2022, I electronically filed the foregoing 

Opposition to Intuit’s Motion for Discovery Pursuant to Rule 3.36 electronically using 

the FTC’s E-Filing system, which will send notification of such filing to: 

April Tabor

Office of the Secretary

Federal Trade Commission 

600 Pennsylvania Avenue, NW

Suite CC-5610 

Washington, DC 20580

ElectronicFilings@ftc.gov 

Secretary of the Commission

Clerk of the Court 

Hon. D. Michael Chappell

Chief Administrative Law Judge

Federal Trade Commission 

600 Pennsylvania Avenue, NW

Suite H-110 

Washington, DC 20580 

Administrative Law Judge 

I further certify that on October 24, 2022, I caused the foregoing document to be 

served via email on: 

David Z. Gringer 

Phoebe Silos 

Charles Bridge

Eleanor Davis 

Wilmer Cutler Pickering Hale & Dorr

LLP 

7 World Trade Center 

250 Greenwich Street 

New York, NY 10007 

David.Gringer@wilmerhale.com

Phoebe.Silos@wilmerhale.com 

Charles.Bridge@wilmerhale.com

Eleanor.Davis@wilmerhale.com 

(212) 230-8800 

Shelby Martin 

Wilmer Cutler Pickering Hale & Dorr

LLP 

1225 Seventeenth Street, Suite 2600 

Denver, CO 80202 

Shelby.Martin@wilmerhale.com 

(720) 274-3135 

Katherine Mackey

Wilmer Cutler Pickering Hale & Dorr

LLP 

60 State Street 

Boston, MA 02109 

Katherine.Mackey@wilmerhale.com

(617) 526-6000 

Jonathan E. Paikin 

Jennifer Milici 

Derek A. Woodman 

Vinecia Perkins 

Andres Salinas 

Spencer Todd

Jocelyn Berteaud

Benjamin Chapin

Margaret (Molly) Dillaway

Reade Jacob 

Wilmer Cutler Pickering Hale & Dorr

LLP 

1875 Pennsylvania Avenue NW 

Washington, DC 20006

Jonathan.Paikin@wilmerhale.com 

Jennifer.Milici@wilmerhale.com 

Derek.Woodman@wilmerhale.com 

Vinecia.Perkins@wilmerhale.com 

Andres.Salinas@wilmerhale.com 

Spencer.Todd@wilmerhale.com

Joss.Berteaud@wilmerhale.com 

Benjamin.Chapin@wilmerhale.com 

Molly.Dillaway@wilmerhale.com 

Reade.Jacob@wilmerhale.com 

(202) 663-6000 

Attorneys for Respondent, Intuit Inc. 

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/s/ Sara Tonnesen 

Sara Tonnesen 

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