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 SECOND MOTION TO 

COMPEL RESPONDENTS TO PRODUCE DOCUMENTS 

 Although Respondents intend to amend their Answer to admit all material allegations in 

the Complaint and have thereby substantially narrowed disputed issues,1 limited additional 

discovery related to scope of relief should proceed. As previously established, “there is nothing 

in Rule 3.12(b)(2) or the Scheduling Order issued in this case that prevents Complaint Counsel 

from pursuing discovery regarding issues that remain relevant after [the motions to amend the 

answer and complaint] are resolved.” No. 600817 (Mar. 1, 2021), at 5. Specifically, 

Respondents’ admissions do not resolve the issue of appropriate relief, and facts outside of the 

complaint may be considered in resolving that issue. See In re Zale Corp., 77 FTC 1635, 1970 

WL117293, *1 (1970) (“The selection of an appropriate remedy, and the admissibility of 

 

1

 Because Judge Chappell rejected Complaint Counsel’s prior request that Respondents specify which 

allegations they were admitting, see No. 600937 (Mar. 10, 2021) at 4, on the ground that Respondents’ 

intent is irrelevant given the broad language of Rule 3.12(b)(2) admissions, Complaint Counsel assumes 

Respondents have admitted, in their entirety, all allegations material to any count in the Complaint, and 

the only remaining disputed issues concern the scope of relief and Respondents’ three remaining 

affirmative defenses. See also In re Auslander Decorator Furniture, Inc., 83 FTC 1542, 1974 WL 

175916 (recognizing Respondents expressly carved out specific factual issues related to individual 

liability from their general admissions under Rule 3.12(b)(2)). 

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evidence with regard thereto, are governed by the unlawful practices actually found to exist, and 

not by the allegations of the complaint.”) Rule 3.12(b)(2) states that the answer and complaint 

“will provide a record basis on which the Commission shall issue a final decision,” but does not 

state the pleadings provide the only basis for the final decision. This reading of the Rule is 

consistent with the Court’s interpretations of other parts of Rule 3.12(b)(2). See No. 600937, at 4 

(concluding affirmative defenses permissible because Rule does not state the answer “shall 

consist only of the required statement of admission, and this limitation will not be implied”) 

(internal quotes omitted). 

Accordingly, Complaint Counsel respectfully requests2

 Respondents be required to: 

(1) clearly identify any categories of documents responsive to Requests 1 and 2 in Complaint 

Counsel’s First Requests for Production (“RFPs”)3 withheld on grounds other than privilege or 

the work product doctrine; (2) promptly produce all non-privileged documents responsive to 

these Requests; and (3) produce a privilege log. As explained below, documents responsive to 

Requests 1 and 2 are highly relevant to evaluating the seriousness and deliberateness of 

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

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

I. BACKGROUND

Complaint Counsel served the RFPs on December 22, 2020, and Respondents served 

their Objections and Responses on January 21, 2021 (“Responses”). Averill Decl., CCX-A5. 

Respondents sent their first and only production (including 492 documents) to Complaint 

Counsel on January 25, 2021. Averill Decl. at ¶ 7. Respondents’ counsel initially stated they 

would review and produce additional responsive documents within two weeks. Averill Decl., 

CCX-A6. However, during subsequent conferences on February 1 and 11, counsel stated that 

 

2 Complaint Counsel’s timely Motion to Compel was denied on March 1, 2021 without prejudice to refiling it following resolution of then pending Motions to Amend the Answer and Complaint. See No. 

600817 (Mar. 1, 2021). 

3 See Averill Decl., CCX-A3.

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Respondents did not intend to review potentially responsive documents, prepare a privilege log,

or complete their production because it was too costly to do so. Further, on February 1, counsel 

asserted that additional discovery was irrelevant because Respondents instead preferred to pursue 

other options, including terminating the administrative case by settlement, withdrawing their 

Answer, amending their Answer to admit allegations in the Complaint, or declining to participate 

in discovery and incurring sanctions from the Court that would terminate the proceeding. Averill 

Decl. at ¶¶ 14, 15, CCX-A8. Respondents’ new objections were not included in their 

Responses.4

 Respondents’ Motion to Amend their Answer to admit all material complaint 

allegations pursuant to Rule 3.12(b)(2) was granted on March 10, 2021. See No. 600937. 

Respondents have not yet filed their Amended Answer. 

II. LAW 

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

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

proposed relief, or to the defenses of any respondent.” (emphasis added). The Notice of 

Contemplated Relief attached to the Complaint includes fencing-in provisions intended to 

prevent future violations.5 Even if Respondents admit all allegations in the Complaint, limited 

discovery and a hearing to introduce and consider evidence related to the proper scope of relief 

are necessary. See Rule 3.12(b)(2) (stating admissions operate as “a waiver of hearing as to the 

facts alleged in the complaint”). Facts relevant in determining the proper scope of fencing-in 

relief include those related to: (1) the seriousness and deliberateness of the violation; (2) the ease 

with which violative conduct may be transferred to other products; and (3) any history of prior 

 

4 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.”).

5 The Commission’s authority to include fencing-in relief in cease and desist orders to prevent future 

illegal conduct is well-established. See, e.g., FTC v. Colgate-Palmolive Co., 380 U.S. 374, 395 (1967); 

FTC v. Ruberoid Co., 343 U.S. 470, 473 (1952).

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violations. See Telebrands Corp. v. FTC, 457 F.3d 354, 358 (4th Cir. 2006) (quoting Stouffer 

Foods Corp., 118 FTC 746, 811 (1994)). 

When a party fails to comply with its discovery obligations, a motion to compel under 

Rule 3.38(a) is appropriate. See also Rule 3.37(b). Discovery will be limited 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.”6 As explained 

below, Respondents cannot carry this burden and the discovery sought is highly relevant to 

relief. 

III. ARGUMENT

A. Respondents are withholding highly relevant documents. 

The RFPs include a targeted list of eleven document requests, and Respondents have 

produced little in response. See Averill Decl. at ¶¶ 7, 9, 11, CCX-A3. In light of Respondents’ 

recent decision to admit all material allegations in the Complaint, Complaint Counsel now seeks 

an order requiring them to produce documents responsive to Request 1 and 2. These requests are 

not overly burdensome. Request 1 asks for copies of each unique ad for the challenged products, 

dissemination information for each ad, as well as “all Documents Related To the content, 

development, analysis, review or approval of such Advertisements.” CCX-A3. In response, 

Respondents produced ads, but no business records containing dissemination information. They 

also refused to produce any documents related to “the content, development, analysis, review or 

approval” of the ads on several grounds including the erroneous contentions that Request 1 is 

overly broad and “fails to describe the documents sought with reasonable particularity.” CCX-

 

6 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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A5. Request 2 asks for communications with certain identified third parties (including 

consultants, a copywriter, and a product endorser, but no attorneys) related to the challenged 

products. Respondents objected to producing any “privileged documents” and stated nonprivileged documents “will be produced.” Id. However, they never produced any responsive 

documents. Documents responsive to Requests 1 and 2 are crucial in evaluating the seriousness 

and deliberateness of Respondents’ unlawful conduct, as they will show the numbers of each ad 

disseminated (seriousness), as well as the advice and information Respondents were aware of 

when they made decisions about the content and dissemination of challenged ads

(deliberateness). 

Respondents’ limited document production mainly consists of multiple copies of 

documents related to individual ingredients in the challenged products that were previously 

produced to the FTC7

 as part of an investigation that preceded the contempt case in FTC and 

State of Maine v. Health Research Laboratories, et al., No. 2:17-cv-00467-JDL (D. Me.). Id. 

Significantly, Respondents have not produced any documents or communications clearly related 

to work performed by consultants or advisors whom Respondents previously identified as being 

involved in developing and reviewing the advertisements in question or in evaluating 

substantiation for relevant claims (i.e., Richard Cohen, Inna Yegorova, Stephen Kimball, Curtis 

Walcker/Dietary Supplement Experts). See Averill Decl. at ¶ 11. Such documents would clearly 

be responsive to Requests 1 and 2. Moreover, conversations with counsel suggest Respondents 

are improperly asserting that attorney-client privilege or the work product doctrine somehow 

protect all of these documents, and they have produced no privilege log. Averill Decl. at ¶¶ 12, 

17. 

Respondents also have not produced any documents showing how ad content was

developed, reviewed, or approved, other than a few statements of approval apparently signed by 

 

7 Instructions in the RFPs advised Respondents they were not required to re-produce documents 

previously submitted to the FTC. See Averill Decl., CCX-A3 (Instruction C).

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Richard Cohen. Id. at ¶ 11. Respondents have produced no emails, notes, or correspondence 

from the relevant period to Complaint Counsel. Id. They also have not produced any business 

records related to either Respondents’ advertising and marketing strategy for the four products at 

issue or product development. Id. Additionally, Respondents have not produced a single 

document that is clearly authored by, or addressed to, either Respondent Kramer Duhon or his 

nephew, Kyle Duhon, who assisted him in operating Health Research Laboratories and Whole 

Body Supplements. Id. These categories of missing documents are likely to include documents 

responsive to Request 1 and 2. 

B. Respondents’ refusal to produce documents is prejudicial.

Respondents’ ongoing failures to collect, review, and produce documents is highly 

prejudicial to Complaint Counsel and to fact-finding in this matter related to the scope of relief. 

The deadline for Complaint Counsel to issue document requests, interrogatories, and subpoenas 

duces tecum is imminent (March 25, 2021), and it is difficult to proceed with depositions or 

determine what additional discovery is necessary when Respondents’ document production is so 

deficient. 

C. Complaint Counsel’s efforts to meet and confer have been unsuccessful. 

Respondents’ counsel has largely refused to engage in the meet and confer process to 

resolve questions about their document collection, production, and Responses. Averill Decl. at 

¶¶ 5, 15. Respondents’ Initial Disclosures failed to provide information about all categories of 

relevant documents and ESI in their custody and control, but instead essentially copied 

Complaint Counsel’s Initial Disclosures produced one day earlier. Averill Decl., CCX-A1 & 

A2. After receiving the Initial Disclosures, Complaint Counsel followed up by telephone and 

letter to request information about the types of documents and ESI in Respondents’ custody and 

control, the custodians being searched, and whether Respondents would produce ESI in 

accordance with the format requested in the RFPs (which they ultimately did not). See Averill 

Decl. at ¶ 5, CCX- A4. Respondents’ counsel did not respond to any of these reasonable 

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requests for information. Averill Decl. at ¶ 5. On January 27, in advance of filing the original

motion to compel, Complaint Counsel asked to meet and confer about Respondents’ Responses 

and document production. Averill Decl., CCX-A7. Respondents’ counsel postponed that 

conversation until February 1, 2021, and then sought to cancel it hours before the scheduled 

time. Averill Decl., CCX-A8. Because of the tight timeline for discovery in the administrative 

case, Complaint Counsel insisted on proceeding with the conference to discuss deficiencies in 

Respondents’ Responses and spent approximately 75 minutes trying to meet and confer about 

specific questions and problems related to Respondents’ Responses and initial document 

production, as well as their Objections and Answers to the First Set of Interrogatories. See

Averill Decl. at ¶¶ 14, 15, CCX-A8. However, Respondents’ counsel repeatedly resisted 

substantively participating in that conversation based on his contention that further discovery 

was not necessary or relevant, and he stated Respondents would not produce additional 

documents or otherwise supplement any of their discovery responses. Id. at ¶ 15. During a 

telephone conference held on March 23, 2021 to discuss this second motion to compel, 

Respondents’ counsel confirmed their position is that Respondents should not be required to 

participate in further discovery since they intend to amend their Answer pursuant to Rule 

3.12(b)(2). 

IV. CONCLUSION 

For all of the above reasons, Complaint Counsel requests an order requiring Respondents 

to: (1) identify any categories of documents responsive to Requests 1 and 2 they are withholding 

based on objections other than attorney-client privilege or the work product doctrine; (2) produce 

all non-privileged documents responsive to Requests 1 and 2 within 10 business days of the 

Order; and (3) produce a privilege log providing sufficient information to allow Complaint 

Counsel to evaluate Respondents’ assertions of privilege or the work product doctrine within 15 

business days of the Order. 

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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 conferred with Respondents’ 

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

to compel, but the parties were unable to resolve any of the issues by agreement. The telephone 

conference took place by telephone on March 23, 2021 starting at 2:45 PM (Eastern). 

 

 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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CERTIFICATE OF SERVICE

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

Respondents to Produce Documents and attachments to Respondents’ Counsel on March 24, 

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 SECOND

MOTION TO COMPEL RESPONDENTS TO PRODUCE DOCUMENTS

This matter having come before the Chief Administrative Law Judge on March 24, 2021, 

upon Complaint Counsel’s Second Motion to Compel Respondents to Produce Documents, it is 

hereby ORDERED that: 

1. The Motion is GRANTED; and

2. Within 5 days of this Order, Respondents shall identify all categories of 

documents responsive to Complaint Counsel’s First Set of Request for Production 

they are withholding on grounds other than privilege or the work product 

doctrine; 

3. Within 10 business days of this Order, Respondents shall produce all nonprivileged documents that are responsive to Complaint Counsel’s First Set of 

Request for Production; 

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4. Within 15 business days of this Order, Respondents shall produce to Complaint 

Counsel a privilege log identifying all documents withheld on the basis of any 

privilege or the work product doctrine. The log must provide sufficient 

information to allow Complaint Counsel to evaluate Respondents’ assertions of 

privilege and the work product doctrine including, but not limited to, information 

such as the type of document, title or file name of documents, authors, recipients, 

date, and the subject lines of any type of correspondence. 

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 Second Motion to Compel 

Respondents to Produce Documents. 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.).

2. On December 9, 2020, I served Complaint Counsel’s Initial Disclosures on 

Respondents’ counsel via email. A true and correct copy of those Initial Disclosures are attached 

as CCX-A1. 

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3. On December 10, 2020, I received Respondents’ Initial Disclosures from 

Respondents’ counsel, Joel Reese. A true and correct copy of these Initial Disclosures are 

attached as CCX-A2. They appeared to have been largely copied from Complaint Counsel’s 

Initial Disclosures, and they do not provide any information about where Respondents are storing 

potentially relevant documents. Respondents also did not list categories of relevant documents 

one would expect to be in their custody such as emails, documents related to work performed by

non-attorney consultants and copywriters related to the challenged ads, or business records 

related to advertising or marketing strategy for Black Garlic Botanicals, BG18, The Ultimate 

Heart Formula, or Neupathic. 

4. On December 22, 2020, I served Complaint Counsel’s First Requests for 

Production to Respondents (“RFPs”) by email to their counsel, Joel Reese and Joshua Russ. A 

true and correct copy of the RFPs are attached as CCX-A3. 

5. On January 6, 2021, my co-counsel, Jonathan Cohen, and I had a telephone 

conference with Joel Reese to discuss questions related to the RFPs and Respondents’ request 

that Complaint Counsel provide search terms. During that conference, I asked Mr. Reese for 

specific information about the Respondents’ document collection efforts, the custodians 

searched, how and where ESI was stored, as well as the volume and format of stored ESI. Mr. 

Reese did not provide any specific information about Respondents’ collection efforts or any 

information relevant to assessing burden. On January 11, 2021, I sent a letter to Mr. Reese

following up about some of these unanswered questions. A true and correct copy of this letter is 

attached as CCX-A4. I never received any information from Mr. Reese in response to these 

questions. 

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6. On January 21, 2021, I received Respondents’ Objections and Responses to 

Complaint Counsel’s First Requests for Production (“Responses”). A true and correct copy of 

the Responses are attached as CCX-A5. 

7. 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 the RFPs. It included 492 documents. 

8. On January 25, 2021, Respondents’ counsel stated he planned to review and

produce additional responsive documents to Complaint Counsel within two weeks. A true and 

correct copy of this email is attached as CCX-A6. 

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

my review, I noticed 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.). 

10. 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 

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

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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 that was 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. 

11. Based on my review, the January 25 Production did not include any documents 

related to the development, analysis, review, or approval of the challenged advertisements other 

than a few statements of ad approval apparently signed by Richard Cohen. The production did 

not include any communications or documents clearly related to work done by individuals or 

entities who assisted the Respondents on projects related to advertising and substantiation such 

as documents involving Inna Yegerova, Inna Consulting, Curtis Walcker, Dietary Supplement 

Experts, LLC, or Stephen Kimball. The production did not include documents or any 

communications related to either Respondents’ advertising and marketing strategy or product 

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development for Black Garlic Botanicals, BG18, The Ultimate Heart Formula, or Neupathic. 

Respondents have not produced any contemporaneous emails, notes, or correspondence. 

Respondents have not produced any documents clearly authored by, or addressed to, either 

Kramer Duhon or Kyle Duhon. The January 25 Production does not include any documents 

related to Respondents’ alleged defense that Kramer Duhon was not responsible for the conduct 

of the corporate Respondents. 

12. Respondents have not produced a privilege log. 

13. 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, the Responses, 

as well as Respondents’ Objections and Answers to the First Set of Interrogatories. 

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

14. On February 1, a few hours prior to 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, the 

Responses, and Respondents’ Objections and Answers to the First Set of Interrogatories. A true 

and correct copy of an email string reflecting this exchange between counsel is attached as CCXA8. 

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

by telephone with Joel Reese in an effort to discuss and resolve the issues raised in the Motion to 

Compel Respondents to Produce Documents as well other issues related to their Objections and 

Answers to the First Set of Interrogatories. 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 Respondents’ Objections and Answers to the First Set 

of Interrogatories in an effort to determine if issues could be narrowed by agreement. 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 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. 

16. Following the conference on February 1, counsel for the parties had a discussion

related to settlement that was ultimately not successful. 

17. During the conversation on February 1 and during a subsequent telephone call on 

February 11, 2021, Mr. Reese advised us Respondents’ position is that attorney-client privilege 

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7 

and/or the work product doctrine applies to documents related to unidentified non-attorney 

consultants who were involved in reviewing the challenged advertisements and evaluating 

substantiation. He told us the law firm of Olshan Frome Wolosky LLP referred Respondents to

those consultants, and that such documents would not be produced to Complaint Counsel on the 

grounds they are protected by the attorney-client privilege or the work product doctrine. 

18. During a telephone call with Mr. Reese held on March 23 to meet and confer 

about Complaint Counsel’s Second Motion to Compel Respondents to Produce Documents and 

other anticipated motions, he confirmed that Respondents’ position is they should not be required 

to participate in any additional discovery because of their intention to file an amended Answer 

pursuant to Rule 3.12(b)(2). 

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

true and correct. 

Executed on: March 24, 2021 /s/ Elizabeth J. Averill 

Alexandria, VA 

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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.

________________________________________________ 

INITIAL DISCLOSURES 

Complaint Counsel provides the following initial disclosures to Respondents’ Counsel as 

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

I. Individuals Likely to have Discoverable and Relevant Information

Complaint Counsel hereby provides the names and, if known, the address and telephone 

number of persons likely to have discoverable information relevant to the allegations in the 

Commission’s complaint, to the proposed relief, or to the defenses of the Respondents. 

A. Respondents’ current and former officers and employees

Respondents’ current and former officers and employees are likely to have discoverable 

information. These individuals include, but are not limited to, the following individuals of 

whom Complaint Counsel is currently aware and whose contact information would be in the 

Respondents’ possession, custody, and control. 

1. Kramer Duhon

2. Kyle Duhon

3. Debbie Curley

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B. Third Parties

Various third parties are also likely to have discoverable information relevant to the 

allegations in the Commission’s complaint, to the proposed relief, or to the defenses of the 

Respondents. They include, but are not limited to, the following individuals of whom Complaint 

Counsel is currently aware.

1. Dr. Richard Cohen

61243 Gorge View Street

Bend, OR 97702

2. Dr. Inna Yegorova

PO Box 280848

Northridge, CA 91328

818-437-8185 (telephone no. for Inna Consulting)

3. Kurt Comae or Kurt Komae

16808 Wilkie Avenue

Torrance, CA 90504

4. Curtis Walcker

Dietary Supplement Experts, LLC

1781 W Janet Ct

Eagle, ID 83616

Mr. Walcker is represented by counsel, Justin Prochnow of Greenberg Traurig,

LLP, 303-572-6562

5. Andrew Graham, Ship-Right Solutions LLC

165 Pleasant Avenue

South Portland, ME 04106

6. Andrew Lustigman

Olshan Frome Wolosky

1325 Avenue of Americas

New York, NY 10019

212-451-2258

7. Sheldon Lustigman

Olshan Frome Wolosky

1325 Avenue of Americas

New York, NY 10019

212-451-2262

8. Scott Shaffer

Olshan Frome Wolosky

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1325 Avenue of Americas 

New York, NY 10019 

212-451-2302

9. Stephen Kimball

9489 Canyon Heights Drive

Cedar Hills, UT 84062

330-671-5920

10. Joseph Russo, Impulse Media, Inc.

248 Main Street

Danbury, CT 06820-6635

203-207-0227

11. Tom Sarraco, Direct Access Marketing Services, Inc.

6851 Jericho Turnpike, #245

Syosset, NY 11791

12. Phil Terriaca, TLC Global Impression

5710 Rue Donahue

Saint-Laurent, QC H4S 1C1, Canada

1-514-337-0311

13. Scott Scordas, Evolution Marketing Concepts

1595 Peachtree Parkway

Cumming, GA 30041

678-513-4180

14. Teddy Laiw, NextRep, LLC

Two City Center, Suite 4

Portland, ME 04101

207-523-5128

NextRep is represented by counsel, A.J. Hungerford in Portland, Maine, 207-409-

4843

15. Jennifer Osterhouse

3752 Danube Drive

Davidsonville, MD 21035

16. Joel Myerson, Pure Source, LLC

9750 NW 17th Street

Miami, FL 33172

305-477-8111

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C. FTC Staff

Respondents should contact any FTC employee only through Complaint Counsel.

The following FTC staff have information that may be used to support allegations in the 

Commission’s complaint: 

Adam Rottner 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Mailstop CC-9528 

Washington, DC 20580 

Mr. Rottner is an investigator assigned to the FTC’s Bureau of Consumer Protection, 

Division of Enforcement, who has performed website captures related to websites operated by 

the Respondents and obtained corporate filings for Health Research Laboratories, LLC and 

Whole Body Supplements, LLC. 

II. Documents and Electronically Stored Information

Complaint Counsel lists the following categories of documents and electronically

stored information (“ESI”) in its possession, custody, or control that may be relevant to the 

Commission’s complaint, to the proposed relief, or to the defenses of the Respondents. Unless 

otherwise noted, these documents and ESI are located at 600 Pennsylvania Avenue, NW, 

Washington, DC 20580 or 400 7th Street, SW, Washington, DC, 20024. 

A. Submissions to the FTC’s Division of Enforcement from Health Research

Laboratories, LLC, Whole Body Supplements, LLC, and/or Kramer Duhon

• Statement of Compliance containing acknowledgment of receipt of

Stipulated Final Judgment and Order entered on January 16, 2018 signed by

Kramer Duhon on 1/23/2018.

• Compliance report dated 3/29/2018 and exhibits.

• Supplemental Compliance report dated 5/4/2018 and exhibits.

• Supplemental Statement of Compliance dated 6/6/2018 and documents

HRL004895-005223.

• 1/30/2019 Submission including Letter from A. Lustigman to Robert Frisby

and production HRL005224-005680.

• 4/10/2019 Letter from A. Lustigman to R. Frisby.

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• 5/3/2019 Submission including Letter from A. Lustigman to R. Frisby and

production HRL005681-HRL007710.

• 6/20/2019 Letter from A. Lustigman to R. Frisby and HRL007711-8133.

• Certification verifying Jan. 30, 2019, May 3, 2019, and June 20, 2019

responses signed by Kramer Duhon on July 2, 2019.

• 8/7/2019 Submission including Letter from S. Shaffer to E. Averill and

production HRL007732-7749, HRL007992-8020, HRL008146-8148;

HRL008150-8162.

• 9/5/2019 Email from A. Lustigman to E. Averill and HRL008149

• 9/27/2019 Letter from A. Lustigman to E. Averill and production

HRL008163, 8164-8231.

• 10/11/2019 Letter from A. Lustigman to E. Averill and R. Frisby

Complaint Counsel’s understanding is that Respondents already have copies of all of the 

above submissions. 

B. Correspondence between FTC attorneys and counsel for Health Research

Laboratories, LLC, Whole Body Supplements, LLC, and Kramer Duhon.

Complaint Counsel’s understanding is that Respondents already have copies of all 

correspondence between FTC attorneys and their counsel. 

C. Corporate filings for Health Research Laboratories, LLC and Whole Body

Supplements, LLC from the Nevada Secretary of State.

Complaint Counsel’s understanding is that Respondents already have these documents. 

They are also publicly available. 

D. Mailers for BG18, Black Garlic Botanicals, The Ultimate Heart Formula, and

Neupathic submitted to the FTC by consumers.

Complaint Counsel’s understanding is that Respondents already have copies of these 

documents, because they disseminated the mailers. 

E. Docket entries in FTC and State of Maine v. Health Research Laboratories, LLC,

et al., 2:17-cv-00467-JDL (D. Maine).

F. Warning Letter from U.S. Federal Drug Administration to Kramer Duhon and

Health Research Laboratories, LLC dated October 9, 2014.

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A copy of this letter was previously produced to the FTC by Health Research 

Laboratories with a Bates stamp of HRL000705-709. A response from Andrew 

Lustigman on behalf of Health Research Laboratories to the FDA was previously 

produced to the FTC with a Bates stamp of HRL00710. 

G. Consumer complaints related to the Respondents in the FTC’s Consumer

Sentinel database.

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CERTIFICATE OF SERVICE

I certify that a copy of Complaint Counsel’s Initial Disclosures pursuant to 16 C.F.R. 

§ 3.31(b) was served on counsel for the Respondents on December 9, 2020 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

s/ Elizabeth J. Averill 

Elizabeth J. Averill

Federal Trade Commission

600 Pennsylvania Ave, NW, CC-9528 

Washington, DC 20580 

Telephone: 202-326-2993 

Email: eaverill@ftc.gov

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UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

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’ INITIAL DISCLOSURES

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

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

following initial disclosures to the Complaint counsel as required by Federal Trade 

Commission’s Rules of Practice, 16 C.F.R. § 3.31(b). 

I. Individuals Likely to have Discoverable and Relevant Information

Respondents hereby provide the names and, if known, the address and telephone

number of persons likely to have discoverable information relevant to the allegations in 

the complaint, to the proposed relief, or to the defenses of the Respondents.

A. Respondents’ current and former officers and employees

Respondents’ current and former officers and employees are likely to have 

discoverable information. These individuals include, but are not limited to, the

following individuals of whom Respondents are currently aware and whose contact 

information would be in the Respondents’ possession, custody, and control. 

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1. Kramer Duhon

c/o Joel W. Reese

Reese Marketos, LLP

750 N. St. Paul Street, Suite 600

Dallas, TX 75225

214-382-9801

2. Kyle Duhon

c/o Joel W. Reese

Reese Marketos, LLP

750 N. St. Paul Street, Suite 600

Dallas, TX 75225

214-382-9801

B. Third Parties

Various third parties are also likely to have discoverable information relevant to 

the allegations in the complaint, to the proposed relief, or to the defenses of the 

Respondents. They include, but are not limited to, the following individuals of whom 

Respondents are currently aware.

1. Elizabeth Averill

Federal Trade Commission

600 Pennsylvania Avenue, NW

Washington, DC 20580

202-326-2993

2. Dr. Richard Cohen

61243 Gorge View Street

Bend, OR 97702

3. Joel Myerson

Pure Source, LLC

9750 NW 17th Street

Miami, FL 33172

305-477-8111

4. Dr. Inna Yegorova

PO Box 280848

Northridge, CA 91328

818-437-8185 (telephone no. for Inna Consulting)

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5. Curtis Walcker

Dietary Supplement Experts, LLC

1781 W Janet Ct

Eagle, ID 83616

c/oJustin Prochnow

Greenberg Traurig, LLP

303-572-6562

C. FTC Staff

Respondents should contact any FTC employee only through Complaint Counsel. 

The following FTC staff has information that may be used to support allegations in the 

complaint: 

Adam Rottner 

Federal Trade Commission

600 Pennsylvania Avenue, NW Mailstop CC-9528

Washington, DC 20580

Mr. Rottner is an investigator assigned to the FTC’s Bureau of Consumer 

Protection, Division of Enforcement, who has performed website captures related to 

websites operated by the Respondents and obtained corporate filings for Health 

Research Laboratories, LLC and Whole Body Supplements, LLC. 

II. Documents and Electronically Stored Information

Respondents’ Counsel lists the following categories of documents and

electronically stored information (“ESI”) in its possession, custody, or control that may be 

relevant to the complaint, to the proposed relief, or to the defenses of the Respondents. 

Unless otherwise noted, these documents and ESI are located at 600 Pennsylvania Avenue, 

NW, Washington, DC 20580 or 400 7th Street, SW, Washington, DC, 20024.

A. Correspondence between FTC attorneys and Health Research Laboratories,

LLC, Whole Body Supplements, LLC, and Kramer Duhon, including

information and studies provided to the FTC.

Complaint Counsel already has copies of all correspondence between FTC

attorneys and their counsel. In fact, the FTC’s experts have already cited many of these 

documents in their prior reports in federal court. 

B. Corporate filings for Health Research Laboratories, LLC and Whole Body

Supplements, LLC from the Nevada Secretary of State.

Complaint Counsel already has these documents. They are also publicly available.

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C. Mailers for BG18, Black Garlic Botanicals, The Ultimate Heart Formula,

and Neupathic submitted to the FTC by consumers.

Complaint Counsel already has these documents. 

D. Docket entries in FTC and State of Maine v. Health Research Laboratories,

LLC, et al., 2:17-cv-00467-JDL (D. Maine).

Complaint Counsel already has these documents. 

E. Customer testimonials on the products at issue.

Complaint Counsel has the documents or the documents will be provided. 

Dated: December 11, 2020 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 

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CERTIFICATE OF SERVICE 

I certify that a copy of Complaint Counsel’s Initial Disclosures pursuant to 16 

C.F.R. § 3.31(b) was served on Complaint Counsel on December 10, 2020 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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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 REQUESTS FOR PRODUCTION TO RESPONDENTS

Pursuant to the Rules of Practice, 16 C.F.R. § 3.37, Complaint Counsel requests that 

Respondents produce the Documents and tangible things described below by January 21, 2021 

via electronic submission through a Secure File Transfer link to be provided by Complaint 

Counsel. Complaint Counsel also requests a conference to discuss the form and manner in which 

Respondents will produce these Documents. 

REQUESTS FOR PRODUCTION 

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

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

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

development, analysis, review or approval of such Advertisements. 

2. Produce all Documents constituting or reflecting Communications Related To any

Identified Product with any Subject Third Party. 

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3. Produce all Scientific and Efficacy Information Related To any of the Subject

Claims. 

4. Produce physical samples of each Physical Product shipped or delivered to

consumers on or after January 17, 2018. 

5. Produce Documents sufficient to establish the formulation of each Identified

Product including (i) the exact type and dosage of the ingredients that You expected each

Identified Product would contain; (ii) the exact type and dosage of the ingredients each Identified 

Product actually contained when shipped to consumers; and (iii) testing, measurements or 

analysis of any sort Related To either of the foregoing. 

6. Produce all Documents Related To whether and how an Identified Product, or any

ingredient therein, is absorbed or used by the human body after the Identified Product is taken 

orally. 

7. Produce Documents sufficient to establish the volume of sales of each Identified

Product, and the Net Revenue from such sales, on or after January 17, 2018. 

8. Produce all Documents Related To any defenses You intend to assert in this

matter. 

9. Produce all Documents constituting or reflecting Communications with Your

customers on or after January 17, 2018 Related To the efficacy or lack of efficacy of any 

Identified Product. 

10. Produce a Customer List.

11. Produce all Documents You rely on, or refer to, in any answer to any

Interrogatory in this matter. 

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DEFINITIONS

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

necessary, to bring within the scope of any Request all information that otherwise might be 

construed as outside its scope. 

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

C. “Advertisement” or “Advertisements” or “Advertising” 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 or other 

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

newsletters. 

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

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E. “Communications” means conversations, meetings, discussions, and any other

communicative exchange or message, whether in person, by telephone, email, text message, 

social media, or otherwise, as well as all Documents reflecting those communications. 

F. “Customer List” means Documents sufficient to identify the name, address, email, and

phone number for all consumers that purchased, received, to whom you delivered, or whom you 

billed for each Identified Product on or after January 17, 2018. 

G. “Document” or “Documents” mean the complete original and any non-identical 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, 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.”

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 

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(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” means Black Garlic Botanicals, BG18 (also known as BG-18), The

Ultimate Heart Formula, and Neupathic. 

K. “Net Revenue” means all amounts buyers paid (including charges for each Identified

Product, shipping and handling, or any other charges buyers paid) minus any refunds. 

L. “Referring To” or “Relating To” means discussing, describing, reflecting, containing,

analyzing, studying, reporting, commenting on, evidencing, constituting, setting forth, 

considering, recommending, concerning, or pertaining to, in whole or in part. 

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

LLC; and Kramer Duhon, either individually or collectively.

N. “Scientific and Efficacy Information” means: (i) tests, reports, studies, clinical trials,

experiments, demonstrations, scientific literature, and written opinions Related To any Identified 

Product or any ingredient (or combination of ingredients) therein; (ii) any information that You 

contend experts in the scientific community might rely upon, in whole or in part, to determine 

whether any Identified Product provide or confer any benefit or other effect; and (iii) any other 

material questioning, confirming, contradicting, or analyzing any of the foregoing. 

O. “Subject Claims” means the claims identified in paragraphs 7, 9, 11, 13, 14, 16, 18 and

20 of the Complaint issued in this matter. 

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P. “Subject Third Party” means Richard Cohen, M.D., Inna Yegorova, Inna Consulting,

Curtis Walcker, AIBMR Life Sciences, Inc., Dietary Supplement Experts, LLC, Stephen 

Kimball, and Jesse Duvell.1 

Q. “Physical Product” means an Identified Product and its packaging as shipped or

delivered to consumers, including labelling, images, inserts, bottling, and any other packaging or 

materials that accompany the Identified Product and contain or reflect Communications. 

R. “You” or “Your” means Respondents.

INSTRUCTIONS

A. Ongoing Duty to Supplement: These Requests for Production are continuing in nature

and require supplemental responses pursuant to the Rules of Practice, § 3.31(e). Responsive 

Documents obtained or discovered after your initial production must be produced promptly. 

B. Covered Documents: You must furnish every responsive Document 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. 

C. Document Identification: Documents responsive to more than one Request herein need

only be submitted once. If any responsive Documents have been previously supplied to the FTC, 

You may comply with these Requests for Production by identifying the Document(s) previously 

provided, the date of submission, and designating particular previously-produced Documents (by 

Bates number) as responsive to a specific Request or Requests. 

D. Document Production: You must produce Documents in the order in which they appear

in Your files or as electronically stored and without being manipulated or otherwise rearranged; 

if Documents are removed from their original folders, binders, covers, containers, or electronic 

1

 Exhibit A to the Complaint (HRL004991) mentions Duvell. 

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source to be produced, then You must specify the folder, binder, cover, container, or electronic 

media or file paths from which such Documents came. In addition, number by page (or file, for 

those Documents produced in native electronic format) all Documents in Your submission, with 

a unique Bates identifier. 

E. Privilege Claims: If You withhold any responsive Document based on a claim of

privilege or any similar claim, You must assert the claim no later than the return date for these 

Requests for Production. In addition, submit, together with the claim, a schedule of the items 

withheld, stating individually as to each item: (1) the type, specific subject matter, date, and 

number of pages; (2) the names, addresses, positions, and organizations of all authors and 

recipients; and (3) the specific grounds for making the privilege or similar claim. If only a 

portion of any responsive material is privileged, You must produce all non-privileged portions. 

F. Electronic Submission of Documents: Guidelines for producing ESI or digitally

imaged hard copy Documents are located in Attachment A. 

G. Sensitive Personally Identifiable Information: Unless specifically requested herein, do

not produce any Sensitive Personally Identifiable Information (“Sensitive PII”) or Sensitive 

Health Information (“SHI”) before conferring with Complaint Counsel. You must transmit 

Sensitive PII or SHI to Complaint Counsel. For purposes of these Requests, Sensitive PII 

includes: an individual’s Social Security number alone; or an individual’s name or address or 

phone number in combination with one or more of the following: date of birth, Social Security 

number, driver’s license number or other state identification number, or a foreign country 

equivalent, passport number, financial account number, credit card number, or debit card 

number. SHI includes medical records and other individually identifiable health information 

Relating To the past, present, or future physical or mental health or conditions of an individual, 

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 3/24/2021 | OSCAR NO. 601039 | Page 41 PUBLIC of 70 | PUBLIC
the provision of health care to an individual, or the past, present, or future payment for the 

provision of health care to an individual. 

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 

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 3/24/2021 | OSCAR NO. 601039 | Page 42 PUBLIC of 70 | PUBLIC
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 

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 3/24/2021 | OSCAR NO. 601039 | Page 43 PUBLIC of 70 | PUBLIC
ATTACHMENT A

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 3/24/2021 | OSCAR NO. 601039 | Page 44 PUBLIC of 70 | PUBLIC
Federal Trade Commission - Bureau of Consumer Protection 

Production Requirements

Revised July 2020

In producing information to the FTC, comply with the following requirements, unless the FTC 

agrees otherwise. If you have questions about these requirements, please contact FTC counsel 

before production.

Production Format

1. General Format: Provide load-ready electronic productions with:

a. A delimited data load file (.DAT) containing a line for every document, unique id

number for every document (DocID), metadata fields, and native file links where

applicable; and

b. A document level text file, named for the DocID, containing the text of each produced

document.

Do not produce corresponding image renderings (e.g., TIFF or JPEG) for files

in native format unless the FTC requests them. If the FTC requests

corresponding image renderings, provide an Opticon image load file (.OPT)

containing a line for every image file.

2. Electronically Stored Information (ESI): Documents stored in electronic format in the

ordinary course of business must be produced in the following format:

a. For ESI other than the categories below, submit in native format with all metadata and

either document level extracted text or Optical Character Recognition (OCR). Do not

produce corresponding image renderings (e.g., TIFF or JPEG) for files in native format

unless the FTC requests them. If the FTC requests corresponding image renderings,

they should be converted to Group IV, 300 DPI, single-page TIFF (or color JPEG

images when necessary to interpret the contents or render them intelligible.)

b. For Microsoft Excel, Access, or PowerPoint files, submit in native format with extracted

text and metadata. Data compilations in Excel spreadsheets or delimited text formats

must contain all underlying data, formulas, and algorithms without redaction.

c. For other spreadsheet, database, presentation, or multimedia formats; instant messages;

or proprietary applications, discuss the production format with FTC counsel.

3. Hard Copy Documents: Documents stored in hard copy in the ordinary course of business

must be scanned and submitted as either one multi-page pdf per document or as 300 DPI

single page TIFFs (or color JPEGs when necessary to interpret the contents or render them

intelligible), with corresponding document-level OCR text and logical document

determination in an accompanying load file.

4. Document Identification: Provide a unique DocID for each hard copy or electronic document,

consisting of a prefix and a consistent number of numerals using leading zeros. Do not use a

space to separate the prefix from numbers.

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 3/24/2021 | OSCAR NO. 601039 | Page 45 PUBLIC of 70 | PUBLIC
5. Attachments: Preserve the parent/child relationship by producing attachments as separate

documents, numbering them consecutively to the parent email, and including a reference to all

attachments.

6. Metadata Production: For each document submitted electronically, include the standard

metadata fields listed below in a standard delimited data load file. The first line of the data load

file shall include the field names. Submit date and time data in separate fields. Use these

standard Concordance delimiters in delimited data load files:

Description Symbol ASCII Character

Field Separator ¶ 20

Quote Character Þ 254

Multi Entry delimiter ® 174

<Return> Value in data ~ 126

7. De-duplication: Do not use de-duplication or email threading software without FTC approval.

8. Password-Protected Files: Remove passwords prior to production. If password removal is not

possible, provide the original and production filenames and the passwords, under separate cover.

Producing Data to the FTC

1. Prior to production, scan all data and media for viruses and confirm they are virus-free.

2. For productions smaller than 50 GB, submit data electronically using the FTC’s secure file

transfer protocol. Contact FTC counsel for instructions. The FTC cannot accept files via

Dropbox, Google Drive, OneDrive, or other third-party file transfer sites.

3. If you submit data using physical media:

a. Use only CDs, DVDs, flash drives, or hard drives. Format the media for use with

Windows 7;

b. Use data encryption to protect any Sensitive Personally Identifiable Information or

Sensitive Health Information (as defined in the instructions), and provide passwords in

advance of delivery, under separate cover; and

c. Use a courier service (e.g., Federal Express, UPS) because heightened securitymeasures

delay postal delivery.

4. Provide a transmittal letter with each production that includes:

a. Production volume name (e.g., Volume 1) and date of production;

b. Numeric DocID range of all documents in the production, and any gaps in the DocID

range; and

c. List of custodians and the DocID range for each custodian.

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CCX-A5

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 3/24/2021 | OSCAR NO. 601039 | Page 48 PUBLIC of 70 | PUBLIC
1

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 RESPONSES TO COMPLAINT 

COUNSEL’S FIRST REQUESTS FOR PRODUCTION

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

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

following Objections and RESPONSE to Complaint Counsel’s First Requests for 

Production as required by Federal Trade Commission’s Rules of Practice, 16 C.F.R. § 3.37. 

OBJECTION TO PRODUCTION OF PRIVILEGED DOCUMENTS

Respondents object to the production of privileged attorney client communications 

and privileged work product. Respondents will interpret the requests as seeking nonprivileged documents. 

RESPONSES TO REQUESTS FOR PRODUCTION

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

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

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

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

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 3/24/2021 | OSCAR NO. 601039 | Page 49 PUBLIC of 70 | PUBLIC
2

RESPONSE: Respondents object to the request for “all Documents Related to the content, 

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

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

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

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

attorney client communications and work product will not be produced.

2. Produce all Documents constituting or reflecting Communications Related

To any Identified Product with any Subject Third Party. 

RESPONSE: Respondents object to producing any privileged communications. Nonprivileged documents will be produced. 

3. Produce all Scientific and Efficacy Information Related To any of the

Subject Claims. 

RESPONSE: Documents responsive to this request will be produced.

4. Produce physical samples of each Physical Product shipped or delivered to

consumers on or after January 17, 2018. 

RESPONSE: Items responsive to this request will be produced. 

5. Produce Documents sufficient to establish the formulation of each

Identified Product including (i) the exact type and dosage of the ingredients that You 

expected each Identified Product would contain; (ii) the exact type and dosage of the 

ingredients each Identified Product actually contained when shipped to consumers; and 

(iii) testing, measurements or analysis of any sort Related To either of the foregoing.

RESPONSE: Documents responsive to this request will be produced.

6. Produce all Documents Related To whether and how an Identified

Product, or any ingredient therein, is absorbed or used by the human body after the 

Identified Product is taken orally. 

RESPONSE: Documents responsive to this request will be produced.

7. Produce Documents sufficient to establish the volume of sales of each

Identified Product, and the Net Revenue from such sales, on or after January 17, 2018. 

RESPONSE: Documents responsive to this request will be produced.

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 3/24/2021 | OSCAR NO. 601039 | Page 50 PUBLIC of 70 | PUBLIC
3

8. Produce all Documents Related To any defenses You intend to assert in

this matter. 

RESPONSE: Respondents object to this request because it is overly broad, because it 

seeks privileged documents, and because it does not identify any requested document 

with specificity. Respondents will produce non-privileged documents. 

9. Produce all Documents constituting or reflecting Communications with

Your customers on or after January 17, 2018 Related To the efficacy or lack of efficacy 

of any Identified Product.

RESPONSE: Documents responsive to this request will be produced.

10. Produce a Customer List.

RESPONSE: Documents responsive to this request will be produced.

11. Produce all Documents You rely on, or refer to, in any answer to any

Interrogatory in this matter. 

RESPONSE: Documents responsive to this request will be produced. 

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

750 N. Saint Paul St., Suite 600 

Dallas, TX 75201-3201

Telephone: (214) 382-9810

Facsimile: (214) 501-0731 

ATTORNEYS FOR RESPONDENTS 

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 3/24/2021 | OSCAR NO. 601039 | Page 51 PUBLIC of 70 | PUBLIC
4

CERTIFICATE OF SERVICE 

I certify that, pursuant to 16 C.F.R. § 3.37, 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 

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 3/24/2021 | OSCAR NO. 601039 | Page 52 PUBLIC of 70 | PUBLIC
CCX-A6

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 3/24/2021 | OSCAR NO. 601039 | Page 53 PUBLIC of 70 | PUBLIC
From: Joel Reese

To: Averill, Elizabeth

Cc: Dee Dee Carr; Cohen, Jonathan; Hall Ann; Welby, Grant

Subject: Re: Dkt. 9397 - Document production?

Date: Monday, January 25, 2021 10:12:51 AM

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>

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

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 3/24/2021 | OSCAR NO. 601039 | Page 54 PUBLIC of 70 | PUBLIC
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.

Thank you.

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

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 3/24/2021 | OSCAR NO. 601039 | Page 55 PUBLIC of 70 | PUBLIC
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@rm-firm.com>; Cohen, Jonathan

<jcohen2@ftc.gov>

Cc: Hall Ann <ann.hall@rm-firm.com>; Dee Dee Carr

<deedee.carr@rm-firm.com>; Welby, Grant

<gwelby@ftc.gov>

Subject: RE: FTC v. HRL; Discovery 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@rm-firm.com>; Cohen, Jonathan

<jcohen2@ftc.gov>; Averill, Elizabeth <eaverill@ftc.gov>

Cc: Hall Ann <ann.hall@rm-firm.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@rm-firm.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@rm-firm.com>; Jeff Kinney

<jkinney@digitalverdict.com>; Dee Dee Carr

<deedee.carr@rm-firm.com>

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 3/24/2021 | OSCAR NO. 601039 | Page 56 PUBLIC of 70 | PUBLIC
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 3/24/2021 | OSCAR NO. 601039 | Page 57 PUBLIC of 70 | PUBLIC
CCX-A7

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 3/24/2021 | OSCAR NO. 601039 | Page 58 PUBLIC of 70 | PUBLIC
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.

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 3/24/2021 | OSCAR NO. 601039 | Page 59 PUBLIC of 70 | PUBLIC
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 3/24/2021 | OSCAR NO. 601039 | Page 60 PUBLIC of 70 | 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 3/24/2021 | OSCAR NO. 601039 | Page 61 PUBLIC of 70 | 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 3/24/2021 | OSCAR NO. 601039 | Page 62 PUBLIC of 70 | 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 3/24/2021 | OSCAR NO. 601039 | Page 63 PUBLIC of 70 | 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 3/24/2021 | OSCAR NO. 601039 | Page 64 PUBLIC of 70 | 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 3/24/2021 | OSCAR NO. 601039 | Page 65 PUBLIC of 70 | 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 3/24/2021 | OSCAR NO. 601039 | Page 66 PUBLIC of 70 | 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 3/24/2021 | OSCAR NO. 601039 | Page 67 PUBLIC of 70 | PUBLIC
CCX-A8

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 3/24/2021 | OSCAR NO. 601039 | Page 68 PUBLIC of 70 | 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 3/24/2021 | OSCAR NO. 601039 | Page 69 PUBLIC of 70 | 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 3/24/2021 | OSCAR NO. 601039 | Page 70 PUBLIC of 70 | PUBLIC