FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 8/12/2022 | DOCUMENT NO. 605302 | Page 1 of 4 | PUBLIC

__________________________________________ 

PUBLIC 

UNITED STATES OF AMERICA 

FEDERAL TRADE COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

) 

In the Matter of ) 

) 

HomeAdvisor, Inc., a corporation, )

 d/b/a Angi Leads, ) Docket No. 9407

 d/b/a HomeAdvisor Powered By Angi, )

 ) 

Respondent. ) 

__________________________________________) 

ORDER DENYING RESPONDENT’S MOTION TO 

COMPEL DEPOSITION TESTIMONY 

I. 

On August 1, 2022, Respondent HomeAdvisor, Inc. (“Respondent” or “HomeAdvisor”) 

filed a motion to reopen and compel deposition testimony of a Federal Trade Commission 

(“FTC”) investigator, Amy Brannon-Quale (“Motion”). FTC Complaint Counsel filed an 

opposition on August 9, 2022 (“Opposition”). For the reasons set forth below, the Motion is 

DENIED. 

II. 

On April 7, 2022, Complaint Counsel filed a motion for summary decision, which 

attached declarations it obtained from 18 HomeAdvisor service professionals, homeowner 

users, and former employees (“nonparty declarants”). Complaint Counsel also produced its 

written communications with those nonparty declarants in discovery. With its motion for 

summary decision, Complaint Counsel attached a 42-paragraph declaration from Amy 

Brannon-Quale, an FTC investigator (“Brannon-Quale declaration”). The Brannon-Quale 

declaration detailed her investigative activities in this case and attached over 150 pages of 

materials collected during the course of her investigation. 

Respondent deposed the majority of the nonparty declarants following submission of 

Complaint Counsel’s motion for summary decision and the nonparty declarants testified about 

their interactions with FTC staff, including their interactions with Brannon-Quale. Respondent 

asserts that some of the nonparty declarants testified in their depositions: that they could not 

recall submitting a declaration to the FTC; that they could not remember details contained in 

their declaration; or that Brannon-Quale had drafted their declaration. 
 

 

 

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Respondent deposed Brannon-Quale on May 19, 2022. Respondent contends that 

Brannon-Quale appears to have been the primary drafter of most of the declarations in this 

action. During the deposition of Brannon-Quale, Respondent sought to question Brannon-Quale 

on her memory of third-party witnesses with whom she interacted, the substance of any 

communications with non parties, and the documents she reviewed or drafted in her 

investigative work. Complaint Counsel asserted work product objections to this line of 

questioning. 

Respondent asserts: (1) Brannon-Quale’s conversations with the nonparty declarants 

were not privileged; (2) Complaint Counsel waived its work product protections; and (3) 

Respondent has a “substantial need” for the requested material. Respondent seeks an order 

permitting the reopening of the deposition of Brannon-Quale and prohibiting Complaint 

Counsel from instructing the witness not to answer questions regarding Brannon-Quale’s and 

the FTC’s communications and interactions with the nonparty declarants. 

III. 

A. Attorney Work Product Doctrine 

The well recognized rule of Hickman v. Taylor, 329 U.S. 495, 510 (1947) protects the 

work product of lawyers from discovery unless a substantial showing of necessity or 

justification is made. Under the Commission’s rules, material “prepared in anticipation of 

litigation” may be obtained through discovery “only upon a showing that the party seeking 

discovery has substantial need of the materials in the preparation of its case and that the party is 

unable without undue hardship to obtain the substantial equivalent of the materials by other 

means. 16 C.F.R. § 3.31(c)(5). Work product protection extends to intangible work product and 

to investigators working under attorney direction and supervision. United States v. Nobles, 422 

U.S. 225, 238-39 (1975). 

The work product doctrine protects “information relevant to the evolution of an 

affidavit, including but not limited to communications with the counsel relating to the affidavit, 

prior drafts of the affidavit, and any notes made by counsel while engaging in the process of 

drafting the affidavit.” Tuttle v. Tyco Electronics Installation Servs., Inc., 2007 WL 4561530, at 

*2 (S.D. Ohio Dec. 21, 2007); Baker v. General Motors Corp., 209 F.3d 1051, 1054 (8th Cir. 

2000) (“Notes and memoranda of an attorney, or an attorney’s agent, from a witness interview 

are opinion work product entitled to almost absolute immunity.”). “[T]here seems to be no 

question” that “interview reports or attorneys’ notes” on meetings with witnesses “are within 

the class of documents ‘prepared in anticipation of litigation’ and covered by [Commission 

Rule 3.31(c)(5)].” In re General Motors Corp., 1982 WL 68290 at *109 (F.T.C. June 25, 

1982). Accordingly, Brannon-Quale’s communications and interactions with the nonparty 

declarants are protected by the work product doctrine. 

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B. Waiver 

Respondent asserts that by selectively producing Brannon-Quale’s and Complaint 

Counsel’s written communications with declarants and by allowing the declarants to testify 

about their interactions with Brannon-Quale and other FTC staff, Complaint Counsel waived 

any claim of work product protections of Brannon-Quale’s recollections of those 

communications. “[D]isclosure to an adversary waives work product protection as to items 

actually disclosed. . . . But disclosure of some documents does not destroy work product 

protection for other documents of the same character.” Pittman v. Frazer, 129 F.3d 983, 988 

(8th Cir. 1997) (citing Wright & Miller, § 2024 at 209; In re United Mine Workers of America 

Employee Benefit Plans Litig., 159 F.R.D. 307, 310-12 (D.D.C.1994) (production of documents 

protected by attorney work product doctrine resulted in waiver of privilege only as to those 

documents produced). Furthermore, waiver generally applies only to the specific materials 

disclosed and not to the broader subject matter of the information. Fed. R. Evid. 502(a) 

(Advisory Committee Notes). Submission of a declaration about ministerial tasks by a member 

of a party’s legal team does not open that individual to deposition about protected matters 

beyond the scope of the tasks described. In re Traffic Jam Events LLC, 2021 WL 3465724, at 

*3-4 (F.T.C. July 23, 2021). Accordingly, Complaint Counsel’s producing written 

communications with the nonparty declarants and allowing the nonparty declarants to testify 

about their interactions with Brannon-Quale and other FTC staff does not constitute a waiver of 

protection for Brannon-Quale’s and the FTC’s communications and interactions with the 

nonparty declarants. 

C. Substantial Need 

Respondent asserts that the information being sought is critical to testing the veracity of 

the statements contained in the nonparty witness declarations, as well as those declarants’ 

credibility and the integrity of the drafting process. Production of work product may be allowed 

“only upon a showing that the party seeking discovery has substantial need of the materials in 

the preparation of its case and that the party is unable without undue hardship to obtain the 

substantial equivalent of the materials by other means.” 16 C.F.R. § 3.31(c)(5). Where 

respondent was “capable of conducting interviews and taking depositions” of fact witnesses, it 

did not demonstrate “inability to obtain the substantial equivalent of the materials by other 

means.” In the Matter of MSC.Software Corp., 2002 WL 31433972, at *3 (May 7, 2002) 

(holding “the work product privilege has not been overcome”). 

In this case, Respondent states it has already deposed “many” of the nonparty declarants 

and “Complaint Counsel permitted each witness to testify about their communications and 

interactions with Ms. Brannon-Quale.” Motion at 1. The testimony from the nonparty 

declarants provides Respondent with the information it asserts it needs to test the veracity of 

the statements contained in their declarations. Further, a “party . . . does not demonstrate 

substantial need when it merely seeks corroborative evidence,” Baker, 209 F.3d at 1054, or to 

impeach a witness. Clemmons v. Academy for Educ. Dev., 300 F.R.D. 6, 8 (D.D.C. 2013). 

Accordingly, Respondent has not established a “substantial need” for Brannon-Quale to testify 

regarding her recollections of witness interactions. 

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D. Michael Chappell 

Chief Administrative Law Judge 

Date: August 12, 2022 

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