PARTIES’ JOINT RULE 26(F) REPORT 1

Scott F. Kocher, OSB #015088

scott@forumlawgroup.com

FORUM LAW GROUP LLC

811 SW Naito Parkway, Suite 420

Portland, Oregon 97204

Tel: 503.445.2102

[Additional attorneys listed on signature page]

Attorneys for Plaintiff

Joshua M. Sasaki, P.C., OSB No. 964182

josh.sasaki@millernash.com

Jonathan H. Singer, OSB No. 105048

jonathan.singer@millernash.com

Miller Nash Graham & Dunn LLP

3400 U.S. Bancorp Tower

111 S.W. Fifth Avenue

Portland, Oregon 97204

Tel: 503.224.5858

Fax: 503.224.0155

[Additional attorneys listed on signature page]

Attorneys for Defendant

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

EUGENE DIVISION

LORI WAKEFIELD, individually and on 

behalf of all others similarly situated,

Plaintiff,

v.

VISALUS, INC., a Nevada corporation

Defendant.

Case No. 15-CV-01857

PARTIES’ JOINT RULE 26(f) REPORT

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PARTIES’ JOINT RULE 26(F) REPORT 2

1. The following persons participated in a Rule 26(f) conference on January 26, 

2016 by telephone:

Eve-Lynn J. Rapp of Edelson PC on behalf of Plaintiff Lori Wakefield and John S. 

Craiger and Sarah R. Anchors on behalf of Quarles & Brady LLP on behalf of Defendant 

ViSalus, Inc.

2. Initial Disclosures. 

The Parties propose that the initial disclosures required by Rule 26(a)(1) be completed by 

March 18, 2016. 

3. Discovery Plan. The Parties propose the following discovery plan: 

(a) Discovery Will be Needed on These Subjects:

Plaintiff’s Position: In this putative class action, Plaintiff alleges that Defendant 

ViSalus—a multi-level marketing company that distributes weight loss shakes and body 

transformation kits—places (or causes to be placed) thousands of unsolicited telemarketing calls 

each day to consumers across the country in violation of the Telephone Consumer Protection 

Act, 47 U.S.C. § 227 (the “TCPA”), and the Oregon Unlawful Trade Practices Act, Oregon Rev. 

Stat. § 646 (the “UTPA”). (Dkt. 36.) Plaintiff alleges that Defendant ViSalus causes these calls—

many of which are robocalls and/or made to people who have registered their telephone number 

on the National Do Not Call Registry (the “DNC Registry”)—to be placed through a legion of 

sales representatives who act as ViSalus’s agents on its behalf and are under its control. 

As such, Plaintiff anticipates taking discovery on the following non-exhaustive list of 

topics: (i) the total number and identity of individuals to whom Defendant and/or its agents made 

the unauthorized telephone calls at issue; (ii) the total number of calls Defendant and/or its 

agents made to those individuals; (iii) the methods by which Defendant and/or its agents 

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PARTIES’ JOINT RULE 26(F) REPORT 3

obtained the telephone numbers called; (iv) the equipment Defendant and/or its agents used to 

make the telephone calls; (v) any records of consent to make the telephone calls that Defendant 

and/or its agents maintain; (vi) policies and procedures maintained by Defendant and/or its 

agents related to the making of telephone calls; (vii) contracts exchanged between Defendant 

and/or its agents related to making telephone calls; (viii) communications exchanged between 

Defendant and/or its agents related to making telephone calls; (ix) records of the telephone calls 

made to Plaintiff by Defendant and/or its agents; and (x) communications exchanged between 

Defendant and/or its agents and Plaintiff, (xi) the identity of Defendant’s agents; (xii) 

Defendant’s corporate structure. 

Defendant’s Position: ViSalus is a multi-level marketing company that distributes 

various products, including a shake mix product containing soy protein. ViSalus sells its 

products through independent contractors. ViSalus’s practice and procedure is to obtain prior 

express written consent from any person who provides a telephone number that ViSalus calls

with a marketing message using an automated telephone dialing system or prerecorded message, 

in compliance with the TCPA. It is also ViSalus’s practice and procedure to not call phone 

numbers on the National Do Not Call Registry (which have been registered at least 30 days at the 

time of the call) where the person called had not entered into a purchase or transaction within the 

18 months immediately preceding the call or provided prior express consent to call. Finally, it is 

ViSalus’s practice and procedure to remove a person’s phone number from its electronic records 

when the person called requests that ViSalus stop calling. 

ViSalus anticipates discovery on the following non-exhaustive list of topics: 

communications by Plaintiff and putative class members with ViSalus; telephone records for 

Plaintiff and putative class members; purchases of ViSalus products by Plaintiff and putative 

class members; and non-privileged communications between Plaintiff and putative class 

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PARTIES’ JOINT RULE 26(F) REPORT 4

members regarding calls from ViSalus. 

(b) Disclosure or Discovery of Electronically Stored Information: 

Plaintiff will provide Defendant a proposed ESI protocol and requests that the Parties

further discuss and craft an appropriate stipulation, subject to the Court’s approval, governing: 

(1) the identification of relevant and discoverable ESI; (2) the scope of discoverable ESI to be 

preserved and produced; (3) the formats for preservation and production of ESI; (4) the 

protection of confidential and proprietary information; (5) the procedures for handling 

inadvertent production of privileged information and other privilege waiver issues under Rule 

502 of the Federal Rules of Evidence; and (6) any other relevant ESI issues that may arise. 

Defendant requests that Plaintiff and any identified putative class members comply with 

the same ESI protocol. 

(c) Claims of Privilege:

The Parties intend to submit to the Court for its review and approval a proposed 

protective order governing the production and handling of privileged, confidential, proprietary, 

and otherwise sensitive discovery materials in this matter. 

(d) Dates for Commencing and Completing Discovery:

Plaintiff’s Position: Plaintiff proposes that an eight (8) month fact discovery period (for 

both class and merits) that commences immediately after the Parties’ Rule 16 conference. 

Defendant proposes that discovery be stayed until after the Court rules on its yet-to-be file 

renewed motion to stay pending the Supreme Court’s ruling in Spokeo Inc. v. Robins, 1235 S.Ct. 

1892 (2015)—and indefinitely if the Court grants that motion—and that discovery be bifurcated 

into separate class and merits phases. Defendant’s proposal is not an efficient way to proceed in 

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PARTIES’ JOINT RULE 26(F) REPORT 5

this case. 

First, a stay in this matter is not warranted. Specifically, and as explained more fully in 

Plaintiff’s response in opposition to Defendant’s original motion to stay: (i) the decision in 

Spokeo—which is likely to be limited to the wording of the Fair Credit Reporting Act, 15 U.S.C. 

§ 1681 (“FCRA”)—is unlikely to affect any of Plaintiff’s TCPA claims, (ii) ViSalus cannot 

establish that any hardship would result to it in the absence of a stay, (iii) and granting a stay 

would result in significant harm to Plaintiff. (See Dkt. 23.) Moreover, and as has been the topic 

of various recent news outlet discussions, it is possible that the Supreme Court will not issue a 

decision in the Spokeo matter until Justice Scalia’s vacancy has been filed—an event that itself 

could take many months if not longer. 

Second, Defendant’s proposal that discovery be bifurcated into separate class and merits 

phases is inefficient and will inevitably lead to the unnecessary duplication of efforts by the 

Parties and the Court. Indeed, Plaintiffs’ claims—on behalf of herself and the putative Classes—

stem from one fundamental premise: that Defendants collectively and systematically violated the 

TCPA and UTPA by repeatedly making telemarketing robocalls without having the necessary 

consent and by calling individuals who specifically registered their numbers on the DNC List

and/or requested that Defendant’s calls stop. Thus, the information necessary for Plaintiff to 

certify the Classes will overlap substantially with the information necessary to succeed on the 

merits of both her TCPA and UTPA claims. For example, the discovery needed to establish the 

merits issue that Defendants used robocalling technology to make the calls at issue will be key to 

class certification in that Plaintiffs will need to show that Defendants’ use a standardized practice 

with respect to the Robocall Class as a whole. Likewise, discovery into the issue of consent will 

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PARTIES’ JOINT RULE 26(F) REPORT 6

be equally necessary for both certification and summary judgment briefing, as will discovery into 

Defendant’s policies for adhering to do-not-call requests. 

Accordingly, Plaintiff proposes that a more efficient approach to discovery in this matter 

is to proceed with both class and merits discovery—as to Plaintiffs and the putative class 

members—immediately upon the completion of the Rule 16(f) conference, and for a period of no 

longer than eight (8) months. Thereafter (and as further outlined in Section 4), Plaintiff will then 

move the Court for an order certifying this case as a class action and the Parties will be prepared 

to resolve any additional pretrial motions or other issues, and to proceed to trial. In this way, the 

parties and the Court will avoid what would assuredly be an unnecessarily lengthy and 

duplicative discovery process. 

Defendant’s Position: This case should be stayed pending the U.S. Supreme Court 

ruling in Spokeo, Inc. v. Robins because, as discussed in depth in Defendant’s motion to stay, the 

certified question before the Supreme Court is directly applicable here on the question of 

standing. The Court is considering whether Robins has standing to assert a claim based on a bare 

violation of a consumer protection statute, without having to demonstrate that he has a 

particularized injury as required under Article III of the Constitution. Plaintiff and the putative 

class members are in the same position as Robins—they allege that they are entitled to statutory 

damages for each phone call that allegedly violated the TCPA, without having to demonstrate 

that they suffered any particularized harm from the alleged violation. Thus if the Court finds 

Robins lacks standing, Defendant expects that the Court here would grant a motion to dismiss for 

lack of standing. Any stay would be brief, as the Court is expected to rule this summer in 

Spokeo. 

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PARTIES’ JOINT RULE 26(F) REPORT 7

If this matter does proceed to discovery, Defendant requests that discovery proceed in 

two phases: During Phase I, discovery will be directed at issues relating to class certification. 

During Phase II, after any class certification motion has been granted, discovery will be directed 

at the merits of Plaintiff’s claims and Defendant’s defenses. Bifurcation is the more economical 

and efficient strategy for handling this matter because if class certification is not granted, it 

greatly alters the scope of merits discovery, as well as settlement positions. Bifurcation directly 

serves Rule 23’s requirement that courts must, “[a]t an early practicable time after a person sues 

or is sued as a class representative determine by order whether to certify the action as a class 

action.”

Accordingly, Defendant proposes that Phase I of discovery focus on whether 

commonality exists, as well as the other class certification requirements. Topics of discovery 

would include Defendant’s policies and procedures relating to any use of an automatic telephone 

dialing system or pre-recorded voice, obtaining person’s prior express consent to call, avoiding 

unlawful calls to phone numbers on the National Do Not Call Registry, and responding to any 

called parties’ request to cease calling; Plaintiff’s and each known class member’s 

communications with ViSalus regarding requesting that ViSalus not continue to call the person’s 

phone number; Plaintiff’s and each known class member’s attempt to use the opt-out mechanism 

to opt-out of future calls; Plaintiff’s and each known class member’s registration on the National 

Do Not Call Registry; Plaintiff’s and each known class member’s purchases of ViSalus products; 

and Plaintiff’s and each known class member’s express consent to ViSalus to call the phone 

number. During this class discovery, Defendant suggests the Court allow the Plaintiff to 

conduct a Rule 30(b)(6) deposition of Defendant. Defendant would expect to depose Plaintiff 

Case 3:15-cv-01857-BR Document 44 Filed 03/02/16 Page 7 of 14
PARTIES’ JOINT RULE 26(F) REPORT 8

and each known class member. 

If class certification is granted, then during Phase II, merits discovery, Defendant expects 

the topics of discovery to include the phone calls made to Plaintiff and each class member after 

the person allegedly revoked consent to call. 

(e) Maximum Number of Interrogatories and Requests for Production:

The Parties propose that, consistent with Fed. R. Civ. P. 33, the Parties be permitted to 

propound a maximum of twenty-five (25) interrogatories each, unless otherwise stipulated or

ordered by the Court. 

Defendant proposes that the Parties be permitted to propound a maximum of twenty-five 

(25) Rule 34 requests for production each, unless otherwise stipulated or ordered by the Court. 

The Parties further propose that responses to interrogatories and requests for production of 

documents shall be due in accordance with the Federal Rules of Civil Procedure. Plaintiff 

disagrees with Defendant’s suggested limitation on the number of Rule 34 requests for 

production. 

(f) Maximum Number of Requests for Admission:

The Parties propose that they be permitted to propound no more than fifty (50) requests 

for admission, unless otherwise stipulated or ordered by the Court. The Parties further propose

that responses to requests for admission shall be due in accordance with the Federal Rules of 

Civil Procedure. 

(g) Maximum Number and Length of Depositions:

The Parties proposes that, consistent with Fed. R. Civ. P. 33, they each be permitted to 

conduct a maximum of ten (10) depositions, each of which will be limited to one (1) day of 

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PARTIES’ JOINT RULE 26(F) REPORT 9

seven (7) hours, unless otherwise stipulated or ordered by the Court. 

(h) Deadlines for Exchanging Expert Reports:

Plaintiff’s Position: Plaintiff proposes that (i) the Parties each submit their expert reports 

relating to class certification, if any, by no later than one (1) month following the close of fact 

discovery, (ii) they each depose the opposing party’s experts relating to class certification no 

later than two (2) months after the close of fact discovery, and that (iii) they disclose any rebuttal 

experts relating to class certification by no later than three (3) months following the close of fact 

discovery. Plaintiff also proposes that she disclose expert witnesses relating to merits issues no 

later than four (4) weeks following the Court’s Order on class certification and that Defendant 

discloses rebuttal expert witnesses relating to merits issues no later than eight (8) weeks 

following the Court’s order on class certification. (See Section 4 below for proposed briefing 

schedule on motion for class certification.)

Defendant’s Position: Defendant proposes that class certification experts be disclosed 

before merits discovery starts, pursuant to the schedule set forth below. Defendant requests the 

following schedule: simultaneous disclosure of expert witnesses relating to class certification 

May 19, 2016; rebuttal class certification expert disclosures June 13, 2016; completion of class 

certification expert witness depositions July 8, 2016; completion of expert discovery relating to 

class certification July 22, 2016. Defendant proposes that the expert disclosures for witnesses on 

the merits would be the same as proposed by Plaintiff. 

(i) Dates for Supplementations Under Rule 26(e): 

Pursuant to Fed. R. Civ. P. 26(e), the Parties propose that they supplement any discovery 

responses in a timely manner upon discovery of new facts. 

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PARTIES’ JOINT RULE 26(F) REPORT 10

4. Other Scheduling Matters:

The Parties’ respective positions as to the scheduling of other matters are set forth in the 

below chart: 

EVENT

PLAINTIFF’S PROPOSED 

DEADLINE

DEFENDANT’S PROPOSED 

DEADLINE (ASSUMING THE 

CASE IS NOT STAYED)

Deadline for Defendant to file a 

motion to stay

March 11, 2016 Same as Plaintiff’s proposed 

deadline

Deadline for Plaintiff to oppose 

the motion to stay

March 28, 2016 Same as Plaintiff’s proposed 

deadline

Deadline for Defendant to file a 

reply supporting the stay motion 

April 14, 2016 Same as Plaintiff’s proposed 

deadline

Deadline to Join Parties or 

Amend Pleadings

Four (4) Months after the start of 

discovery

Four (4) months after the start of 

Phase II discovery. 

Deadline to Complete Fact 

Discovery (Both Class and 

Merits)

Eight (8) months following the 

Rule 16 Conference

Phase I: Discovery Directed at 

Class Certification Issues

June 1, 2016: Class certification 

discovery closes

Phase II: Merits Discovery.

Merits discovery commences 

seven (7) days after the Court’s 

ruling on the motion for class 

certification. 

Merits discovery closes six (6) 

months after commencement of 

merits discovery.

Deadline to Disclose Expert 

Witnesses Relating to Class 

Certification

Eight (8) months following the 

Rule 16 Conference

May 19, 2016

Deadline to Depose Expert 

Witnesses Relating to Class 

Certification

Nine (9) months following the 

Rule 16 Conference

July 8, 2016

Deadline to Disclose Rebuttal 

Expert Witnesses Relating to 

Class Certification

Ten (10) months following the 

Rule 16 Conference

June 13, 2016

Deadline to Complete Expert 

Discovery Relating to Class 

Certification

Eleven (11) months following the 

Rule 16 Conference

July 22, 2016

Case 3:15-cv-01857-BR Document 44 Filed 03/02/16 Page 10 of 14
PARTIES’ JOINT RULE 26(F) REPORT 11

Plaintiff’s Deadline to File 

Motion for Class Certification

Twenty-eight (28) days following 

the close of expert discovery 

relating to class certification 

August 24, 2016

Defendant’s Deadline to File 

Opposition to Motion for Class 

Certification

Twenty-eight (28) days following 

the filing of Plaintiff’s motion for 

class certification

September 22, 2016

Plaintiff’s Deadline to File a 

Reply in Support of Motion for 

Class Certification

Twenty-one (21) days following 

the filing of opposition to 

Plaintiff’s motion for class 

certification 

October 14, 2016

Plaintiff’s Deadline to Disclose 

Expert Witnesses Relating to 

Merits Issues

Four (4) weeks following the 

Court’s Order on class 

certification

Same as Plaintiff’s proposed 

deadline

Defendant’s Deadline to 

Disclose Rebuttal Expert 

Witnesses Relating to Merits 

Issues

Eight (8) weeks following the 

Court’s Order on class 

certification 

Same as Plaintiff’s proposed 

deadline

Deadline to Complete Expert 

Discovery Relating to Merits 

Issues

Six (6) weeks following 

Defendant’s disclosure of 

rebuttal expert witnesses relating 

to merits issues

Same as Plaintiff’s proposed 

deadline

Deadline to File All Pretrial, 

Discovery, and Dispositive 

Motions

Ten (10) weeks following the 

close of expert discovery relating 

to merits issues

Same as Plaintiff’s proposed 

deadline

Deadline to File a Proposed 

Pretrial Order

Sixty (60) days before the start of 

trial

Same as Plaintiff’s proposed 

deadline

Final dates for submitting Rule 

26(a)(3) Witness Lists, 

Designations of Witnesses 

Whose Testimony will be 

Presented by Deposition, and 

Exhibit Lists:

Thirty (30) days before the start 

of trial

Same as Plaintiff’s proposed 

deadline

Final Dates to File Objections 

Under Rule 26(a)(3)

Fourteen (14) days after the 

deadline to submit final Rule 

26(a)(3) disclosures.

Same as Plaintiff’s proposed 

deadline

Pretrial Conference Thirty (30) days before the start 

of trial

Same as Plaintiff’s proposed 

deadline

Trial to begin TBD Same as Plaintiff’s proposed 

deadline

5. Matters Related to Settlement and ADR

(a) Prospects of Settlement: 

The Parties may enter settlement discussions, but do not require the assistance of a 

Case 3:15-cv-01857-BR Document 44 Filed 03/02/16 Page 11 of 14
PARTIES’ JOINT RULE 26(F) REPORT 12

mediator at this time. 

(b) Identify Any Alternative Dispute Resolution Procedure that May Enhance 

Settlement Prospects: 

The Parties believe that a settlement conference provided by the Court may enhance the 

settlement prospects of this lawsuit if and when the Parties are ready to further discuss the 

possibilities of settlement of this matter. 

6. Suggested Trial Date and Estimate of Trial Length:

The Parties propose that the Court set dates for trial at a later date. The Parties anticipate

that a trial in this matter will require five (5) court days. 

* * *

LORI WAKEFIELD, individually and on behalf 

of all others similarly situated,

Dated: March 2, 2016 By: Eve-Lynn J. Rapp

One of Plaintiff’s Attorneys

 

Rafey S. Balabanian (Admitted Pro Hac Vice)

rbalabanian@edelson.com

Benjamin H. Richman (Admitted Pro Hac Vice)

brichman@edelson.com

Eve-Lynn Rapp (Admitted Pro Hac Vice)

erapp@edelson.com

EDELSON PC

350 North LaSalle Street, Suite 1300

Chicago, Illinois 60654

Tel: 312.589.6370

Fax: 312.589.6378

Scott F. Kocher, OSB #015088

scott@forumlawgroup.com

FORUM LAW GROUP LLC

811 SW Naito Parkway, Suite 420

Portland, Oregon 97204

Tel: 503.445.2102

Case 3:15-cv-01857-BR Document 44 Filed 03/02/16 Page 12 of 14
PARTIES’ JOINT RULE 26(F) REPORT 13

Fax: 503.445.2120

VISALUS, INC.

Dated: March 2, 2016 By: John S. Craiger

One of Defendant’s Attorneys

 

Joshua M. Sasaki

josh.sasaki@millernash.com

Jonathan H. Singer

jonathan.singer@millernash.com

Miller Nash Graham & Dunn LLP

111 SW Fifth Avenue

Suite 3400

Portland, OR 97204

503-205-2410

Fax: 503-224-0155

John S. Craiger

john.craiger@quarles.com

Sarah R. Anchors

sarah.anchors@quarles.com

Quarles & Brady LLP

2 N. Central Avenue

Renaissance One

Phoenix, AZ 85004

602-229-5618

Fax: 602-229-5690

Case 3:15-cv-01857-BR Document 44 Filed 03/02/16 Page 13 of 14
Page 1 - Certificate of Service

CERTIFICATE OF SERVICE

I hereby certify that I served the foregoing Parties’ Joint Rule 26(f) Report on all 

counsel record by the following indicated method or methods on the date set forth below:

ý CM/ECF system transmission.

 ̈ E-mail. As required by Local Rule 5.2, any interrogatories, requests for 

production, or requests for admission were e-mailed in Word or WordPerfect 

format, not in PDF, unless otherwise agreed to by the parties.

 ̈ Facsimile communication device.

 ̈ First-class mail, postage prepaid.

 ̈ Hand-delivery.

 ̈ Overnight courier, delivery prepaid.

DATED this 2nd day of March, 2016.

/s/Eve-Lynn J. Rapp

Case 3:15-cv-01857-BR Document 44 Filed 03/02/16 Page 14 of 14