membership in swingers club not (yet) disclosed in Lanham Act case

Edmondson v. Velvet Lifestyles, LLC, No. 15-24442-CIV, 2016
WL 5682591 (S.D. Fla. Oct. 3, 2016)
I don’t get to blog discovery disputes often; that this one is unresolved is frustrating, but the court asks useful questions.  “May Plaintiffs pursuing a false advertising Lanham Act
claim obtain in discovery the member list and email distribution list from a ‘unique’
and ‘private’ clothing-optional swingers’ club for ‘men and women who enjoy nudity
and sexual activity’ and who are directed to practice ‘safer sex’ at the club …?”  Maybe!
Plaintiffs are 32 professional models who alleged that
defendants “pirated and altered their images to advertise their swinger’s club
business interests on websites and social media accounts,” and put their
images/altered images “next to, or in very close proximity to, photos of
explicit, hardcore pornography which are too obscene and offensive to include
as exhibits to a publicly-filed complaint.” 
Plaintiffs sought information about defendants’ membership and email
distribution lists.  Defendants sought a
protective order, arguing that their members’ associational rights and their
own trade secrets would be threatened by disclosure.  The court sought more information before
ruling.
The parties disagreed about whether inquiries using the lists
would provide useful or even vital information. 
Ordinarily, you could survey likely swinger club customers, rather than
existing customers, though a large enough sample might be hard to get even with
an internet survey.  However, plaintiffs
sought “relevant sociographic and demographic evidence” from the lists so that
a representative sample could be constructed. They also argued that courts
routinely permit discovery of customer lists for these purposes; they sought to
reach out to customers via targeted email to see if they were confused;
customers who didn’t want to testify could seek protective orders. They also
offered to sign a confidentiality agreement to prevent misuse of the
information.
The court considered their request less pressing because it
furthered “a private agenda, not public-type goals” such as a criminal
investigation.
The judge was also uncertain about the strength of defendants’
asserted interests.  The club at issue
did have a strict confidentiality agreement, but half of the club’s members
were “not shy” about their association with the club; some club members “voluntarily
chose to self-disclose their affiliation and membership by being prominently
featured on the Club’s website.”  Nor did
the club promise its members confidentiality—it just made them promise
confidentiality to each other.
Was this information even within the permissible scope of
discovery? The rules allow discovery of “any nonprivileged matter that is
relevant to any party’s claim or defense and proportional to the needs of the
case, considering the importance of the issues at stake in the action, the
amount in controversy, the parties’ relative access to relevant information,
the parties’ resources, the importance of the discovery in resolving the
issues, and whether the burden or expense of the proposed discovery outweighs
its likely benefit. Information within this scope of discovery need not be
admissible in evidence to be discoverable.”  Proportionality requires an assessment of the marginal
utility of the discovery sought, and thus is highly related to relevance.  Since actual confusion is powerful evidence
of likely confusion, I would have thought that the baseline marginal utility
was pretty high.
So, would the requested lists be important in determining
damages (etc.) for the Lanham Act claim? 
Mere speculation as to the information’s utility won’t suffice.  The judge hearing the case initially
dismissed the Lanham Act claim sua sponte, though she offered them the opportunity
to refile.  They did, but they were thus
on notice that their claim was dubious, so the court also considered “whether
the requested discovery would be relevant if the sole claim is subject to
significant challenge.”
In theory, using targeted email surveys based on the list would
be a good idea, but the judge was dubious about the practical utility
thereof.  Respondents would be providing “relevant
demographic and sociographic characteristics” “in response to unsolicited
emails from a large law firm representing Plaintiffs who filed a lawsuit
against the club they attend to pursue their unusual, arguably-provocative,
lifestyle.”  But, the court asked, why would
anyone respond?
If the poll recipients understand
that they are not obligated to respond and further realize that responding
might cause them to be served with a deposition subpoena, then would they
likely complete and return the survey? What percentage response rate would an
expert need to receive to reach any meaningful conclusion about customer
confusion? Would members be likely to even remember whether they saw a
photograph of a model on a website before attending the Club? Would receiving a
simple online poll request generate anxiety or concern among the club members
or email recipients?
To proceed, plaintiffs would have to provide more
information, but defendants would have to disclose the number of members, the
number of people on its email marketing list, and other details about the list.  Plaintiffs, if they wished to proceed, would
have to provide more details from a survey expert showing that a survey would be
likely to work in this context.

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