FM is a generator company that specializes in the sale, rental, distribution, and maintenance of generator sets. Dkt. No. 1-2 ¶ 1 (“Complaint” or “Compl.”). MTU is a company which, among other things, manufactures and sells power generation systems. Id. ¶ 7. In or around 1989, FM began distributing Katolight products. Id. ¶ 22. From 1989 to 2000, FM distributed Katolight generators to companies that eventually joined to become Verizon Wireless. Compl. ¶ 22; Dkt. No. 46 at 6.[2] In 2002, FM and Katolight, MTU's predecessor, entered into a verbal commission agreement (“VCA”). Compl. ¶¶ 2, 43. The VCA generally provided that, in consideration for FM's role in securing Katolight's contract with Verizon, for each generator that Katolight sold to Verizon, Katolight would pay $250 to FM. Compl. ¶ 43; Dkt. No. 41 at 4; Dkt. No. 46 at 5-6. The parties do not agree on whether there were any exceptions to the VCA regarding whether FM would be paid a commission by Katolight if Katolight sold a generator to Verizon. Dkt. No. 41 at 4; Dkt. No. 46 at 6.

From 2003 to 2007, Katolight paid FM commissions on the generators Katolight sold to Verizon pursuant to the VCA. Compl. ¶ 3. In April 2007, MTU Detroit Diesel, Inc. (“MTUDD”) acquired Katolight pursuant to a stock purchase agreement. Compl. ¶ 52; Dkt. No. 41 at 5; Dkt. No. 46 at 7. At the time of the purchase, MTUDD was a subsidiary of a German company, Tognum GmbH. Dkt. No. 41 at 5; Dkt. No. 46 at 7. The stock purchase agreement disclosed the VCA, its terms, and Katolight's commission payment obligations to FM. Compl. ¶ 54; Dkt. No. 41 at 5. In and around 2008, Katolight changed its name to MTU Onsite Energy Corporation (“MTU”). Dkt. No. 41 at 5, n.2. In or about August, 2011, Tognum was acquired by a 50/50 joint venture between Daimler AG and Rolls-Royce Group Plc, which was eventually renamed Rolls-Royce Power Systems. Dkt. No. 41 at 8, n.4.

According to FM, after the acquisition of Tognum by Rolls-Royce, MTU's parent organizations began influencing its relationship with FM. Dkt. No. 41 at 6-7. For example, MTU asked FM to sign a distributor agreement in the form of a Power Partner Agreement, and also a non-disclosure agreement. Dkt. No. 41 at 5-6. MTU states that it offered these agreements to FM in an attempt to formalize its business relationship with FM and to become more aligned with the policies and procedures of its new parent corporation. Dkt. No. 46 at 7.

*2 Between 2002 and 2012, FM continued to receive, pursuant to the VCA, either checks reflecting commission payments or notifications that a credit had been posted against FM's account. Dkt. No. 41 at 4-5. In 2011, MTU stopped making commission payments directly to FM and withheld the payments into 2012. Id. at 7. Specifically, in December 2011, Tognum's Chief Financial Officer handed down a directive to all subsidiaries requiring compliance with Tognum Guideline No. 5, which concerns the selection and approval of distributors, sales representatives, and consultants, agreement execution, and extension and provisions for commission payments. Id. at 8. Then, in March 2012, MTU terminated the VCA but maintained its ongoing contractual relationship with Verizon. Compl. ¶¶ 67-69; Dkt. No. 41 at 7; Dkt. No. 46 at 7.

According to FM, MTU subsequently claimed it terminated the VCA because FM did not meet Tognum Guideline No. 5. Dkt. No. 42 at 3. FM further claims that prior to the termination of the VCA, MTU placed FM on Rolls-Royce's “blacklist,” which impacted all aspects of the parties' business relationship. Id. at 3-4. Finally, FM alleges that MTU failed to pay for all generator shipments to Verizon completed after March 15, 2012 and for some commissions owed under the VCA between 2007 and 2012. Compl. ¶ 76.

On October 22, 2014, FM filed suit against MTU in Norfolk County Superior Court. Dkt. No. 1. FM alleges claims of, inter alia, breach of contract and unfair and deceptive practices under M.G.L. c. 93A, § 11. Compl.¶¶ 77-105. MTU filed a notice of removal with this Court on December 8, 2014. Dkt. No. 1. On March 7, 2016, FM moved to compel MTU's compliance with certain discovery requests and with a Rule 30(b)(6) deposition notice. Dkt. Nos. 35, 38. MTU opposed FM's motions on March 21, 2016. Dkt. Nos. 46, 47. FM filed reply briefs on April 7, 2016. Dkt. Nos. 58, 59. The Court heard oral argument on May 17, 2016.

Federal Rule of Civil Procedure 26 permits “discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1). Rule 26(b)(1) generally permits liberal discovery of relevant information. Baker v. Liggett Group, Inc., 132 F.R.D. 123, 125 (D. Mass. 1990). As the Supreme Court has instructed, because “discovery itself is designed to help define and clarify the issues,” the limits set forth in Rule 26 must be “construed broadly to encompass any matter that bears on, or that reasonably could lead to other matters that could bear on, any issue that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978). However, courts must also consider “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.” Fed. R. Civ. P. 26(b)(1).

Furthermore, a court must limit the frequency or extent of discovery if it determines that the discovery sought is (1) unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (2) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (3) the proposed discovery is outside the scope permitted by Fed. R. Civ. P. 26(b)(1). Fed. R. Civ. P. 26(b)(2)(C).

FM has served document requests pertaining to materials stored on the servers of MTU's affiliate or parent organizations. Dkt. No. 41 at 9. MTU produced some responsive materials contained within its own servers, but objects to producing documents that belong to its affiliate or parent organizations on the basis that they are not within its “possession, custody, or control” as defined by the Federal Rules of Civil Procedure.

*3 A party may serve on any other party a request, within the scope of Rule 26(b), to produce items in the responding party's possession, custody, or control. Fed. R. Civ. P. 34(a)(1). “Control is defined not only as possession, but as the legal right to obtain the documents requested upon demand.” Calzaturficio S.C.A.R.P.A. v. Fabiano Shoe Co., Inc., 201 F.R.D. 33, 38 (D. Mass. 2001) (quoting Searock v. Stripling, 736 F.2d 650, 653 (11th Cir. 1984)).

Where documents are in the possession of the corporate parent, but are sought from the subsidiary, a court must look to the specific nature of the transactional relationship between the subsidiary and the parent company when determining whether control exists. See Addamax Corp. v. Open Software Found., Inc., 148 F.R.D. 462, 467 (D. Mass. 1993). Courts have found control to exist where:

Pitney Bowes, Inc. v. Kern Intern., Inc., 239 F.R.D. 62, 66–67 (D. Conn. 2006) (internal citations omitted); see alsoAddamax, 148 F.R.D. at 465. When determining whether documents in the possession of one corporation may be deemed under the control of another corporation, courts also consider whether there has been an exchange or intermingling of directors, officers, or employees of the two corporations, whether there is any benefit or involvement by the non-party corporation in the transaction, and whether there is any involvement of the non-party corporation in the litigation. Uniden Am. Corp. v. Ericsson Inc., 181 F.R.D. 302, 306 (M.D.N.C. 1998). Thus, courts have expanded the “control” test to include not only a legal right, but also the actual ability of the subsidiary to access and obtain the requested documents. Addamax, 148 F.R.D. at 467.

Although subsidiary corporations wholly owned by the parent have no right to order the parent corporation to turn over documents, the presence of the factors listed above permit a court to draw an inference that the subsidiary has “control” over the parent company's documents. Uniden, 181 F.R.D. at 306. FM carries the burden of making a prima facie showing that MTU has “control” of the documents at issue here. Addamax, 148 F.R.D. at 465 n.3.

FM served at least fourteen requests which implicate documents that are likely stored on servers of an affiliate or parent organization of MTU. Dkt. No. 41 at 9; see also Dkt. No. 37-1 at 8-10 (documents requests 1-4, 6, 9, 12, 19-20, 23, 25-18). Those requests contain the following definition of MTU:

*4 Dkt. No. 37-1 at 6. FM argues this definition is appropriate and that MTU's control over these entities is established because (1) MTU and MTUDD are subsidiaries of Tognum/Rolls-Royce; (2) Tognum/Rolls-Royce is deeply connected to the termination of the VCA; and (3) Rolls-Royce has a financial interest in the outcome of this action. Dkt. No. 41 at 15. Further, FM argues that MTU has access to the Tognum/Rolls-Royce intranet. Id. at 16.

After carefully considering the parties arguments, this Court finds that FM has failed to set forth a prima facie showing that MTU has “control” of the requested documents. As evidence that MTU's parent and affiliate organizations were “instrumental in several decisions concerning FM's relationship with MTU,” FM points to the fact that MTU asked its distributors to sign a non-disclosure agreement which stated that the distributors would work with MTU's affiliates. Dkt. No. 41 at 5-6. FM also argues that when FM proposed changes to MTU's Power Partner Agreement, Tognum (rather than MTU) denied the request. Id. at 6. Finally, FM seeks to show intermingling of the parent and subsidiary companies by referencing correspondence between employees at MTU and employees in Germany concerning FM and Tognum Guideline No. 5. Id. at 7-8. Although these allegations suggest that MTU worked with its parent company to promulgate organizational agreements and guidelines, they do not establish that MTU and Tognum/Rolls-Royce are “alter egos” or that the two companies operate “as one.” Even if MTU subsequently claimed to have terminated the VCA because FM did not meet Tognum Guideline No. 5, this action does not show that Tognum/Rolls-Royce was “deeply connected” to MTU's decision to terminate the VCA. In fact, it does not appear that Tognum/Rolls-Royce played a significant role in any negotiations relating to the VCA or that it ever engaged in direct contact with FM regarding the VCA. To the extent that Tognum/Rolls-Royce directly communicated with MTU about FM or the VCA, FM already has access to those documents through discovery in this case.[3] Dkt. No. 46 at 12, n.5.

Moreover, unlike in Addamax, where the court held that a parent company that exercised power over the subsidiary's officers and directors acted as “one” with the subsidiary, there is no evidence in this case of intermingling of MTU and Tognum/Rolls-Royce directors or officers. See Addamax, 148 F.R.D. at 467. Indeed, MTU has submitted an affidavit from Joanna Vardas, Senior Legal Operations Manager, which states that MTU is a “completely separate and distinct company from Rolls-Royce, with separate, non-duplicative officers.” Dkt. No. 46-1 (“Vardas Aff.”) ¶ 5. Additionally, there is no evidence to suggest that MTU has the ability to secure documents from Tognum/Rolls-Royce to meet either its own business needs or to aid itself in this litigation. MTU does not have control over Tognum/Rolls-Royce's documents beyond those documents available through the Rolls-Royce intranet and Tognum/Rolls-Royce declined to produce documents for this case despite MTU's request that it do so. Id. ¶¶ 6, 8.

For these reasons, there is not sufficient information before this Court from which it can infer that MTU has an actual ability to access and obtain the documents requested by FM. Accordingly, FM has not met its burden of establishing that MTU has “control” of the documents in the custody of Tognum/Rolls-Royce or other MTU affiliates, and its request pertaining to the production of those documents is denied. The Court further notes that FM is free to pursue these documents through a subpoena issued pursuant to Rule 45 of the Federal Rules of Civil Procedure.

*5 FM served the following interrogatory request on MTU:

Dkt. No. 37-8 at 7-8.

In response, on October 6, 2015, MTU produced accounting records in the form of a database (the “Access Database”), and provided interrogatory responses on July 31, 2015 and December 22, 2015. Dkt. Nos. 37-9 at 7-8; 37-12 at 5-7; see also Dkt. No. 41 at 11-12. FM argues that the Access Database fails to provide all of the information requested; specifically, FM complains that it is unable to ascertain why MTU excluded particular generator sales from commission payments. Dkt. No. 41 at 12, 19-21. MTU denies this assertion and maintains that it has provided FM with all information requested by the interrogatory. MTU relies on Fed. R. Civ. P. 33(d) and contends that FM can use the Access Database (which contains the date of sale, startup cost, and region of each generator sold to Verizon) to determine why MTU did or did not make a commission payment to FM. Dkt. No. 46 at 18-19. Further, MTU has provided, without reference to specific generators, three general reasons why MTU would not have made a commission payment to FM for a generator. Dkt. No. 37-12 at 5-6.

Federal Rule of Civil Procedure 33(d) provides an option for a party to produce business records in lieu of answering interrogatories where the answer may be derived or ascertained from such records:

Fed. R. Civ. P. 33(d).

In order to properly invoke Rule 33(d), four criteria must be met. First, the producing party must affirm that the information sought by the interrogatory is in fact available in the specified records. In re Ethicon, Inc. Pelvic Repair Sys. Prod. Liab. Litig., No. MDL-2327, 2013 WL 8744561, at *2 (S.D.W. Va. July 26, 2013); Hillyard Enter., Inc. v. Warren Oil Co., Inc., C.A. No. 02-329, 2003 WL 25904133, at *2 (E.D.N.C. Jan. 31, 2003) (citation omitted). Second, the producing party must specify the actual documents where information will be found. Id. Third, the producing party must show that answering the interrogatory in the traditional manner would impose a burden on it. Id. Finally, the producing party must show that the burden of deriving the answer from the specified documents will be substantially the same for both parties. Id.

*6 This Court finds that MTU has not met its burden under Rule 33(d). First, MTU has not established that the information sought by the interrogatory is available in the Access Database. FM seeks the specific basis for the exclusion of commission payments for particular generators, but MTU's Access Database contains blank fields and does not tie specific generators to specific reasons for which a commission payment was excluded. See Dkt. No. 41 at 20-21, n.13. Second, although MTU has provided FM with over 2,700 entries in the Access Database, referring an interrogating party to an entire database of electronically stored information does not meet the specificity requirement of Rule 33(d). In re Ethicon, 2013 WL 8744561, at *2 (listing cases). Finally, MTU's responses to the disputed interrogatory do not establish that all information sought is in fact available in the documents referenced or that deriving the answer from the specified documents creates a burden that is substantially the same for both parties.

For these reasons, Rule 33(d) does not relieve MTU from providing FM with the specific information requested by interrogatory four or from pointing out the documents from which the answer may be discovered. Accordingly, MTU's response to interrogatory four is insufficient and must be supplemented by September 9, 2016.

On June 29, 2015, FM served Katolight's former counsel, Stinson Leonard Street, LLP with a third-party subpoena. Dkt. No. 37-32. Stinson represented Katolight in conjunction with MTU's April, 2007 acquisition of Katolight. The subpoena sought, inter alia, documents regarding the genesis of the VCA clause in the Stock Purchase Agreement. See Dkt. No. 41 at 13. On August 7, 2015, Stinson agreed to produce certain responsive documents to MTU, but not directly to FM. Dkt. No. 37-33. Stinson noted that during its review of documents responsive to the subpoena, it identified responsive documents containing communications between Katolight attorneys and MTU representatives as well as communications among Stinson attorneys that had not been shared with MTU. Id. MTU refuses to produce the Stinson documents to FM on the basis that they are protected by both attorney-client privilege and the common interest doctrine.

Under Massachusetts law,[4] the attorney-client privilege arises: “(1) [w]here legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) except the protection be waived.” Comm'r of Revenues v. Comcast Corp., 453 Mass. 293, 303 (2009) (citing 8 J. Wigmore, Evidence § 2292 (McNaugthon rev. ed. 1961)). Because the privilege runs contrary to full disclosure of relevant information, it is to be construed narrowly. Colonial Gas Co. v. Aetna Cas. & Sur. Co., 139 F.R.D. 269, 273 (D. Mass. 1991); Clair v. Clair, 464 Mass. 205, 215 (2013). It does not immunize underlying facts from discovery simply because a client disclosed those facts to an attorney. See Chambers v. Gold Medal Bakery, Inc., 464 Mass. 383, 392 (2013) (citing Upjohn Co. v. United States, 449 U.S. 383, 395-96 (1981)). The party seeking to invoke the attorney-client privilege bears the burden of showing not only that the privilege applies, but also that it has not been waived. Comcast Corp., 453 Mass. at 304; Ogden, 202 F.3d at 460.

*7 The common interest doctrine extends the attorney-client privilege to any privileged communication shared with another represented party's counsel in a confidential manner for the purpose of furthering a common legal interest. Hanover Ins. Co. v. Rapo & Jepsen Ins. Servs., Inc., 449 Mass. 609, 612 (Mass. 2007). It does not create a new or separate privilege, but prevents waiver, in certain circumstances, when otherwise privileged communications are disclosed. Id. at 614. The doctrine requires that there be a pursuit of a common legal enterprise and that the parties among whom the privileged matter is shared have a common legal, as opposed to commercial, interest. Am. Auto. Ins. Co. v. J.P. Noonan Transp., 12 Mass L. Rptr. 493, 496 (Mass. Super. Ct. 2000) (quoting Bank Brussels Lambert v. Credit Lyonnais (Suisse) S.A., 160 F.R.D. 437, 446 (S.D.N.Y. 1995)). A common interest typically entails an identical, or nearly identical, legal interest as opposed to a merely similar interest. Ogden, 202 F.3d at 461.

The common interest doctrine does not require a writing. Hanover, 449 Mass. at 618. However, the proponents of the doctrine must establish that they agreed to engage in a joint effort and to keep the shared information confidential. Ken's Foods, Inc. v. Ken's Steak House, Inc., 213 F.R.D. 89, 93 (D. Mass. 2002). There must also be in fact cooperation toward the achievement of a common objective. Ogden, 202 F.3d at 461. Confidentiality of consultations between parties to business transactions with their respective attorneys is no less essential or less common than in the litigation context, and privileged information disclosed during a merger between two unaffiliated businesses falls within the common interest doctrine. See Hanover, 449 Mass. at 617; see alsoCavallaro v. United States, 153 F. Supp. 2d 52 at 62 (D. Mass. 2001) (citing Hewlett-Packard Co. v. Bausch & Lomb, Inc., 115 F.R.D. 308, 310 (N.D. Cal. 1987)).

The documents in dispute contain communications between counsel for MTU and counsel for Katolight in and around the time of MTU's April, 2007 acquisition of Katolight.[5] See Dkt. No. 37-34. MTU maintains that the parties' legal interests were aligned because both MTU and Katolight were committed to evaluating Katolight's existing contractual obligations, assessing areas of exposure with respect to litigation, and completing a successful acquisition. Dkt. No. 46 at 14-16. This Court agrees.

An in camera review of the emails at issue show that counsel for MTU and Katolight cooperated in a joint effort to complete the acquisition. Specifically, the emails reflect communications made for the purpose of obtaining or rendering legal advice regarding the sale and acquisition of Katolight. MTU has met its burden of establishing that the parties shared a common legal interest by showing that their work was done in anticipation and/or avoidance of potential litigation and for the purpose of assisting MTU with its due diligence as they finalized the acquisition of Katolight's outstanding stock. See Dkt. No. 46 at 15; see also Morvil Tech., LLC v. Ablation Frontiers, Inc., C.A. No. 10-2088, 2012 WL 760603, *2-3 (S.D. Cal. March 8, 2012) (even where a disclosure is made for both commercial and legal purposes, this overlap does not negate the fact that two entities working toward a successful acquisition share a common legal interest). Accordingly, based on an in camera review of the email communications provided to this Court, FM's request with respect to the Stinson email communications between counsel for Katolight and MTU is denied at this time.

*8 The subject email chains submitted for in camera review contain attachments that consist of invoices and financial data regarding FM/Verizon commission history. See SLS0005851-SLS0005882. An underlying fact or document is not immunized from discovery simply because it has been disclosed to an attorney, especially where, as here, the attachments themselves do not contain legal advice or any communications between an attorney and a client. In its cover letter, MTU indicated that it had produced identical versions of the attachments, which exist separate and apart from the email chains. To the extent the attachments produced to the Court have not been produced, they must be produced to FM by September 9, 2016.

On January 28, 2016, FM served a Rule 30(b)(6) notice of deposition on MTU, which scheduled MTU's deposition in Boston, Massachusetts. Dkt. No. 39 at 13-19. MTU contests the location of the deposition and argues that the depositions of its three corporate witnesses should take place in Mankato, Minnesota—MTU's principal place of business.[6] Dkt. No. 47 at 7-13.

The deposition of a corporation by its agents and officers should ordinarily be taken at its principal place of business, but this custom is subject to modification when justice requires. Metcalf v. Bay Ferries Ltd., C.A. No. 12-40075-TSH, 2014 WL 3670786, at *1 (D. Mass. July 21, 2014). In making a determination with respect to location, a court may consider factors such as the location of counsel for both parties, the size of the defendant corporation and regularity of executive travel, the nature of the claim, and relationship of the parties. Nat'l Cmty Reinvestment Coal. v. NovaStar Fin., Inc., 604 F. Supp. 2d 26, 31-32 (D.D.C. 2009); see Smith v. Shoe Show of Rocky Mount, Inc., C.A. No. 00-30141-MAP, 2001 WL 1757184, at *2-3 (D. Mass. April 26, 2001) (also listing as factors the number of corporate representatives to be deposed and the likelihood of significant discovery disputes arising that would necessitate resolution).

The presumption that a Rule 30(b)(6) deposition should occur at the principal place of business may be overcome where circumstances exist distinguishing the case from the ordinary run of civil cases, but it is the plaintiff's burden to overcome this presumption. Planadeball v. Wyndham Vacation Ownership, C.A. No. 12-1485-JAG, 2013 WL 864612, at *2 (D.P.R. March 7, 2013). Ultimately, the court has a wide discretion in selecting the place of examination and in attaching conditions concerning the payment of expenses. Metcalf, 2014 WL 3670786, at *1(citing 8A Federal Practice and Procedure § 2112 at 526–27 (2010)).

After considering the burden associated with the travel of three individuals designated to testify on behalf of MTU, as well as all other pertinent factors, this Court finds that FM fails to meet its burden of establishing circumstances sufficient to overcome the presumption in favor of taking the deposition at the corporation's principal place of business. Accordingly, the depositions of MTU's corporate witnesses should be conducted in Mankato, Minnesota.

Topic 18 concerns “the acquisition of Tognum in 2011,” while topic 22(a) concerns the “blacklist,” including the practice and procedure of adding and removing a business partner to and from the blacklist. Dkt. No. 39 at 18. MTU refuses to designate a corporate representative with respect to these topics on the grounds that they seek testimony outside the knowledge of MTU. Dkt. No. 47 at 13-14. In support of its position, MTU argues that it was not involved in the acquisition of Tognum or in the development of the policies and procedures mandated by Rolls-Royce. Dkt. No. 47 at 13-14. MTU is not required to provide testimony regarding a matter in which it was not directly involved, but through which its parent company acquired a separate and distinct subsidiary. Accordingly, with respect to topic 18, FM's motion is denied.

*9 With respect to topic 22(a), FM has presented evidence that MTU's employees made references to a “blacklist” on which FM was placed. Dkt. No. 42 at 3-4. This is more than enough to show that MTU possesses, internally, at least some information relevant to topic 22(a). Accordingly, MTU must designate an individual who can testify about its corporate knowledge as it relates to the “blacklist.”

Both parties have requested that the Court award costs and fees incurred in connection with these motions pursuant to Fed. R. Civ. P. 37(a)(5). Dkt. Nos. 41 at 22; 42 at 12; 46 at 20; 47 at 14. Rule 37(a)(5)(C) provides that if a motion to compel is granted in part and denied in part, the court “may, after giving an opportunity to be heard, apportion the reasonable expenses for the motion.” Here, the Court has granted in part and denied in part FM's motions. Because neither side has obtained all of the relief requested, the Court denies the parties' requests for costs and attorneys' fees.

For the foregoing reasons, FM's motions to compel (Dkt. Nos. 35, 38) are granted in part and denied in part.

The District Court referred the subject motions to the undersigned Magistrate Judge on March 28, 2016. Dkt. No. 55.

When referring to the parties' pleadings and exhibits, the Court cites to the docket (ECF) page numbers rather than the page numbers in the original documents.

MTU contends that documents outside its “control” consist only of those documents that no MTU employee ever received or would otherwise be able to access. Dkt. No. 46 at 12, n.5.

In diversity cases such as this, state law determines the scope and application of the attorney-client privilege. FDIC v. Ogden Corp., 202 F.3d 454, 460 (1st Cir. 2000) (citing Fed. R. Civ. P. 501). The parties cited to both Massachusetts and federal law in their papers. At oral argument, however, they agreed that there was no practical difference in the application of state and federal law to the facts of this case.

During its review, Stinson identified a subset of responsive documents which contained internal communications regarding the acquisition. Dkt. No. 37-33 at 2. Because these communications had never been shared with MTU, Stinson stated that they were privileged and did not produce them to MTU. Id. at 2-3. Neither MTU nor FM seeks the production of these documents at this time.

FM has also suggested that it may take the depositions of two of the three corporate designees in their personal capacity. See Dkt. No. 47 at 9, n.4.