Counsel

*1 On 06/20/18, Mr. Fox filed an omnibus motion to compel (doc. # 283), along with a 4-3 page supporting memorandum. The motion raises 12 separate discovery issues. During a hearing on 06/28/18, the Court ruled on four of the issues raised (Issues Nos. 2, 3 (insofar as Mr. Fox sought the deposition of Ms. Haden), 5 and 8), and in connection with a fifth issue (Issue No. 4), agreed to review in camera a set of documents that Mr. Fox claimed MiMedx had improperly withheld on the claim of attorney-client privilege or work product doctrine (doc. # 301: 06/28/18 Order). We have since ruled on the question of whether MiMedx properly withheld those documents (doc. # 314: 07/20/18 Order).

In the 06/28/18 order, we asked for further briefing on the remaining issues raised in the motion. Those issues are now fully briefed (see doc. ## 303, 311).

Before addressing the merits of those discovery issues, we consider at the threshold MiMedx's argument that we should deny Mr. Fox's motion because it was brought long after the close of discovery, and because Mr. Fox allegedly did not fully engage in the meet and confer process before filing the motion (doc. # 303: MiMedx Resp. at 2-5). The latter argument is undeveloped as to some aspects of the motion and belied by the evidentiary record as to others, and thus provides no persuasive basis to deny the motion. As for the timing of the motion, while we agree that at least some of the issues raised by Mr. Fox could have been asserted earlier, we find that the timing of the motion does not prejudice MiMedx. As the Court made clear when Mr. Fox stated his intent to file the motion, our ruling on the motion will not be a basis to adjust any of the deadlines for expert discovery (doc. # 301: 06/28/18 Order). And, today we authorize only the additional discovery specifically required by our rulings; those rulings will not be the basis for issuing any further discovery. We therefore exercise our discretion to consider the merits of Mr. Fox's motion despite its timing.

We now turn to the remaining issues raised by Mr. Fox in the omnibus motion to compel, and our rulings on them.

Issue No. 1.

During his deposition, Parker Petit, the CEO of MiMedx, testified to his participation in the firing of Mr. Fox, and said that he “personally believe[d]” Mr. Fox and others were involved in a “well-orchestrated scheme” to “eliminate their non-compete contracts so they could go out and do what they wanted to do” (Fox Mem. at 4, citing Ex. 1 at 304). However, when asked if channel stuffing was part of the alleged scheme, Mr. Petit was instructed not to answer if “you are basing any of it on communications you got through counsel” (Id., Ex. 1 at 305). Mr. Petit followed that instruction.

Mr. Fox argues that the instruction was improper, because (1) the question did not ask Mr. Petit what information he obtained from counsel, (2) there was no expectation of confidentiality in what information he obtained from counsel, inasmuch as Mr. Petit authored press releases stating he believed Mr. Fox's claims of channel stuffing were without merit, and (3) any privilege that might have originally existed was waived. In response, MiMedx complains largely about questions Mr. Petit was asked concerning settlement (MiMedx Resp. at 5-8), which is not the subject of Mr. Fox's motion.

*2 Mr. Fox correctly asserts that the propriety of a privilege assertion should be assessed on a question-by-question basis (Fox Mem. at 6). Here, the only privilege instruction that Mr. Fox challenges in the motion is with respect to the instruction that Mr. Petit not disclose whether he believed that the charge by Mr. Fox and others of channel stuffing was part of a scheme to get out of their non-compete agreements. On that particular instruction, MiMedx offers no good argument as to why Mr. Petit on the one hand may testify to his “personal belief” that Mr. Fox and others were involved in an alleged scheme to get out of his non-compete agreement, a belief he said was grounded on “common sense” (Id., Ex. 1 at 308), but on the other hand may invoke the attorney client privilege as a shield to disclosing whether he believes that the channel stuffing allegations were a part of that scheme. We find that Mr. Petit may not do so.

However, we reject Mr. Fox's suggestion that Mr. Petit lacked an expectation of confidentiality in conversations Mr. Petit had with his attorneys about the litigation with Mr. Fox and others. We also disagree that Mr. Petit has waived the privilege by public statements he has made concerning the allegations by Mr. Fox or others with whom MiMedx has been in litigation. Mr. Fox cites to a specific press release in which Mr. Petit said that actions by Mr. Fox cast doubt on his credibility (Fox. Mem. at 7 and Ex. 2). But that press release stated that Mr. Fox's credibility should be in doubt because of his withdrawal of an allegation in this case in the face of a Rule 11 motion, and not because of any privileged communication with counsel. Mr. Fox has not pointed to any public statements in which Mr. Petit has disclosed communications with counsel.

We conclude that Mr. Petit must answer the question concerning whether he believed that channel stuffing was part of the alleged scheme he described, and that his answer to that question is not a waiver of any privilege. We further conclude that Mr. Petit must testify as to the factual basis for his answer. The questioning shall be done in a manner that does not seek to discern what information may have come from counsel and what may have come from other sources. We limit the time for the reconvened questioning to no more than ten minutes, and order that (1) it be completed by 08/15/18, and (2) it be done by remote means to limit the cost of obtaining this information.

Issue No. 3.

Mr. Fox asks that MiMedx be required (1) to re-tender a witness to testify about Topics 2, 4 and 16 of a Rule 30(b)(6) notice, and (2) to produce Alexandra O. Hagen (MiMedx's General Counsel) for deposition. We already have denied the motion insofar as Mr. Fox seeks to depose Ms. Hagen. We now turn to the request for further Rule 30(b)(6) testimony.

Mr. Fox complains that MiMedx failed to adequately prepare its Rule 30(b)(6) witness, William Taylor (MiMedx's President and COO at the relevant time) to testify about various matters concerning whom MiMedx deems a competitor (Topic 2), and communications with CPN, an entity that employed Mr. Fox for a period of time in 2017 after his termination by MiMedx (Topics 4 and 16). We have reviewed the cited testimony, and – with one exception – we disagree.

Mr. Taylor was personally involved in various of the communications with CPN, received a “debriefing” of other discussions at the time they occurred in 2017, and reviewed documents during three meetings with attorneys in preparation for his deposition (MiMedx Resp. at 11-12). Most of Mr. Fox's complaints about the sufficiency of Mr. Taylor's testimony are self-inflicted wounds.

For example, Mr. Fox complains that Mr. Taylor responded to certain questions by saying “I don't recall that,” or similar words. Mr. Fox argues that such an answer shows a lack of preparation. However, it may simply reflect Mr. Taylor's disagreement about whether something occurred. To pick one passage cited by Mr. Fox (Fox Mem. at 14), when asked whether “others at MiMedx talk[ed] to CPN about its termination of Mr. Fox,” Mr. Taylor answered that “I don't recall that.” To the extent that answer left if unclear to Mr. Fox that Mr. Taylor was saying that he did not know the answer, as opposed to saying that to his recollection that did not occur, it was incumbent on Mr. Fox's attorneys to obtain clarification at the time of the deposition. They are not entitled to reconvene the deposition months after the close of discovery in a belated attempt to do so.

*3 In addition, Mr. Fox's attorney repeatedly declined to show Mr. Taylor documents when he asked to review them in answering a question. In at least one instance, Mr. Fox's attorney said he declined to do so because he “would like the witness' memory” (MiMedx Mem. at 14). That misconceives the role of a Rule 30(b)(6) witness, who is there to testify to the knowledge of the entity – whether that information was within the personal knowledge of the witness or instead the witness acquired the information to testify as the Rule 30(b)(6) witness. Again, Mr. Fox's decision not to show the witness documents that might have allowed him to testify more fully is not a basis now to re-open the deposition.

That said, we find one area in which the preparation of Mr. Taylor may have fallen short. In testifying about whether communications between MiMedx and CPN occurred on 07/19/17 or 09/06/17, Mr. Taylor relied on his personal recollection of events at the time and documents that he reviewed to prepare for the deposition. However, Mr. Taylor conceded that not every communication with CPN may have been captured in a document. In addition, while Mr. Taylor testified that he was “debriefed” about MiMedx's communications with CPN in which he was not personally involved, those debriefings took place at or about the time the communications occurred in July or September 2017 – many months before Mr. Taylor testified as a Rule 30(b)(6) witness in April 2018. There is no evidence that Mr. Taylor took steps to refresh himself about what was in those debriefings as part of his preparation to testify as a Rule 30(b)(6) witness.

MiMedx says this is of no moment, as the other participants to any conversations with CPN on 07/19/17 or 09/06/17 (Mr. Petit and Mihir Taneja of CPN) have been deposed and testified to having no more recollection of any of those conversations than did Mr. Taylor (MiMedx Resp. at 13 and Ex. 3). However, plaintiff in reply says that two other persons were involved in those conversations: Ms. Haden from MiMedx and an additional person whose name Mr. Fox does not supply (Fox Reply at 5). We agree with MiMedx that its Rule 30(b)(6) witness was not required to consult with people at CPN to testify as to MiMedx's knowledge of those communications; but, MiMedx was obligated to explore with Ms. Haden that subject as part of the Rule 30(b)(6) preparation. Any recollection that Ms. Haden might have of conversations she participated in with CPN (a third party) would not be protected by attorney client privilege.

Therefore, on this subject, we order MiMedx to prepare a witness to testify to recollections of other MiMedx personnel involved in communications with CPN on 07/19/17 and/or 09/06/17. By 08/15/18, MiMedx shall either (1) provide a declaration by Mr. Taylor, in his capacity as a Rule 30(b)(6) witness, that (a) there is no additional testimony he can offer as to those conversations and (b) the steps he took that enabled him to provide that statement, or (2) if there is additional testimony that a MiMedx Rule 30(b)(6) witness can offer about those communications based on that preparation, re-tender a Rule 30(b)(6) witness limited to that discrete subject. Any such reconvened deposition must be completed by 08/29/18.

Issue No. 6.

Mr. Fox seeks to compel production of personnel records for nine MiMedx employees whom he identifies as “comparators.” Mr. Fox says the personnel records for these individuals would show either (1) that persons who engaged in alleged misconduct of comparable severity to that of Mr. Fox (and did not complain about alleged misconduct by MiMedx) were treated more leniently, or (2) that persons who had raised such complaints were treated as harshly as Mr. Fox was treated (Fox Mem. at 23-24).

*4 We agree that Mr. Fox has shown a sufficient basis to require production of limited personnel records concerning Jennifer Duncan, Jess Kruchoski and Luke Tornquist. He identified these three individuals as employees (a) who all were subject to corporate policies similar to the policies to which Mr. Fox was subject; (b) who all were subject to the same supervisors or decision makers with respect to personnel decisions; and (c) who all allegedly complained about channel stuffing and then were disciplined (Kruchoski and Tornquist were terminated, and Duncan resigned after receiving written discipline) (Fox Mem. at 24, 26). We reach the same conclusion as to Brad Borth, whom Mr. Fox identifies as a person who complained internally about alleged “corporate malfeasance and [was] terminated shortly thereafter” (Id. at 27). We have considered MiMedx's argument that this information is not relevant (MiMedx Resp. at 19-20), but we find that argument unpersuasive. To the extent this discovery would show a pattern of hostility and unwarranted adverse action taken against those who complain about alleged corporate misconduct, that evidence could be probative of Mr. Fox's retaliation claim.

We reach a different result as to the remaining five alleged comparators identified in Mr. Fox's memorandum. Mr. Fox offers no explanation as to why he claims Sam Ball, Steve Blocker or Lou Roselli are comparators. Mr. Fox cites Jason Mahnke as a comparator because he “admitted to breaching his obligations to MiMedx” without being fired (Fox Mem. at 26), but Mr. Fox offers no evidence as to what those obligations were or the severity of the breach. Mr. Fox alleges that another MiMedx employee was not fired although he was alleged to have violated MiMedx's anti-harassment policy (Id. at 27), but he offers no evidence that the allegations were well-founded.

In his reply, Mr. Fox seeks to cure these shortcomings as to Messrs. Ball and Mahnke by adding information that he did not provide in his original memorandum (Fox Reply at 10). We will not allow Mr. Fox to rely on information in his reply that was available to him but omitted from his original memorandum. Mr. Fox's reply also seeks to expand the list of comparators by identifying two additional alleged comparators (Jennifer (or Robyn) Scott and Tom Tierney) whom he did not raise in his original memorandum – and for whom production of personnel records was not sought in the document requests that form the basis for this part of Mr. Fox's motion to compel. As we said on the record in denying the request in Issue No. 3 to depose Ms. Haden, we will not allow this motion to compel to be a vehicle for obtaining discovery that Mr. Fox did not seek during the ample period allotted for discovery.

Thus, we order that by 08/15/18, MiMedx produce -- for Duncan, Kruchoski, Tornquist and Borth -- their performance reviews, investigations into any alleged misconduct, and documents related to discipline. We reject Mr. Fox's request (Fox Reply at 7 n.3) for additional personnel information for these four individuals, and we deny his request for information about the other alleged comparators.

Issue No. 7.

Mr. Fox seeks to compel MiMedx to produce what he refers to as “Dear Pete” letters that Mr. Borth and Mr. Tierny allegedly sent to Mr. Petit, in which they complained about various sales and accounting improprieties (Fox Mem. at 28). For the reasons we have provided in our ruling on Issue No. 6, we grant the request as to any “Dear Pete” letter from Mr. Borth and deny the motion for any such letter from Mr. Tierney. Any such letter from Mr. Borth shall be produced by 08/15/18.

Issue No. 9.

Mr. Fox seeks production of two accounts receivable reports that he sought in discovery pursuant to Document Requests Nos. 21-22: (1) a document entitled “AR Aging Summary Report as of the Effective Date 06-22-2016,” and (2) an accounts receivable aging summary report showing MiMedx's outstanding accounts receivable for AvKARE, Inc. as of December 31, 2016 (Fox Mem. at 31). Mr. Fox's lead argument (and the only one we consider) is that these reports are relevant to show the channel stuffing activities about which Mr. Fox complained. As we understand it, Mr. Fox argues that the amount and age of the receivables is relevant to his claim that MiMedx created bogus orders so that it could report inflated revenues, and that it was Mr. Fox's complaints about this “channel stuffing” that caused MiMedx to retaliate against him.

*5 MiMedx argues that the reports would not bear out Mr. Fox's theory (MiMedx Mem. at 22). But the possibility that requested discovery might not prove a theory does not mean it is irrelevant to that theory. Information requested in discovery need not be dispositive in order to be relevant.

In addition, MiMedx argues that the document requests by Mr. Fox sweep too broadly and would cover companies other than AvKARE (MiMedx Resp. at 21). But, MiMedx does not explain why discovery that might show channel stuffing as to entities other than AvKARE is irrelevant. And, on its face, Document Request No. 22 seeks information only as to AvKARE.

We therefore grant Mr. Fox's motion to compel as to Issue No. 9, and order MiMedx to produce the requested reports by 08/15/18.

Issue No. 10.

Mr. Fox asks that we order MiMedx to produce communications and documents exchanged with the SEC regarding an investigation into alleged channel stuffing, as well as various text messages relating to that investigation – which Mr. Fox sought in Document Requests Nos. 31 and 33-34. Mr. Fox argues that the information is relevant because the district judge, in overruling objections to an earlier discovery order requiring MiMedx to produce a Rule 30(b)(6) witness to testify about certain communications between MiMedx and the SEC (doc. # 263: 05/16/18 Order), stated that “discovery related to MiMedx's communications with the SEC is relevant to whether MiMedx engaged in the alleged misconduct which forms a factual predicate to Fox's” state law retaliation claim (Fox Mem. at 33-34).

In its response, MiMedx argues that the requested information is of doubtful relevance in light of the district judge's dismissal of Mr. Fox's Dodd-Frank retaliation claim (MiMedx Resp. at 23). However, MiMedx fails to explain why dismissal of the federal law retaliation claim alters the district judge's ruling that “discovery related to MiMedx's communications with the SEC” is relevant to the state law retaliation claim. That said, we are concerned about the breadth of Mr. Fox's request in two respects.

First, Mr. Fox says he needs the requested communications between the SEC and MiMedx before further deposing MiMedx's Rule 30(b)(6) witness on what he says are the “same topics addressed in Judge Shah's recent order overruling MiMedx's objections” (the 05/16/18 order). That is incorrect. Unlike the document requests, the Rule 30(b)(6) notice regarding communications with the SEC is limited in time (11/01/16 to the date of Mr. Fox's termination from CPN in the summer of 2017) and in subject matter (communications regarding Mr. Fox, Jess Kruchowski, Luke Tornquist, or AvKARE) (see doc. # 224, Ex. A: Rule 30(b)(6) notice, and doc. # 202, 03/22/18 Order (limiting the time scope of the notice)). Given that we are long past the close of discovery, that Mr. Fox's complaint about MiMedx's 03/19/18 response to Document Requests Nos. 33-34 could have been raised long ago, and that he now claims to need the information for a Rule 30(b)(6) deposition that is more narrow in scope than are the document requests, we will require MiMedx to produce responsive documents but limited in scope to the time and subject matter defined by the Rule 30(b)(6) notice as narrowed by our 03/22/18 order.

Second, we are concerned that now, months after the close of discovery, Mr. Fox asks the Court to require discovery into text messages concerning the SEC investigation among seven MiMedx employees for a nine-month period. Much earlier in the discovery process, the parties (and the Court) devoted substantial effort to addressing and defining the parameters of discovery into ESI. The time to revisit that issue long has passed; we decline now to open the subject with respect to information that Mr. Fox long ago could have sought.

*6 Accordingly, we grant Mr. Fox's motion as to Issue No. 9 with respect to Document Requests Nos. 33-34, and order that by 08/15/18, MiMedx produce responsive documents as limited by this order. We deny the request by Mr. Fox with respect to Document Request No. 31.

Issue No. 11.

Mr. Fox asks the Court to resolve a dispute that arose during the 04/25/18 deposition of Steven Blocker, formerly a MiMedx account executive and currently a MiMedx Assistant Vice President. During that deposition, Mr. Fox's counsel asked Mr. Blocker about conversations he had shortly before the deposition with MiMedx attorneys (who do not represent MiMedx in this case) about investigations or other lawsuits. MiMedx's counsel in this case instructed Mr. Blocker not to testify about any such conversations, or even to identify the attorneys with whom he spoke or whether he reviewed any documents. The parties called the Court during the deposition, at which time the Court instructed Mr. Fox's counsel to find out what Mr. Blocker knows about other investigations or lawsuits.

While MiMedx complains that Mr. Fox ignored this instruction (MiMedx Resp. at 15), that is not correct. From the testimony attached to the motion, we know that Mr. Blocker met with the unidentified attorneys on several occasions, totaling at least three to four hours (Fox Mem. Ex. 15: Blocker Dep. at 126-127); that he does not know much about the SEC or DOJ investigations other than the fact they exist and what he has seen in press releases (Id. at 130-132); and that he learned nothing about the SEC investigation from the attorneys with whom he met (Id. at 131). We also know that these attorneys did not represent Mr. Blocker (Id. at 125), and thus work product (rather than attorney client privilege) formed the basis for the instruction not to answer.

The parties spar about whether the meetings Mr. Blocker had with these other attorneys constitute work product, but Mr. Fox ignores an important point made by MiMedx that we find has merit: there is no identified relevance to testimony about what Mr. Blocker may have discussed with MiMedx's counsel in other matters. That is significant for several reasons.

First, to the extent that the attorneys shared any work product about those other matters with Mr. Blocker, that does not inevitably waive the work product protection. Unlike the case with the attorney client privilege, where disclosure to a party outside the privilege is fatal, disclosure of work product to a third party does not vitiate the work product protection unless the disclosure “substantially increases the opportunity for potential adversaries to obtain the information.” BASF Aktiengesellschaft v. Reilly Indus., Inc., 224 F.R.D. 438, 442 (S.D. Ind. 2004) (emphasis in original), quoting Vardon Golf Co., Inc. v. Karsten Mfg. Corp., 213 F.R.D. 528, 534 (N.D. Ill. 2003).

Second, we see no reason that MiMedx's other attorneys would expect that anything they disclosed to Mr. Blocker would substantially increase the opportunity for disclosure to adversaries. It is not reasonable to expect the attorneys to anticipate that Mr. Blocker, an Assistant Vice President for MiMedx, would run to one of MiMedx's adversaries to disclose information they shared with him. Nor would they have reason to expect that it would be disclosed in a deposition in this lawsuit, given that no one has articulated why anything they may have discussed about other matters would be relevant here.

*7 Third, Mr. Blocker testified that he knows nothing beyond what is available in press releases about the SEC and DOJ investigations, and did not tell the lawyers anything about the SEC investigation. Because we were provided with only portions of the deposition, we do not know if he likewise said nothing to them about the DOJ investigation; but, Mr. Fox offers no evidence that Mr. Blocker discussed that investigation with the attorneys. In these circumstances, even if the conversations were not protected by work product protection, requiring the deposition to be reconvened to pursue lines of inquiry that have not been demonstrated to be relevant would be a waste of time.

For these reasons, we deny Mr. Fox's request in Issue No. 11.

Issue No. 12.

Mr. Fox asks that MiMedx perform additional review of ESI in order to respond to a variety of discovery requests, to which MiMedx served objections on 03/19/18. Thereafter, the parties embarked on a long period of discussion to determine whether MiMedx would conduct further searches for ESI using search terms beyond those that were subject to the parties' agreement and the Court's orders earlier in the litigation. MiMedx agreed to run email searches using additional terms, which resulted in a “hit” on more than 16,500 documents. After further discussion and a narrower search, this number was reduced to either 1,030 hits (Fox Mem. at 41) or 1,080 hits (MiMedx Resp. at 25). It is unclear whether Mr. Fox seeks review and production from the universe of 16,500 hits or 1,080 hits (using the MiMedx number). However, we note that MiMedx is willing to review and produce relevant, non-privileged documents from the smaller universe (Id.). MiMedx offered the same proposal with respect to text messages (MiMedx Resp. at 25): to review and produce relevant, non-privileged texts as set out in the motion (Fox Mem. at 43). Mr. Fox did not address this subject in his reply. We find MiMedx's proposal to be reasonable given the late timing of Mr. Fox's request. We therefore order MiMedx to review this ESI and by 08/15/18, produce the relevant, non-privilege ESI and log any that are withheld based on attorney client privilege or work product protection. We will not require any further ESI searches or reviews.