On April 7, 2021, this Court entered an Order denying Movants’ motions for protective order and motions to quash the deposition subpoenas of Robert Palmisano. (ECF No. 27) Movants filed a Motion for Reconsideration/Clarification and Incorporated Memorandum of Law on April 21, 2021. (ECF No. 29) the Court issues this Order prior to full briefing, finding that no response is required for resolution of this Motion.

The purpose of a motion for reconsideration is “to correct manifest errors of law or fact or to present newly discovered evidence.” Z.K. Marine Inc. v. M/V Archigetis, 808 F. Supp. 1561, 1563 (S.D. Fla. 1992). There are “three major grounds that justify reconsideration: (1) an intervening change in controlling law; (2) the availability of new evidence; and (3) the need to correct clear error or prevent manifest injustice.” Association for Disabled Americans, Inc. v. Amoco Oil Company, 211 F.R.D. 457, 477 (S.D. Fla. 2002) (internal citations omitted). It is within the Court's discretion to reconsider its order. See Am. Home Assurance Co. v. Glenn Estess & Assoc. Inc., 763 F.2d 1237, 1238-39 (11th Cir 1985). The Court finds that Movants fail to satisfy any of the requirements for reconsideration or clarification of this Court's prior Order.

I. The Court's factual findings do not warrant reconsideration

Movants argue that the Court mischaracterized the agreement between Wright and Paragon when it stated that the “parties agreed to defer the deposition until after Paragon deposed Wright Medical's Rule 30(b)(6) representative, Patrick Fisher.” (ECF No. 29 at 5) According to Movants, the parties agreed that Paragon could re-notice Palmisano's deposition if, after deposing Wright's 30(b)(6) and 30(b)(1) witnesses and reviewing Wright's and Palmisano's documents, Paragon could not obtain discovery, and Palmisano possessed unique, firsthand knowledge. (ECF No. 29 at 2)

First, the Court finds that the facts were correctly characterized. The Court stated that the parties agreed to defer the deposition until after Paragon sought the information from Wright's Rule 30(b)(6) representative, and Paragon would re-notice the deposition if it believed that Palmisano still possessed personal, unique information. (ECF No. 27 at 2) The Court also noted that Paragon's previous document requests were futile, and Paragon already had deposed more than 25 Wright witnesses. (ECF No. 27 at 2–3, 9) Because the Rule 30(b)(6) deposition was conducted immediately before the discovery deadline, the Court found that Movants should have expected the subpoena to be re-noticed after Wright's 30(b)(6) witness was unable to answer relevant questions. (ECF No. 27 at 2–5) Accordingly, the Court's understanding of the agreement was consistent with that of the Movants: once Paragon deposed Wright's witnesses, including its Rule 30(b)(6) witness, and reviewed relevant documents, it would re-notice the deposition subpoena if it believed Palmisano had unique, personal knowledge.

*2 Even if the Court were to agree with Movants’ characterization, it is of no moment. Movants argue that the misunderstanding affected the Court's finding that eight-days’ notice was reasonable. (ECF No. 29 at 6) However, Movant's prior notice of the possibility that Paragon would re-notice Palmisano's deposition was one factor, among others, that made the timeframe reasonable. The Court also noted that the subpoena did not require the production of documents and was made promptly following Fisher's deposition. (ECF No. 27 at 4–5) Accordingly, the Court's analysis would have remained the same.

II. The Court's application of the apex doctrine does not warrant reconsideration

Under the apex doctrine, courts generally restrict the deposition of high-ranking executives unless: (1) the executive has unique, personal knowledge of relevant facts, and (2) other less intrusive means of discovery have been exhausted without success. Noveshen v. Bridgewater Assocs., LP, No. 13-61535-CIV, 2016 WL 536579, at *1 (S.D. Fla. Feb. 3, 2016).

Movants cite the Court's footnote at page seven to argue that Palmisano does not possess unique, personal knowledge. (ECF No. 29 at 7) Movants argue that even if Palmisano was speaking “off the cuff,” his statements most likely were based upon information provided by other Wright employees who were present during the earnings call. (ECF No. 29 at 6–7) Movants’ contention, however, is belied by testimony from Wright's Rule 30(b)(6) representative who, when asked whether he knew where Palmisano got the information, said “I don't know.” (ECF No. 24-2 at 26) Moreover, Movants’ primary arguments in their Motions were that Palmisano relied upon a script, and Wright's Rule 30(b)(6) representative answered all relevant questions. (ECF No. 1 at 7) (ECF No. 4 at 9–10) The evidence shows that Palmisano went off-script, and Wright's representative did not know the basis or source for those statements. (ECF No. 27 at 7) Accordingly, the Court properly founds that Palmisano may possess unique, personal knowledge about statements he made in the earnings reports.

Movants also challenge the Court's conclusion that Palmisano had unique knowledge about Wright's compensation structure. (ECF No. 29 at 7) Movants claim that the Court's conclusion was based on the erroneous assumption that Palmisano independently developed his own personal understanding. (ECF No. 29 at 7–8) According to Movants, Palmisano's knowledge was based solely upon information shared with him during meetings. (ECF No. 29 at 7)

As stated in its Order, the evidence demonstrates that Palmisano likely developed a unique understanding of the compensation structure based on his involvement during meetings and conversations with other employees. (ECF No. 27 at 8–9) Based upon the information he learned, Palmisano developed opinions that differed from others present during the meetings and from other employees. (ECF No. 27 at 8) Thus, Palmisano likely has unique knowledge that cannot be obtained through other sources.

Movants state that prong two of the apex doctrine requires two inquiries. (ECF No. 29 at 9) First, whether the opposing party sufficiently exhausted less intrusive means of discovery. Second, whether those exhaustion efforts were “without success.” Movants claim the Court applied the first half of the test but failed to analyze whether Paragon's exhaustion efforts were “without success.” (ECF No. 29 at 9) This argument is likewise incorrect.[1]

*3 The Court found that Paragon made sufficient efforts to obtain the information, and those efforts were unsuccessful. (ECF No. 27 at 9) The Court noted that Paragon's document requests were not fruitful, and Fisher was unable to answer specific questions about statements made during earnings calls. (ECF No. 27 at 9) The Court also found that Palmisano's statements contradicted testimony from other Wright witnesses. See Salter v. Upjohn, 593 F. 2d 649, 651 (5th Cir. 1979) (stating that a court should allow an apex deposition when the testimony of other witnesses contradicts statements made by the apex deponent). (ECF No. 27 at 8–9) Moreover, the Court explained that complete exhaustion was not required because the apex doctrine stems from the Court's broad discretion to control the timing of discovery. Id. (ECF No. 27 at 9) Accordingly, the Court properly exercised its discretion when it found that Paragon sufficiently exhausted less intrusive methods of discovery. See Apple Inc. v. Corellium, LLC, No. 19-81160-CV, 2020 WL 1849404, at *3 (S.D. Fla. Apr. 13, 2020) (rejecting apex doctrine when less intrusive discovery methods were not completely successful and discovery deadline was one week away); Reilly v. Chipotle Mexican Grill, Inc., No. 15-CV-23425, 2016 WL 10644064, at *6 (S.D. Fla. Sept. 26, 2016) (finding second prong satisfied despite plaintiff having taken just four individual depositions and no 30(b)(6) deposition).

III. The requested discovery on the underlying facts is relevant

Movants argue that Wright's pre-suit investigation and Wright's decision to file suit lack any relevance to the case. (ECF No. 29 at 10) Movant's claim that the difficulty of “unwinding” facts and communications should be weighed against the probative value of the information. (ECF No. 29 at 11)

The Court found that Palmisano could be questioned about the factual basis for specific factual allegations made in the Complaint. (ECF No. 4 at 5) (ECF No. 14 at 3, 14) Such information is clearly relevant to the case. Paragon may also ask about Paragon's rumored acquisition, and if so, when he became aware of that information. (ECF No. 27 at 16) That information may also lead to information that proves or disproves allegations in the Complaint. The Court finds that any burden should be minimized given the narrow scope of the topics and the instructions provided in the Court's Order.

Having carefully reviewed the Motion, the court file and applicable law, and finding no response necessary, it is hereby

ORDERED AND ADJUDGED that Movants’ Motion for Reconsideration/Clarification is DENIED.

DONE AND ORDERED this 23rd day of April, 2021 in Ft. Lauderdale, Florida.

If the Court determines that the apex deponent possesses unique, personal, non-repetitive information, and that less intrusive means of discovery were sufficiently exhausted, those exhaustion efforts were necessarily unsuccessful. Any further analysis of “success” would be duplicative.