*1 Plaintiff Chartwell Therapeutics Licensing LLC (“Chartwell”) commenced this action on June 8, 2016, against defendant Citron Pharma LLC (“Citron”), alleging breach of contract claims in connection with an agreement to market and sell certain Doxcycline (“Doxy”) Hyclate pharmaceutical tablets and capsules (the “Product”). (Compl.[1] ¶ 5).

Currently pending before this Court are several discovery issues raised by the parties. Each is addressed separately below.

A. Motion to Compel Grassi Documents

On February 4, 2019, Citron submitted a letter motion seeking to compel production of discovery relating to the Grassi audit. Citron contends that in order to respond to Chartwell's claim that Citron refused to allow plaintiff access to its books and records in order to conduct an audit – a claim that Citron denies – Citron seeks certain discovery in an effort to prove that Chartwell “decided in bad faith not to pursue the audit despite being granted full access to Citron's books and records.” (Def.’s 2/4/19 Ltr at 2-3).[2] Moreover, Citron states that Chartwell argues that the allegedly blocked audit was a breach of Citron's obligations under the Term Sheet and was a retroactive condition precedent to Chartwell's agreement to lower the Transfer Price of Doxy and to grant Citron a $1.5 million shelf stock adjustment credit. (Id.) Citron contends that Chartwell has blocked questions during depositions and attempted to claw back certain emails, which Citron asserts are not privileged, in an effort to prevent Citron from proving that Chartwell was the party responsible for terminating the audit and frustrating Citron's efforts to show that Chartwell is responsible for the nonperformance of the condition precedent. (Id. at 3).

Specifically, Citron claims that during the deposition of Jack Goldenberg, Chartwell's attorney blocked him from answering any questions about the audit, including the hiring of Grassi, the scope of their engagement, their findings, if any, who Goldenberg spoke with at Grassi, and how many times he met with Grassi. (Id.) Also during the deposition of Yigal Rechtman, CPA, counsel attempted to claw back 10 documents marked as exhibits. (Id. at 4). Citron argues that the attorney client privilege does not apply when, as here, the accountant is copied on the documents. (Id. at 5). Plaintiff seeks to reopen the depositions of both Goldenberg and Rechtman for questioning about the Grassi audit, including the reason for not pursuing the audit, and for questioning about DG35 and Doxy Suspension. (Id. at 9-10). In addition, defendant seeks to question Rechtman on a memorandum that has been withheld on privilege grounds. (Id. at 10).

Citron also seeks a ruling that the documents Chartwell now seeks to claw back are not privileged and they may be used to question the witnesses. (Id. at 9). Citron notes that certain of the documents that Chartwell seeks to claw back were not produced inadvertently. Specifically, P0018466-68 was originally withheld as privileged and then the privilege claim was withdrawn and the document was produced. (Id. at 6). Others do not appear to be privileged because they do not seek legal advice. (Id. at 6-7) (citing P0016362-65, P0018316-17, P0018365-78). Citron further notes that Chartwell has not included in its claw back notice D-35, YR 16, Yr-17, and YR-18. (Id. at 8).

B. Analysis

*2 This is not the first occasion in which the parties have sparred over the Grassi documents. In June 2017, Citron moved to compel the production of the Grassi documents, prompting an Order from this Court dated August 4, 2017, directing plaintiff to produce a certain subcategory of Grassi documents that the Court found may be relevant to Citron's defenses. (8/4/17 Order).[3]

In February 2018, Chartwell then sought a ruling from this Court as to the propriety of its assertion of privilege as to certain Grassi documents. At that time, this Court carefully reviewed the plaintiff's privilege log and a sampling of the 10,000 pages that had been withheld but were produced for in camera review. The Court, based on its review of the sampling, found that the documents were properly withheld on grounds of either attorney client privilege or as work product. (7/17/18 Order at 6).[4] In addition, Citron was directed to return certain documents pursuant to the claw back agreement in the Stipulated Confidentiality Agreement and Protective Order. (Id.)

Citron appealed this Court's July 17, 2018 ruling to the district court, and the district court issued an order dated December 18, 2018, finding that this Court had not erred in its rulings on the Grassi documents. (12/18/18 Order at 15).[5] As noted in the district court's December 18, 2018 order, plaintiff's counsel, Hahn & Hessen, engaged Grassi to assist Hahn & Hessen in its legal representation of Chartwell in connection with the instant matter and other pending litigation. (Id. at 2 (citing Pl.’s Mem. at 5)). The district court considered and rejected Citron's argument – raised again in the current motion – that the Grassi documents were not covered by attorney client privilege because Grassi did not “ ‘serve to facilitate or translate communications’ ” between counsel and Chartwell and that the exception set forth in United States v. Kovel, 296 F.2d 918, 922 (2d Cir. 1961), had been misapplied by this Court. (12/18/18 Order at 8-10). The district court also found that there was no error in this Court's determination that the documents were also protected from disclosure under the work product doctrine and it ordered Citron to return or destroy copies of a specific document that plaintiff sought to claw back. (Id. at 10-13, 15).

Chartwell, in its February 11, 2019 letter, responding to the recent motion, contends that Citron is attempting to re-litigate issues decided by this Court in July 2018 and December 2018. (Pl.’s 2/11/19 Ltr [6] at 1).[7] Chartwell argues that most of the communications raised in Citron's letter are between Chartwell and Grassi and between Chartwell, Grassi and Hahn & Hessen, plaintiff's counsel. (Id.) The Court previously found the communications between counsel, Grassi and Chartwell are privileged. (7/17/18 Order at 5-6).

*3 Although Citron argues that the documents it seeks to have disclosed are not requesting “legal advice” and therefore are not privileged, this argument was raised before the Court in Citron's prior motion and rejected. At this time, having reviewed the parties’ respective arguments as well as the documents sought to be clawed back by Chartwell, the Court denies defendant's motion.

Moreover, to the extent that Citron is complaining that Chartwell has withheld certain Grassi documents from discovery, Chartwell claims that it provided all documents reviewed by Grassi and Grassi's work papers as Ordered by this Court. (Pl.’s 2/11/19 Ltr. at 3). In addition, to the extent that Citron believes that there was an “Interim Memorandum” that was withheld on privilege grounds, Chartwell's counsel represents that “every single document from the Grassi work-file has been produced or put on a privilege log” and that “there is no phantom ‘Intermediate Memorandum.’ ” (Id.) In light of Chartwell's representation that it has produced all documents or listed them on the privilege log, the Court denies Citron's request to order the document produced for in camera review. (See Def.’s 2/4/19 Ltr at 10).

As for the disagreements over the scope of Jack Goldenberg and Yigal Rechtman's depositions, Chartwell contends that Citron “grossly mischaracterizes” what transpired during their depositions. (Pl.’s 2/11/19 Ltr at 3). According to Chartwell's counsel, they “made it very clear to Citron before and during the deposition of Yigal Rechtman that (1) all questions relating to Grassi's audit procedures and work papers, and (2) communications by and between Grassi and Citron employees would be fair game to inquire about during his deposition.” (Id. at 3-4). Although Citron complains that the witnesses were not permitted to answer certain questions, Citron has not pointed to the specific pages where its questions were blocked. Indeed, a review of the transcript suggests that where an objection was raised by Chartwell, it was based on a legitimate concern. Chartwell argues that Goldenberg was asked and testified that counsel retained Grassi, and that Goldenberg had conversations with the accountants, but Chartwell objected to the questions about the details of those communications in order to preserve the attorney-client privilege. (Id, at 4). The Court has reviewed the deposition transcripts and, in light of the Court's prior ruling as to the Grassi documents and the validity of the assertion of privilege, the Court denies the request to reopen the Rechtman and Goldenberg depositions.

Finally, in the alternative, Citron seeks to preclude Chartwell from arguing that the audit was an unsatisfied condition precedent. (Def.’s 2/4/19 Ltr. at 10). Citron also seeks to preclude Chartwell from pursuing its claim for an audit and urges dismissal of Count V from the Complaint. (Id.) These requests, should Citron seek to pursue them, should be made in a formal motion to dismiss. At this time, the Court sees no basis on which to make a recommendation on these issues.

C. Motion to Compel Aurobindo Documents

Chartwell raises another discovery dispute that has arisen between the parties. In a letter dated February 13, 2019, Chartwell notes that during the course of the relationship between the parties, Citron sent to Chartwell 16 purchase orders for Doxy. (Pl.’s 2/13/19 Ltr at 2).[8] At least eight of these invoices reference that they are “subject to the terms and conditions set forth in the contract manufacturing agreement between Citron Pharma and AUROBINDO PHARMA LTD (“Aurobindo”) ....” (Id.) Chartwell claims that when employees of Citron were questioned during their depositions about Aurobindo, they either could not answer the questions or were instructed not to answer by counsel. (Id.) Plaintiff cites to an email from Citron's Finance Controller indicating that the agreement between Citron and Aurobindo provided for a Net Sales Share calculation akin to the way Chartwell claims their share should have been calculated and indeed, the email directs that Chartwell's share should be calculated using the “Auroshare.” (Id.)

*4 Chartwell argues that documents relating to the agreement between Citron and Aurobindo are therefore relevant and thus Chartwell served a request for production of inter alia: 1) documents relating to any agreement between Citron and Aurobindo; 2) communications between Citron and Aurobindo; and 3) documents reflecting Citron's calculation of and reporting to Aurobindo of any profit sharing agreement or net sales share agreement. (Id. at 2-3 (citing Ex. 4 to Pl.’s 2/13/19 Ltr.)). Chartwell claims that Citron has waived any objections to these demands because it failed to respond in a timely manner, and that in any event, the documents are directly relevant given the incorporation by reference of the Aurobindo agreement in Citron's own invoices. (Id. at 3).

Citron objects to the production of these documents as Chartwell's “latest attempt to harass Citron” and “launch a full-scale fishing expedition” into Citron's confidential business relationship with Aurobindo. (Def.’s 2/21/19 Ltr at 1).[9] Citron contends that Chartwell has had full discovery regarding the reference to Aurobindo, and that the employees all “uniformly testified” that the reference was a “mistake.” (Id. at 2). Citron also objects to the request to produce every profit-sharing calculation between Aurobindo and Citron. (Id. at 3). Citron contends that Chartwell has failed to demonstrate how the profit sharing formula in the Aurobindo contract is relevant to or amends the formula in the agreement between Chartwell and Citron.

The Court agrees and finds that Chartwell has failed to demonstrate how this documentation relating to Citron's agreement with another entity proves or disproves the formula used to determine the profit sharing between Chartwell and Citron.

D. Citron's Cross Motion for the Collias Confidentiality Agreement

In the February 21, 2019 letter responding to Chartwell's motion to compel production of the Aurobindo documents, Citron cross-moves to compel certain discovery from Chartwell which it claims Chartwell is withholding unless Citron produces the Aurobindo documents. (Id. at 5). Specifically, Chartwell has not responded to Citron's Requests Nos. 1, 3 and 6 of the Fifth Request for Production of Documents. (Id.) In addition, Citron claims that Chartwell has refused to produce the confidentiality agreement between Chartwell's witness, Kerry Collias, and her former employer, Harris. (Id.) According to Citron, Chartwell used this agreement to block responses to a series of questions asked of Ms. Collias at her deposition. (Id.)

In response, Chartwell states that because Citron disregarded Chartwell's third document request relating to the Aurobindo documents, Chartwell told Citron that it could not expect to receive responses if Chartwell's requests were ignored. (Pl.’s 2/26/29 Ltr at 3).[10] Chartwell further contends that the Citron Fifth Request for Documents is “duplicative, burdensome and harassing,” and that Chartwell has been searching a computer database to respond. (Id.) However, the database was decommissioned, and it has been expensive and time consuming to restore it; nevertheless, Chartwell contends that it is in the process of producing documents to which it has no objection. (Id.)

As for the Collias confidentiality agreement, Chartwell claims that at the time of the deposition, it did not have that document; only Ms. Collias had possession of the agreement. (Id. at 4). According to the February 26, 2019 letter, Chartwell has recently obtained the agreement and will provide it. (Id.) In addition, Chartwell notes that since Harris, Ms. Collias’ former employer, has been subpoenaed by Citron, the document can be obtained from Harris directly. The Court therefore Orders Chartwell to produce to Citron the documents to which it has no objection and the Collias confidentiality agreement by April 9, 2019.

E. Subpoenas

*5 Since February 27, 2019, eleven additional letters and letter motions concerning discovery disputes have been filed in this matter concerning expert discovery and subpoenas. The first set of disputes centers on a series of subpoenas sought by Citron and endorsed by this Court. (Def.’s 3/22/19 Ltr at 1).[11] Citron seeks to have the Court “issue an order compelling compliance with certain subpoenas Citron has served on Walmart, Inc. (“Walmart”) and McKesson Corp. (“McKesson”).” (Id.) Citron notes that it filed this letter motion “not because Walmart and McKesson are not cooperating with the subpoenas, but rather in light of the rapidly approaching March 31, 2019 fact discovery end date.” (Id.) Citron notes that both Walmart and McKesson “timely responded [to the subpoenas], and, for the past several weeks [Citron has] been meeting and conferring with their respective counsel to narrow the subpoenas to a non-burdensome production.” (Id.) Citron states that it believes that most of the potential issues with document production from Walmart and McKesson “would likely be resolved without Court intervention, and that the only factor constraining Citron to seek Court intervention at this time is the approaching discovery end date.” (Id.) Citron nevertheless seeks an Order to compel McKesson and Walmart to produce certain categories of documents. Counsel for McKesson and Walmart have responded to Citron's letter motion and both note that they have been working with Citron's counsel to respond to the subpoena and ask for additional time to continue to meet and confer with Citron's counsel. (See McKesson Ltr;[12] Walmart Ltr[13]).

In light of indications from all parties that they will likely be able to resolve any issues concerning the subpoenas without the intervention of this Court, and in light of the Court's Order, infra, extending the deadline to complete fact discovery, the Court finds it unnecessary to issue an Order to compel at this time.

F. Discovery Deadlines

Chartwell and Citron both ask the Court to set a date for the completion of fact discovery and for expert discovery. (Pl.’s 3/12/19 Ltr;[14] Def.’s 3/19/19 Ltr;[15] Pl.’s 3/22/19 Ltr[16]). The parties note that they have been unable to reach an agreement as to either deadline. The Court therefore sets the following discovery schedule: 1) fact discovery is extended and is to be completed by May 2, 2019; 2) initial expert reports to be exchanged 30 days after the close of fact discovery; 3) rebuttal reports to be exchanged within 30 days of the exchange of initial expert reports; and 4) expert depositions to be completed within 30 days of the exchange of expert rebuttal reports.

The Clerk is directed to send copies of this Order to the parties either electronically through the Electronic Case Filing (ECF) system or by mail.

SO ORDERED.