*1 This matter comes before the undersigned United States Magistrate Judge pursuant to a general assignment made in accordance with the provisions of 28 U.S.C. § 636, and upon Defendant Henry Schein, Inc.’s (hereinafter “Henry Schein”) Motion for Protective Order, [Docket No. 329]; Defendant Henry Schein's “Motion to Preclude or Compel and for Sanctions” (hereinafter “Motion to Compel”), [Docket No. 339]; and Defendant Henry Schein and Defendant Pace's Motion for Sanctions. [Docket No. 367]. The Court took Defendants’ Motions under advisement on the written submissions of the parties. (Order [Docket No. 388]).

For the reasons discussed herein, Defendant Henry Schein's Motion for Protective Order, [Docket No. 329], is GRANTED; Defendant Henry Schein's Motion to Compel, [Docket No. 339], is GRANTED in part and DENIED in part; and Defendants’ Motion for Sanctions, [Docket No. 367], is DENIED.[1]

I. Background

Plaintiff initiated the present case in the First Judicial District, County of Dakota, State of Minnesota. (Notice of Removal [Docket No. 1]). Plaintiff's original Complaint named only Daniele Pace as Defendant. (See, Id.). Defendant Pace removed the present case to this Federal Court on July 23, 2019. (Id.).

After being given leave of Court to do so, Plaintiff, on December 20, 2019, filed its Amended Complaint. [Docket No. 80]. Plaintiff's Amended Complaint again names its former employee Daniele Pace as a Defendant, and it adds Henry Schein, Inc., as a Defendant. Henry Schein, Inc., is Defendant Pace's new employer and one of Plaintiff's direct competitors. (Id.).

On September 14, 2020, after being given leave of Court to plead claims for punitive damages relative to certain claims in its Amended Complaint, Plaintiff filed it operative Second Amended Complaint. [Docket No. 239]. Plaintiff's Second Amended Complaint again names as Defendants Daniele Pace and Henry Schein.

According to the factual assertions in its operative Second Amended Complaint, Plaintiff distributes dental supplies, equipment, and software to dental professionals across the United States. (Second Amended Compl., [Docket No. 239], at 1). In June 2013, Plaintiff hired Defendant Pace as a “CAD/CAM” or “CEREC” Specialist responsible for “working directly with territory sales representative to provide specialized counseling and services to CAD/CAM customers.” (Id. at 1–3). Defendant Pace “worked out of Patterson's Denver location and she had responsibilities throughout Colorado and portions of Wyoming.” (Id. at 3).

*2 On February 9, 2018, during her employment with Plaintiff, Defendant Pace signed an Employment Agreement in which, Plaintiff alleges, Defendant Pace agreed to “keep in confidence and trust” all confidential and proprietary information. (Id. at 4). The Employment Agreement contained a provision that required Defendant Pace, at the time her employment was terminated, to provide her employer with all her personally owned electronic devices which “contain[ ] or could contain any Company Property,” including confidential information. (Id. at 5).[2]

On March 18, 2019, Defendant Pace terminated her employment with Plaintiff. (Second Amended Compl., [Docket No. 239], at 9). According to Plaintiff, Defendant Pace “immediately thereafter took a job with Henry Schein as Regional Sales Manager in the Denver market.” (Id.).

On March 19, 2019, Plaintiff caused a letter to be sent to Defendant Pace which Plaintiff asserts “remind[ed] her of the obligations contained in the Employee Agreement and that such obligations continued after her employment at Patterson ended.” (Id. at 10). On March 19, 2019, Plaintiff also sent a letter to Defendant Henry Schein informing it of Defendant Pace's Employment Agreement. (Id.). The March 19, 2019, letter to Defendant Henry Schein noted that “failure to abide by the Agreement w[ould] cause Patterson Dental to take appropriate legal action to protect its interest.” (March 19, 2019, Letter [Docket No. 9-3]). The March 19, 2019, letter to Defendant Henry Schein purported to contain a reproduction of the “Nonsolicitation” provision in the Employment Agreement signed by Defendant Pace, however, the “Nonsolicitation” provision provided in the letter does not match the “Nonsolicitation” provision in Defendant Pace's Employment Agreement. (See, Id.).

On May 17, 2019, Plaintiff's counsel sent another letter to Defendant Pace. (Letter [Docket No. 9-4]). The May 17, 2019, letter alleged that Defendant Pace was violating her Employment Agreement, and the letter asserted that Defendant Pace's actions “seem[ed] clearly to have been in anticipation of leaving Patterson to join Henry Schein, with the intent of using such confidential information and trade secrets in [her] employment with Henry Schein.” (Id.). The letter warned Defendant Pace that she “must immediately cease any further wrongful conduct” because she was “at risk of substantial legal liability.” (Id.). In the letter, Plaintiff's counsel opined that if Defendant Pace “immediately cease[d] any further wrongful conduct, t[ook] appropriate steps to correct and remedy prior wrongful conduct, and ensure[d] no future wrongdoing, then a solution to th[e] situation may be possible.” (Id.). Plaintiff's counsel asserted that “[a]t a minimum, Patterson requires that [Defendant Pace] sign and return the enclosed Certification, indicating that [she] will abide with [her] obligation under [her] Employment Agreement,” and that her “refusal to do so w[ould] be viewed as an indication that [she] intend[s] to violate [her] obligations to Patterson.” (Id.).

On May 17, 2019, Plaintiff's counsel also sent a similar letter to Defendant Henry Schein. (Letter [Docket No. 9-5]). The letter reiterated many of the discussions from the May 17, 2019, letter to Defendant Pace, and the letter to Defendant Henry Schein further warned Defendant Henry Schein that it and Defendant Pace were “at risk of substantial legal liability.” (Id.).

On May 28, 2019, Plaintiff's counsel sent another letter to Defendant Henry Schein indicating that Plaintiff had not received any response to its previous letters. (Letter [Docket No. 9-7]). The letter asserted that Defendant Henry Schein “had been on full notice” of Defendant Pace's alleged wrongful conduct, and “[a]ny reasonable person would conclude that Henry Schein is intentionally benefiting from and a willing participant in [Defendant] Pace's wrongful conduct, exposing itself to substantial liability for misappropriation of trade secrets, conversion, and tortious interference with contract, among other possible claims.” (Id.). In the letter, Plaintiff's counsel sought assurances that Defendant Henry Schein would engage in no further wrongful conduct. (Id.).

*3 On May 30, 2019, Marjorie Han, “Vice President and Senior Counsel, Litigation” for Defendant Henry Schein, responded to Plaintiff's counsel's letters. (Letter [Docket No. 9-8]). Ms. Han noted that she “also wr[o]te on behalf of Daniele Pace ....” (Id.). The letter denied any wrongful conduct on behalf of Defendant Henry Schein and Defendant Pace. (Id.). The letter further discussed the discrepancies between the assertion in Plaintiff's counsel's letters and Defendant Pace's actual Employment Agreement. (Id.).

On June 5, 2019, Plaintiff's counsel sent a responsive letter to Defendant Henry Schein. (Letter [Docket No.104-4]).[3] Plaintiff's counsel's letter expressed disagreement with assertions within Ms. Han's May 30, 2019, letter, and Plaintiff's counsel sought clarification as to whether or not Ms. Han was acting as Defendant Pace's counsel. (Id.).

On June 7, 2019, Defendant Henry Schein, through Ms. Han, responded to Plaintiff's June 5, 2019, letter. (Letter [Docket No. 104-5]). In that letter, Ms. Han asserted that she “represent[s] Henry Schein, Inc.... and its employees in their capacity as employees of the Company.” She further asserted that she did not represent Defendant Pace in her individual capacity. (Id.). Ms. Han wrote that Defendant Henry Schein had “hired Ms. Pace in a role different from her role as a Cerec/Cad-Cam sales representative with Patterson. Ms. Pace is not responsible, either directly or indirectly, for Cerec sales or the Cad-Cam product category, on behalf of Henry Schein.” (Id.).

On June 14, 2019, Plaintiff's counsel sent another letter to Defendant Pace. [Docket No. 9-9]. In this letter, Plaintiff's counsel asked Defendant Pace to sign a “revised Certification, which” Plaintiff's counsel characterized as “simply confirm[ing]” Defendant Pace's “commitment to abide [her] Employee Agreement.” (Letter [Docket No. 9-9]). Plaintiff's counsel also informed Defendant Pace that Plaintiff was “exercising its right under [the] Employee Agreement to require [Defendant Pace] to provide access to all [her] Mobile Devices ... so that” Plaintiff could “make a forensic image and determine whether any Company Information ... remains on any such devices.” (Id.). The letter warned Defendant Pace that if she failed to comply with Plaintiff's request by June 20, 2020, she put herself “at risk of legal action and substantial liability to” Plaintiff. (Id.).

Plaintiff's counsel also sent a letter to Defendant Henry Schein on June 14, 2019. [Docket No. 9-10].[4] In this letter, Plaintiff's counsel “urge[d]” Defendant Henry Schein to ensure Defendant Pace “signs and returns the revised Certification ... and promptly makes available her devices for forensic examination, as she is contractually obligated to do.” (Id.).

On June 24, 2019, Defendant Pace's counsel responded to Plaintiff's counsel's letter. In his letter, Defendant Pace's counsel informed Plaintiff's counsel that Defendant Pace would not provide all of her “Mobile Devices” to Plaintiff for forensic imaging because Defendant Pace's counsel found such a request to be in violation of Colorado state law. (Letter [Docket No. 9-11]). Defendant Pace's counsel also informed Plaintiff's counsel that Defendant Pace would not sign the “Certification” proffered by Plaintiff because she had no obligation to do so. (Id.). Regarding Plaintiff's request for the return of “Company Property,” Defendant Pace's counsel asserted that Defendant Pace, upon the termination of her employment, “made reasonable and good faith efforts to return all Patterson property and confidential information.” (Id.). Defendant Pace, through counsel, asserted that although she was unaware of any such property she still retained, she was “willing to look,” and therefore, she proposed a process by which a third-party vendor would look for said information in her electronic devises. (Id.).[5]

*4 The present litigation followed. Plaintiff alleges that Defendant Pace breached her Employment Agreement in a number of ways, including breaching the confidentiality provisions, failing to return Plaintiff's property, breaching the non-solicitation provision, misappropriating Plaintiff's trade secrets, retaining trade secret information without authorization, and disclosing trade secret information to solicit Plaintiff's customers. (Second Amended Compl., [Docket No. 239], at 8–21).

Based on the allegations in its Second Amended Complaint, Plaintiff raises eight causes of action. (Id. at 14–27). Specifically, Plaintiff asserts the following causes of action: Breach of Contract (Count I) against Defendant Pace; Misappropriation of Trade Secrets (Count II) against Defendants Pace and Henry Schein; Conversion (Count III) against Defendant Pace; Tortious Interference with Contractual Relationships (Count IV) against Defendants Pace and Henry Schein; Tortious Interference with Prospective Economic Advantage (Count V) against Defendants Pace and Henry Schein; Breach of Fiduciary Duty and Duty of Loyalty (Count VI) against Defendant Pace; Inducing, Aiding, and Abetting Breaches (Count VII) against Defendant Henry Schein; and Conspiracy (Count VIII) against Defendants Pace and Henry Schein. (Id.).

During the course of the present litigation, the parties have engaged in extensive discovery. As relevant to the present Order, on March 5, 2020, Defendant Henry Schein served its responses to Plaintiff's First Set of Interrogatories to Defendant Henry Schein. (Def. Henry Schein Responses [Docket No. 348-10]). Ms. Han signed the “Verification” on these Interrogatory responses. (Id.). That “Verification” is as follows:

Marjorie Han, being duly sworn, deposes and says:

I am the Vice President and Senior Counsel, Litigation, of Henry Schein, Inc., defendant in the above-captioned action. On this, the 5th day of March, 2020, after being duly sworn, state under oath that the within:

DEFENDANT HENRY SCHEIN, INC'S RESPONSES AND OBJECTIONS TO PLAINTIFF'S FIRST SET OF INTERROGATORIES TO DEFENDANT HENRY SCHEIN, INC.

Dated March 5, 2020, arc [sic] true and correct to the best of my knowledge and belief, based on the books, records and information of the company, and that I execute same for and on behalf of the company. This verification is made by me because Henry Schein, Inc. is not a natural person, and I am an officer of Henry Schein, Inc.

I declare, under penalty of perjury, that the foregoing is true and correct.

[Signature of Ms. Han]

(Def. Henry Schein's Responses [Docket No. 348-10]). On July 8, 2020, Defendant Henry Schein produced supplement responses to Plaintiff's First Set of Interrogatories which contained a substantively similar “Verification” signed by Ms. Han. (Def. Henry Schein's Supp. Responses [Docket No. 348-11]).

II. Defendant Henry Schein's Motion for Protective Order. [Docket No. 329].

On March 13, 2020, Plaintiff served several notices of depositions, including the deposition of Marjorie Han to take place on March 27, 2020. (Exhibit A [Docket No. 332-1]). Due to various then pending discovery disputes, those depositions did not take place at that time. The parties do not appear to have again discussed the deposition of Ms. Han until mid to late December 2020, when Plaintiff's counsel sent an email to Defendant Henry Schein's counsel seeking available deposition dates for a number of deponents, including Ms. Han. (See, Hammell Decl. [Docket No. 348]). In an email dated January 21, 2021, Defendant Henry Schein objected to the deposition of Ms. Han. (Email [Docket No. 348-5]). Specifically, Defendant Henry Schein objected to the deposition of Ms. Han arguing that her only role in the present action had been as in-house counsel. (Id.).

*5 On January 23, 2021, Plaintiff served an amended notice of its intent to depose Ms. Han. [Docket No. 348-6]. That notice of deposition directed Ms. Han to appear remotely via a video conferencing system on February 12, 2021. (Id.).

On February 9, 2021, Defendant Henry Schein filed the present Motion for Protective Order. [Docket No. 329]. Defendant Henry Schein's Motion seeks an Order of this Court quashing the deposition of Ms. Han. (Id.).

Defendant Henry Schein argues that Plaintiff's request to depose Ms. Han is controlled by the three-part test established by the Eighth Circuit Court of Appeals in Shelton v. American Motors Corporation, 805 F.2d 1323 (8th Cir. 1986), and it further argues that Plaintiff has failed to satisfy that test. (Def.’s Mem., [Docket No. 331], at 10–21).[6]

In opposition to the Motion, Plaintiff first argues that the Shelton “concerns do not exist” in the present case, and therefore, the Shelton test does not apply here because Ms. Han is not Defendant Henry Schein's attorney actively litigating the present case. (See, Plf.’s Mem., [Docket No. 347], at 10). Plaintiff further argues that, even if Shelton does apply in the present case, it has satisfied the Shelton test, and therefore, it should be permitted to depose Ms. Han. (See, Plf.’s Mem. [Docket No. 347]). Specifically, Plaintiff asserts that it should be permitted to depose Ms. Han because the information it seeks through her deposition “is relevant, non-privileged, and crucial to Patterson's case—and [she] is the only person who can provide it.” (Id. at 6). In support of its arguments, Plaintiff relies on Pamida, Inc. v. E.S. Original, Inc., 281 F.3d 726 (8th Cir. 2002), and Oehmke v. Medtronic, Inc., No 13-cv-2415 (MJD/JSM), 2015 WL 2242041 (Mar. 26, 2015).[7]

The plaintiff in Shelton sought to depose defendant's in-house counsel ostensibly to verify that the defendant had complied fully with the plaintiff's discovery requests. See, Shelton v. American Motors Corporation, 805 F.2d 1323 (8th Cir. 1986). Defendant's in-house counsel refused to fully comply. See, Id. The district court entered partial default judgment as a sanction for defendant's in-house counsel's refusal to answer deposition questions concerning the existence of certain documents. Id.

*6 The Eighth Circuit Court of Appeals held that it was not improper for the defendant's supervising in-house counsel to refuse to submit to a deposition concerning her awareness of certain documents that the defendant had allegedly produced. Shelton v. American Motors Corporation, 805 F.2d 1323 (8th Cir. 1986). The Eighth Circuit Court of Appeals reversed the district court decision holding that a district court should permit a deposition of opposing counsel, including “supervising ‘in-house counsel’ ” of a defendant's “Litigation Department,” only when “the party seeking to take the deposition has shown that (1) no other means exists to obtain the information than to depose opposing counsel ...; (2) the information sought is relevant and nonprivileged; and (3) the information is crucial to the preparation of the case.” Id. at 1327 (citation omitted). The Shelton Court found that the information could be obtained by other means and that the information sought was privileged. Id. at 1327–30.

Pamida, upon which Plaintiff relies, involved a retailer (Pamida) who brought suit against a manufacturer seeking indemnification for attorney fees and costs the retailer incurred in an underlying patent infringement suit in which Pamida was the defendant. Pamida, Inc. v. E.S. Original, Inc., 281 F.3d 726 (8th Cir. 2002). Pamida had the same counsel in the underlying patent infringement suit as it employed in the indemnification suit. Id. at 728. After the underlying patent infringement suit had settled, the defendant manufacturer served Pamida's attorneys “with subpoenas seeking both deposition testimony and the production of documents relating to [Pamida's counsel] representation of Pamida.” Id. at 728–29. Pamida moved to quash those subpoenas. “The magistrate judge denied the motion to quash with respect to testimony and documents concerning the patent infringement suit, but granted it with respect to testimony and documents concerning the indemnification action. The district court affirmed the magistrate judge's order.” Id. at 729 (footnote omitted).

The Eighth Circuit Court of Appeals held that “[t]he District Court properly applied Shelton to the pending indemnification case and denied [defendant] access to records involving the ... attorneys’ representation of Pamida in the on-going indemnification case. Shelton, however, does not apply to the concluded patent infringement action.” Id. at 730. The Court noted that “[t]he Shelton test was intended to protect against the ills of deposing counsel in a pending case which could potentially lead to the discourse of the attorney's litigation strategy.” Id. The Court further noted that “Shelton was not intended to provide heightened protection to attorneys who represented a client in a completed case and then also happened to represent that same client in a pending case where the information known only by the attorneys regarding the prior concluded case was crucial.” Id.

Oehmke involved a plaintiff who brought suit against her former employer alleging that her employer violated the Americans with Disabilities Act and the Minnesota Human Rights Act. Oehmke v. Medtronic, Inc., No 13-cv-2415 (MJD/JSM), 2015 WL 2242041 (Mar. 26, 2015). Prior to the initiation of the suit in Oehmke, plaintiff and her then counsel met with defendant's in-house counsel to discuss the circumstances surrounding plaintiff's work experiences, as well as, how she could transfer to a different position in the company. Id. at *1. The parties disagreed as to the content of that conversation. During the course of the litigation, plaintiff's counsel sought to depose defendant's in-house counsel about the face-to-face meeting the in-house counsel had with plaintiff. Id. at *2. The Oehmke Court indicated that Pamida suggested that Shelton applied only to depositions of “trial/litigation counsel” reasoning that “the holding in Shelton was premised on the court's determination that plaintiff was seeking to delve into the work product of defendant's in-house counsel” and that the Shelton Court specifically noted that the attorney in that case was not a “witness to the accident.” Id. at *6–7. The Court allowed the deposition noting that it found “no basis for denying Oehmke the opportunity to question [defendant's in-house counsel] about his own statement and his recollection of what Oehmke said during the meeting.” Id. at *7.

*7 While the precise extent of the information Plaintiff now seeks from Ms. Han here is unclear in the present case, it is apparent that the information presently sought pertains to the present pending litigation. (See, Plf.’s Mem. [Docket No. 347]). Although Plaintiff's descriptions of the topis vary throughout its memorandum, Plaintiff asserts that it seeks to depose Ms. Han principally on five topics:

(Plf.’s Mem., [Docket No. 347], at 7–8) (citations and footnote omitted) (alterations in original). It is clear to this Court that Plaintiff seeks detailed information regarding the handling of the present ongoing litigation.

Therefore, Plaintiff's reliance on Pamida and Oehmke is misplaced. The Pamida Court specifically noted that by bringing the indemnification action there for attorney's fees and costs Pamida directly put into issue its attorney's work in a prior concluded patent action. Pamida, Inc., 281 F.3d at 731. That is not at all the circumstance in the present case. Moreover, the Pamida Court specifically noted that Shelton applied to information related to the pending indemnification case there, and the Pamida Court's analysis applied only to the information sought regarding the previously concluded patent action. See, Id. As noted above, the record in the present case makes it fully apparent that Plaintiff is seeking information directly related to the present, ongoing litigation.[8]

*8 Moreover, despite Plaintiff's contention to the contrary, nothing in Pamida or Shelton restricts the Shelton test to depositions involving only trial or litigation counsel. In fact, Shelton involved in-house counsel. See, Shelton, 805 F.2d 1323. Further, Courts even after Pamida have continued to apply the Shelton to cases involving information sought from in-house counsel. See, e.g., PHL Variable Ins. Co. v. 2008 Christa Joseph Irrevocable Trust, No. 10-cv-3001 (PJS/TNL), 2012 WL 12896211, at *4 (D. Minn. Sept. 21, 2012) (applying the Shelton test to the notice of deposition of plaintiff's parent company's in-house counsel); Smith-Bunge v. Wisconsin Cent., Ltd., No. 15-cv-4383 (RHK/LIB), 2017 WL 11463829, at *2–5 (D. Minn. May 1, 2017); see also, Cardenas v. Prudential Ins. Co. of Am., No. 99-cv-1421 (JRT/FLN), 2003 WL 21293757, at *2 (D. Minn. May 16, 2013) (affirming the magistrate judge's order and noting that “plaintiffs have not demonstrated that deposing Sangillo and Schwimmer—Prudential's in house lawyers—would satisfy the Eighth Circuit's requirement that deposition of in-house counsel must not disclose Prudential's litigation strategy” and citing Pamida and Shelton).

Given that the information Plaintiff presently seeks directly regards actions taken by Ms. Han as an attorney during and related to the presently pending litigation, and that the Pamida Court specifically noted that the Shelton test applied to pending suits as opposed to information sought regarding concluded suits, the Shelton test controls Plaintiff's present request to depose Ms. Han. Therefore, Plaintiff must satisfy all of the Shelton factors before it is permitted to depose Ms. Han.

As noted above, under Shelton the party seeking the deposition must demonstrate that: “(1) no other means exists to obtain the information than to depose opposing counsel ...; (2) the information sought is relevant and nonprivileged; and (3) the information is crucial to the preparation of the case.” Shelton, 805 F.2d at 1327 (citation omitted).

Under the first prong of the Shelton test, Plaintiff must demonstrate that “no other means exists to obtain the information than to depose” Ms. Han. See, Id. In the present case, Plaintiff seeks a wide breadth of information that it has not precisely defined. As noted above, Plaintiff seeks to ask Ms. Han questions regarding “statements of fact she made in a non-privileged letter dated June 7, 2019”; “facts contained in HSI's interrogatory answers that she personally verified;” and whether or not “she reviewed Defendant Daniele Pace's (“Pace”) Patterson Employee agreement.” (Plf.’s Mem., [Docket No. 347], at 7–8) (citations and footnote omitted). Plaintiff also seeks to ask Ms. Han questions regarding generalized topis of unspecified “non-privileged documents of which [she] has personal knowledge and that HSI has produced” and unspecified “facts underlying HSI's counterclaims.” (Id.). Plaintiff has failed to demonstrate that the information sought from Ms. Han is available by no means other than deposing Ms. Han, and therefore, Plaintiff is not entitled to depose Ms. Han. See, Shelton, 805 F.2d at 1327.

For example, Plaintiff has failed to demonstrate why its request to ask Ms. Han questions regarding the “facts contained in [Defendant Henry Schein's] interrogatory answers” could not have been directed at Defendant Henry Schein's Rule 30(b)(6) deponent or any of the myriad other fact witnesses Plaintiff deposed. Plaintiff has simply failed to demonstrate why it could not have asked other deponents or employees the interrogatory related question it now seeks to ask Ms. Han.[9]

*9 Notable, Plaintiff does not actually allege that Ms. Han possesses any unique, independent personal factual information regarding Defendant Henry Schein's discovery responses. Instead, Plaintiff seeks to depose Ms. Han regarding those discovery responses based solely on the fact that she signed the “Verification” on behalf of Defendant Henry Schein. Plaintiff's reliance on the “Verification” ignores the text of the actual “Verification” which specifically indicates that Ms. Han is the “Vice President and Senior Counsel, Litigation” of Defendant Henry Schein and specifically provides that she is signing the “Verification” in her capacity as an officer of Defendant Henry Schein because Defendant Henry Schein is “not a natural person.” Ms. Han's signature on this “Verification” does not indicate that she necessarily possesses personal knowledge regarding any of the information contained within Defendant Henry Schein's discovery responses.

Likewise, Plaintiff has failed to demonstrate why information regarding “facts contained” in Defendant Henry Schein's discovery responses could not be obtained through related requests for production of documents or further supplemental interrogatories. For example, to the extent Plaintiff sought further information regarding the customer accounts or communications identified in Defendant Henry Schein's Interrogatory Responses, Plaintiff could have sought those underlying documents through requests for documents; there has been no showing why Ms. Han, Defendant Henry Schein's in-house counsel, is the only available source for such discovery.

Plaintiff has failed to demonstrate that the information sought from Ms. Han could not be obtained from other sources, including interrogatories, request for production, and the depositions of other persons, including Defendant Henry Schein's Rule 30(b)(6) deponent and other fact witness, non-attorney, employees. Therefore, Plaintiff is not entitled to depose Ms. Han. See, e.g., Smith-Bunge v. Wisconsin Cent., Ltd., No. 15-cv-4383 (RHK/LIB), 2017 WL 11463829, at *2–5 (D. Minn. May 1, 2017); Slater v. Liberty Mut. Ins. Co., No. 98-cv-1711, 1999 WL 46580, at *2 (E.D. Pa. Jan. 14, 1999) (applying Shelton factors and granting protective orders where counsel sought to depose opposing attorney because “any relevant information which is known to a participating attorney in a pending case and is not protected by the attorney-client privilege or work-product doctrine can be discovered by other means such as interrogatories and requests for admission or production directed to the party”); Marco Island Partners v. Oak Dev. Corp., 117 F.R.D. 418, 419–20 (N.D. Ill. 1987) (citing Shelton and denying request to depose non-trial participating opposing counsel because, since other witness could provide comprehensive accounts of the information sought from counsel, counsel's non-privileged testimony would be duplicative). Failing to satisfy this first requirement of the Shelton test alone represents sufficient good cause to grant Defendant Henry Schein's Motion for Protective Order. [Docket No. 329]. See, Smith-Bunge, 2017 WL 11463829, at *2–5; PHL Variable Ins. Co., 2012 WL 12896211, at *4 (discussing only the first prong of the Shelton test and upon finding that defendant had failed to satisfy the first prong declining to review the other prongs); Ille, et al. v. American Family Mutual Ins. Co., 3-cv-2092 (JRT/JSM), [Docket No. 49], at 15 (D. Minn. Sept. 26, 2003). The Court will, however, address whether the information sought might also be privileged.

The second prong of the Shelton test requires Plaintiff to demonstrate that “the information sought is relevant and nonprivileged.” Shelton, 805 F.2d at 1327. In reviewing the information being sought, as articulated by Plaintiff, the Court finds that any information sought that cannot be obtained from an alternate source is either privileged information or not relevant.

This Court has jurisdiction over the case presently before it under 28 U.S.C. § 1332. Federal Rule of Evidence 501 states that “in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.” Because this is a diversity case, the determination of whether attorney-client privilege applies is governed by state law. See, Union Cty. Ia. v. Piper Jaffray & Co., Inc., 525 F.3d 643, 646 (8th Cir. 2008). “Rule 501 does not, however, specify which state's privilege rules control. Under the Erie[10] doctrine, a federal court must apply the forum's conflict of laws rules.” Pritchard-Keang Nam Corp. v. Jaworski, 751 F.2d 277, 281 n.4 (8th Cir. 1984) (citations omitted).[11]

*10 Attorney-client privilege in both Minnesota and Colorado is governed by statue. See, Minn. Stat. § 595.02, subd. 1(b); Colo. Rev. Stat. § 13-90-107 (1)(b). This Court has previously determined that the attorney-client privilege law and work-product doctrine of Minnesota and Colorado did not conflict in either substance or application,[12] and therefore, the Court has applied the law of both states. The Court will continue to apply the law of both states, but it will here again cite to Colorado law for ease of analysis. See, gen., Bartholomew v. Avalon Capital Grp., Inc., 278 F.R.D. 441, 448 (D. Minn. 2011).

In Colorado, “the attorney-client privilege,” as codified in Colorado statute, “protects communications between attorney and client relating to legal advice” unless the privilege is waived. Alliance Const. Sols., Inc. v. Dep't of Corr., 54 P.3d 861, 864 (Colo. 2002). As the Supreme Court of Colorado has explained, “[i]n order to provide effective legal advice, an attorney must have a full understanding of the facts underlying his [or her] representation” and “protecting confidential communications between attorney and client ‘facilitates the full development of facts essential to proper representation of a client.’ ” Id. (quoting Gordon v. Boyles, 9 P.3d 1106, 1123 (Colo. 2000); Nat'l Farmers Union Prop. & Cas. Co. v. Dist. Court, 718 P.2d 1044, 1047 (Colo. 1986)). To effectuate this goal, “the privilege protects not only information and advice communicated from the attorney to the client, but also communication to the attorney to enable him [or her] to give sound and informed legal advice.” Alliance Const. Sols., Inc. v. Dep't of Corr., 54 P.3d 861, 864 (Colo. 2002) (collecting cases). “The privilege extends to confidential communications by or to the client in the course of gaining counsel, advice, or directions with respect to the client's rights or obligations.” Mountain States Tel. & Tel. Co, DiFede, 780 P.2d 533, 541 (Colo. 1989). The attorney-client privilege is also available to corporations. See, Alliance Const. Sols., Inc., 54 P.3d at 864.

Information can also be protected from discover under the work product doctrine. “The work product doctrine provides that materials ‘prepared in anticipation of litigation or for trial’ are discoverable ‘only upon a showing that the party seeking discovery has substantial need of the materials ... and is unable without undue hardship to obtain the substantial equivalent of the materials by other means.’ ” Cardenas v. Jerath, 180 P.3d 415, 421 (Colo. 2008) (ellipses in original) (quoting C.R.C.P 26(b)(3)). The doctrine further provides that “the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning litigation.” Id.

*11 Defendant Henry Schein maintains that any information Ms. Han possess was obtained in her capacity as Defendant Henry Schein's in-house legal counsel, and therefore, Defendant Henry Schein argues, any such information is protected by the attorney-client privilege or work product doctrine. Ms. Han submitted a sworn declaration attesting that her responsibilities are to oversee outside counsel for matters subject to litigation; to provide legal advice to Henry Schein employees in connection with various legal issues, including matters from which litigation may arise; and to perform other duties typical of “inside litigation counsel.” (Han Decl. [Docket No. 333]).

The Court's review of the record now before it, including the Plaintiff's generalized description of the topics on which it seeks to depose Ms. Han, leads it to conclude that any information Ms. Han possess—which cannot be obtained from other sources—was either obtained for the purposes of giving and receiving legal advice or the divulgement of said information would disclose Ms. Han's mental impressions, conclusions, and legal opinions regarding matters involved in the present litigation. Plaintiff has not demonstrated that Defendant Henry Schein has waived any attorney-client privilege here, nor that any exception to the work product doctrine exists.

For example, Plaintiff seeks to depose Ms. Han regarding the contents of her June 7, 2019, letter; however, Ms. Han gained the knowledge used to draft that letter in her role as Defendant Henry Schein's in-house counsel. (See, Plf.’s Mem., [Docket No. 347], at 7). In this letter, Ms. Han specifically noted that she “represent[s] Henry Schein, Inc.... and its employees in their capacity as employees of the Company,” and she signed the letter as “Vice President & Senior Counsel, Litigation,” of Defendant Henry Schein. (Letter [Docket No. 104-5]).

Plaintiff attempts to circumvent the attorney-client privilege and work product doctrine protections by asserting that it seeks to depose Ms. Han factually regarding an allegedly false statement in the letter. Specifically, Plaintiff asserts that Ms. Han wrote a false statement when she wrote that Defendant Henry Schein had “hired Ms. Pace in a role different from her role as a Cerec/Cad-Cam sales representative with Patterson. Ms. Pace is not responsible, either directly or indirectly, for Cerec sales or the Cad-Cam product category, on behalf of Henry Schein.” (Letter [Docket No. 104-5]). Regardless of the truth of this statement, Defendant Henry Schein asserts, and Plaintiff cannot refute, that Ms. Han obtained this information in her role as Defendant Henry Schein's counsel, and she conveyed this information to Plaintiff in a letter she drafted as Defendant Henry Schein's counsel. Plaintiff asserts that only Ms. Han can attest to whether or not she knew the allegedly false statement was false at the time she wrote the June 7, 2019; however, here again Plaintiff ignores the fact that Ms. Han wrote the June 7, 2019, letter in her capacity as Defendant Henry Schein's in-house counsel.

Plaintiff also seeks to depose Ms. Han about whether or not she reviewed Defendant Pace's Employment Agreement. (Plf.’s Mem., [Docket No. 347], at 2, 16). It appears that Plaintiff seeks to learn when Ms. Han first reviewed Defendant Pace's Employment Agreement. (Id. at 8 n.3). Here again, if Ms. Han reviewed the Employment Agreement she did so in her role as Defendant Henry Schein's in-house counsel. Moreover, questioning Ms. Han regarding whether or not the Employment Agreement was even in Defendant Henry Schein's possession or had been reviewed by Defendant could reveal her mental selection process regarding the documents she designated as important to Defendant Henry Schein's legal defense of threatened litigation. This is of the same nature and type of questioning Shelton found improper. See, Shelton, 805 F.2d at 1327–29.

*12 Therefore, the Court finds that, in light of the topics of inquiry as generally described by Plaintiff, the deposition of Ms. Han on its face seeks privileged information. Failing to satisfy this second requirement of the Shelton likewise represents sufficient independent good cause to grant Defendant Henry Schein's Motion for Protective Order. [Docket No. 329]. See, Smith-Bunge, 2017 WL 11463829, at *2–5.

Plaintiff's failure to satisfy either the first or second prong of the Shelton test represents good cause[13] to issue the protective order sought by Defendant Henry Schein's Motion for Protective Order. [Docket No. 329]. Accordingly, for the foregoing reasons Defendant Henry Schein's Motion for a Protective Order, [Docket No. 329], is GRANTED.

III. Defendant Henry Schein's Motion to Compel. [Docket No. 339].

As initially filed, Defendant Henry Schein's Motion to Compel, [Docket No. 339], sought an Order of this Court either precluding Plaintiff “from offering any evidence beyond what is in the record as of the date hereof, concerning any of the topics listed in the 30(b)(6) deposition notice, or in the alternative, compelling” Plaintiff “to produce its 30(b)(6) corporate representative for a deposition.” (Def. Henry Schein's Mot. [Docket No. 339]). Defendant Henry Schein's Motion also initially sought an Order compelling Plaintiff to produce certain emails concerning Sarah Mealey. (Id.). After the filing of the present Motion, Plaintiff produced the emails concerning Sarah Mealey.

The production of the emails concerning Sarah Mealey renders moot that portion of Defendant Henry Schein's Motion to Compel seeking said emails. Therefore, to the extent Defendant's Motion seeks an Order of this Court compelling Plaintiff to produce “emails concerning Sarah Mealey,” Defendant Henry Schein's Motion to Compel, [Docket No. 339], is DENIED as moot.

The sole issue remaining for this Court's consideration in Defendant Henry Schein's Motion to Compel, [Docket No. 339], is whether or not Plaintiff should be compelled to produce a Rule 30(b)(6) deponent. Although the parties dedicate some portions of their respective briefs to addressing the propriety of the deposition topics identified in the notice of Rule 30(b)(6) deposition, that issue is neither presently before the Court nor ripe for this Court's consideration. Therefore, the Court will not address it further.

A. Relevant Facts

On September 25, 2020, Defendant Henry Schein noticed the fact depositions of several individuals, including Elliot Carson. (Skoff Decl., [Docket No. 343], ¶ 4).[14] These fact depositions were originally scheduled to take place on October 13, 2020. (Id.).

On October 15, 2020, Defendant Henry Schein served Plaintiff with a Rule 30(b)(6) deposition notice with the Rule 30(b)(6) deposition to take place on November 4, 2020. (Id. ¶ 5). At the time of the Rule 30(b)(6) deposition notice, Plaintiff had not yet identified its Rule 30(b)(6) designee. On December 7, 2020, Plaintiff served its responses and objections to the Rule 30(b)(6) deposition notice. (Id. ¶ 6).[15]

*13 Thereafter, the parties continued to discuss the scheduling of the various depositions in the present case. (Id. ¶ 7). On January 13, 2021, Plaintiff's counsel informed Defendant's counsel that Elliot Carson was available for his fact deposition on February 2, 2021. (Id.). That same day, on January 13, 2021, Defendant Henry Schein re-noticed Mr. Carson's fact deposition for February 2, 2021. (Exhibit C [Docket No. 343-3]).

On January 24, 2021, Plaintiff designated Mr. Carson as its Rule 30(b)(6) designee. (Exhibit D [Docket No. 343-4]). In the email designating Mr. Carson as the Rule 30(b)(6) deponent, Plaintiff's counsel purported to inform Defendant Henry Schein's counsel that “[i]nasmuch as Mr. Carson is already scheduled for deposition on February 2, you can pose your 30(b)(6) questions that same day.” (Exhibit D [Docket No. 343-4]).

On February 1, 2021, Defendant Henry Schein's counsel responded to Plaintiff's counsel's January 24, 2021, email. Defendant Henry Schein's counsel wrote that Mr. Carson had been noticed for a fact deposition on February 2, 2021, and Defendant Henry Schein would “proceed with his deposition in that capacity at that time.” (Exhibit E [Docket No. 343-5]). Defendant Henry Schein specifically “reserved the full time allotted to” it under the Federal Rules of Civil Procedure for the deposition of Mr. Carson in his capacity as a fact witness. (Id.). Defendant Henry Schein's counsel also noted that while it was possible that “interspersing some of [the] 30(b)(6) questions during [Mr. Carson's] fact deposition,” Defendant Henry Schein could not “commit to do so in advance.” (Id.). Defendant Henry Schein also specifically reserved the full time allotted to it under the Federal Rules of Civil Procedure for the Rule 30(b)(6) deposition. (Id.).

Mr. Carson's previously noticed fact deposition took place remotely on February 2, 2021, through a video conference platform. (Skoff Decl., [Docket No. 343], ¶ 10). Mr. Carson's deposition began at 8:08 a.m. and concluded at 5:07 p.m. for a total of nine hours, including seven hours on the record. (Id. ¶¶ 10–11).[16] Defendant Henry Schein's counsel asserts that, during Mr. Carson's deposition, Defendant's counsel “offered to intersperse some 30(b)(6) questions with the witness,” but Plaintiff's counsel “suggested Henry Schein finish with the [fact] deposition of Mr. Carson as an individual first, before moving to the 30(b)(6) portion, so as to maintain a cleaner record.” (Id. ¶ 11).

At the 5:07 p.m. conclusion of Mr. Carson's fact deposition, Plaintiff's counsel informed Defendant Henry Schein's counsel that both he and Mr. Carson were “ready to proceed” with Mr. Carson's Rule 30(b)(6) deposition. (Carson Depo., [Docket No. 344], at 300:15–303:7). Defendant Henry Schein's counsel indicated that Defendant Henry Schein would not begin a Rule 30(b)(6) deposition of a deponent after counsel had deposed that same deponent as a fact witness for a full day. (Id.). Defendant Henry Schein's counsel suggested two alternative dates for the Rule 30(b)(6) deposition, but Plaintiff's counsel objected to those dates noting that other depositions were scheduled on those days. (Id.). Plaintiff's counsel asserted that it was Defendant Henry Schein's counsel's choice to either conduct the Rule 30(b)(6) deposition at the present time or waive the opportunity to conduct said deposition because Mr. Carson was unavailable for the remainder of the discovery period. (Id.). Having reached an impasse, the parties concluded the deposition, and they went off the record. (Id.).

*14 On February 5, 2021, Defendant Henry Schein served a supplemental notice for Plaintiff's Rule 30(b)(6) deposition to take place on February 15, 2021. (Exhibit G [Docket No. 343-7]). This supplemental notice contained two new topics concerning damages and documents Plaintiff produced after service of the original notice of Rule 30(b)(6) deposition. (See, Id.).

On February 11, 2021, Plaintiff served its objections to the supplemental notice of Rule 30(b)(6) deposition. (Exhibit J [Docket No. 343-10]). Included in its various objections, Plaintiff noted that it would not produce a corporate representative to testify on February 15, 2021, because Defendant Henry Schein had waived its opportunity to conduct a Rule 30(b)(6) deposition by declining to conduct said deposition at the conclusion of Mr. Carson February 2, 2021, fact deposition. (See, Id.).

On February 15, 2021, Defendant Henry Schein filed the present Motion.

B. Analysis

Federal Rule of Civil Procedure 26(b)(1) states:

Federal Rule of Civil Procedure 37(a)(3) provides for various motions to compel disclosure or compel discovery depending on the nature of the failure by the other party. Specifically, the Court may compel the deposition of a Rule 30(b)(6) deponent where a party fails to comply with its obligations under Rule 30. See, Fed. R. Civ. P. 37(a)(3)(B). Courts have wide discretion in handling pretrial discovery matters. See, e.g., Robinson v. Potter, 453 F.3d 990, 994–95 (8th Cir. 2006); Stuart v. Gen. Motors Corp., 217 F.3d 621, 630 (8th Cir. 2000) (a district court's decision on a motion to compel is reviewed for “gross abuse of discretion affecting the fundamental fairness of the proceedings” (quotations omitted)); Reese v. Sherburne Cty. Det. Ctr., No. 19-cv-1975 (ECT/KMM), 2021 WL 1723780, at *1 (D. Minn. Mar. 16, 2021); Hill v. Sw. Energy Co., 858 F.3d 481, 484 (8th Cir. 2017).

Federal Rule of Civil Procedure 30(b)(6) sets forth the procedure for deposing an organization, such as Plaintiff. When a party names an organization as the deponent, the organization “must then designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf.” Fed. R. Civ. P. 30(b)(6). The organization must prepare the designee or designees “so that they may give complete, knowledgeable and binding answers on behalf of the corporation.” Prokosch v. Catalina Lighting, Inc., 193 F.R.D. 633, 638 (D. Minn. 2000). As is the case throughout the entire discovery process, the party designating a Rule 30(b)(6) deponent has an obligation to produce said deponent in good faith. Doe v. Mastoloni, 307 F.R.D. 305, 314 (D. Conn. 2015) (“The parties are reminded of their continuing obligation to conduct discovery in good faith.”); Prokosch v. Catalina Lighting, Inc., 193 F.R.D. 633, 638 (D. Minn. 2000) (discussing good faith requirement in designating Rule 30(b)(6) deponent); see, DePoyster v. Brookhaven Med. Inc., No. 4:15-cv-675 (BSM), 2017 WL 10605267, at *5 (E.D. Ark. Feb. 23, 2017). This good faith obligation is in line with “the just, speedy, and inexpensive determination of every action and proceeding.” See, Fed. R. Civ. P. 1.

*15 On the record now before the Court, it cannot be reasonably said that Plaintiff has made any good faith effort to produce its Rule 30(b)(6) deponent for deposition. Instead, Plaintiff attempted to force Defendant Henry Schein to conduct a Rule 30(b)(6) corporate designee deposition immediately following conclusion of the full day, individual fact witness deposition of the same person. Plaintiff's position that Defendant Henry Schein was somehow required to conduct the Rule 30(b)(6) deposition at that time lacks any reasonable basis in the law, and it demonstrates a lack of a good faith attempt to reasonably produce Plaintiff's Rule 30(b)(6) deponent. Plaintiff takes the position that because Mr. Carson and counsel unilaterally claimed to have made themselves available for the Rule 30(b)(6) deposition immediately after the conclusion of his fact deposition, Defendant Henry Schein then simply failed to take it. Plaintiff's position here is simply untenable.

Defendant Henry Schein is entitled to conduct a Rule 30(b)(6) deposition of Plaintiff's corporate designee. The Court finds unpersuasive each of Plaintiff's arguments to contrary.[17]

Plaintiff argues that Defendant Henry Schein's Motion to Compel should be denied because the original Notice of Rule 30(b)(6) deposition was “ineffective” because it noticed a deposition to occur by remote means and the parties had not previously agreed to a remote deposition. Plaintiff's argument here is unpersuasive. First, Plaintiff fails to cite to any controlling caselaw demonstrating that designating a deposition to be taken by remote means would render the Notice of it “ineffective.” Second, Plaintiff's argument here ignores the fact that the parties have taken several depositions by remote means. In fact, Mr. Carlson's individual fact witness deposition was taken by remote means.[18]

Plaintiff also argues that Defendant Henry Schein's present Motion should be denied because Defendant Henry Schein's supplemental notice of Rule 30(b)(6) deposition unilaterally set the Rule 30(b)(6) deposition for a date Defendant Henry Schein knew Mr. Carson was unavailable and on which Defendant Henry Schein knew other discovery depositions were also scheduled to take place. Plaintiff's argument here too lacks merit because it is based on a circumstance of Plaintiff's own creation.

On October 15, 2020, Defendant Henry Schein served Plaintiff with a Rule 30(b)(6) deposition notice with the Rule 30(b)(6) deposition to take place on November 4, 2020. Plaintiff failed to designate a Rule 30(b)(6) deponent until January 24, 2021—less than a month before the close of discovery. At the time Plaintiff designated Mr. Carson as the Rule 30(b)(6) deponent, Plaintiff had already informed Defendant Henry Schein that Mr. Carson was not available for a deposition until February 2, 2021, and Plaintiff's counsel told Defendant Henry Schein's counsel that Mr. Carson was not available any other time during the discovery period. (Carson Depo, [Docket No. 344], at 302:15–18). It was Plaintiff which chose to designate a Rule 30(b)(6) deponent who was only available during a single day for the remainder of the entire discovery period and who already had a fact witness deposition scheduled for that single available day. Plaintiff cannot use its own designation as a shield to prevent the deposing of its Rule 30(b)(6) deponent.[19]

*16 Plaintiff also argues that Defendant Henry Schein's Motion to Compel should be denied because Defendant Henry Schein has had the opportunity to question other witnesses on issues related to some of the topics identified in the Supplemental Notice of Rule 30(b)(6) deposition. The Court finds this argument to be unpersuasive. First, Plaintiff's position here overlooks that fact that no other witness during the discovery period was designated as a Rule 30(b)(6) corporate designee, and therefore, the testimony of those other witnesses is not directly binding on Plaintiff in the same manner as the testimony of a Rule 30(b)(6) deponent. Second, other than its conclusory assertions to the contrary, Plaintiff has failed to present a factual basis demonstrating that the information obtained at Mr. Carson's fact witness discovery deposition would be duplicative of the information sought and for which he was separately prepared to answer at his Rule 30(b)(6) corporate designee deposition.

Therefore, to the extent Defendant Henry Schein's Motion to Compel, [Docket No. 339], seeks an Order of this Court compelling Plaintiff to produce a Rule 30(b)(6) corporate designee deponent, Defendant Henry Schein's Motion to Compel, [Docket No. 339], is GRANTED. The deposition of Plaintiff's Rule 30(b)(6) deponent shall take place as soon as possible and in any event by no later than June 6, 2021. If Mr. Carson is not available within the time permitted, Plaintiff shall designate and prepare another Rule 30(b)(6) deponent.

IV. Defendants’ Motion for Sanctions. [Docket No. 367].

Defendant Pace and Defendant Henry Schein's Motion for Sanctions relates to Plaintiff's certification of the accuracy of its damages calculation in its Second Supplemental Spreadsheet. (See, Def.’s Mem. [Docket No. 370]). Plaintiff previously produced its Second Supplemental Spreadsheet and repeatedly attested that the damages calculation therein was accurate; however, Plaintiff has now recently produced a Third Supplemental Spreadsheet which differs from the Second Supplemental Spreadsheet. Defendants seeks an Order of this Court directing Plaintiff to pay to Defendants their expenses and attorney's fees incurred in preparing an expert report and evaluating Plaintiff's damages claim contained in the Second Supplemental Spreadsheet, as well as, the expenses and attorney's fees they incurred in bringing the present Motion for Sanctions. (Defs.’ Mem. [Docket No. 370], at 2). Defendants also seeks their expenses and attorney's fees incurred in bringing their previous motions to compel. (Id.). In support of their present Motion, Defendants, relying on Federal Rule of Civil Procedure 26(g)(3), assert that the requested sanctions are appropriate because they expended “significant resources analyzing and responding to” Plaintiff's Second Supplement Spreadsheet which Plaintiff has now abandoned as inaccurate. (See, Id. at 14–20).

Plaintiff contends that Defendants’ asserted grounds for sanctions are unavailing, and Plaintiff asks the Court to deny the Motion in its entirety. (See, Plf.’s Mot. [Docket No. 379]).[20] Plaintiff asserts that the difference between the damages calculations in the Second and Third Supplement Spreadsheet were caused by a “sorting error” in the Second Supplemental Spreadsheet which Plaintiff did not discover until “late 2020.” (Id. at 9).

A. Relevant Facts

On April 22, 2020, Plaintiff served upon Defendants its Second Supplement to its Initial Disclosures. (Skoff Decl., [Docket No. 373], ¶ 3). This Second Supplemental Initial disclosure contained Plaintiff's damages calculation in spreadsheet form (hereinafter “Second Supplemental Spreadsheet”). (Id.). In the portion of its Second Supplement to its Initial Disclosures regarding its computation of damages, Plaintiff asserts that it “calculates its damages to be in excess of $10 million,” including “lost profits estimated to be at least $5,853,423.05.” (Second Supp. to Plf.’s Initial Disclosures, [Docket No. 266-1], at 10). The Second Supplemental Spreadsheet includes a list of 159 customers, as well as, the “Feb 2018-2019 Sales”; the “Feb 2019-2020 Sales”; the “Percent Lost in Sales”; and the “Total Lost Sales” for each customer listed. (Id. at 13–18). The list also includes nine “prospective customers” from whom Plaintiff alleges it lost sales; the “Proposal Date” for each prospective customer; and the “Proposal Value” for each of these nine prospective customers. (Id. at 19). Plaintiff alleged it “suffered annual lost sales from 159 customers amounting to $3,924,468.77.” (Id. at 10).

*17 On August 30, 2020, Defendant Henry Schein produce the report of its damages expert. (Skoff Decl., [Docket No. 373], ¶4). In drafting his report, Defendant Henry Schein's damages expert relied upon the information contained in Plaintiff's Second Supplemental Spreadsheet. (See, Id.; Report [Docket No. 374-1]).

Thereafter, the parties engaged in significant motion practice regarding various discovery issues, including the sufficiency of Plaintiff's damages calculation and its Second Supplemental Spreadsheet. As relevant to the present Motion, Defendants previously moved for an Order of this Court compelling Plaintiff to respond fully to several Requests for Production which sought documents related to Plaintiff's alleged damages, including documents underlying Plaintiff's Second Supplemental Spreadsheet. Plaintiff had responded to each of the then at issue discovery requests by directing Defendants to the Second Supplemental Spreadsheet.

On December 21, 2020, the undersigned issued an Order, [Docket No. 305], which partially granted Defendants’ Motion seeking an Order compelling Plaintiff to fully respond to the at issue Requests for Production seeking discovery related to Plaintiff's alleged damages. The Order noted that Plaintiff was not permitted to simply informally refer Defendants to the Second Supplemental Spreadsheet in response to the discovery request. (Order, [Docket No. 305], at 26–28). The Order noted that although Plaintiff's response to the discovery request could include the Second Supplemental Spreadsheet, Plaintiff was also required to produce the underlying documents it used or referred to in creating the Second Supplemental Spreadsheet. (Id.). Plaintiff was specifically required to produce those documents as they are kept in the ordinary course of business, and Plaintiff was specifically required to identify the documents which are responsive to each individual request for production. (Id.). Plaintiff was required to produce said documents by no later than January 13, 2021.

On January 13, 2021, Plaintiff served its Third Supplement to its Initial Disclosures which contained a new spreadsheet containing Plaintiff's calculation of its alleged damages (hereinafter “Third Supplemental Spreadsheet”). (Plf.’s Third Supplement to its Initial Disclosures [Docket No. 374-2]).[21] In its Third Supplement to its Initial Disclosures, Plaintiff alleges that its damages calculation “includes lost profits estimated to be at least $3,043,875.90.” (Id. at 3). Plaintiff further alleges that it “suffered annual lost sales of $1,113,976.01 from 134 customers for non-equipment sales, with $344,760.49 in profits attributable to such sales,” as well as, “annual lost sales of $772,686.89 for 34 customers for non-CAD/CAM equipment sales, with $146,840.51 in profits attributable to such sales.” (Id.). Plaintiff's counsel informed Defendants’ counsel that the Third Supplemental Spreadsheet did not contain information for twenty-three customers whose accounts were closed because Plaintiff was no longer seeking damages as to those customers. (Plf.’s Counsel Email, [Docket No. 373-7], at 3). The Court's review of the Third Supplement Spreadsheet finds that there are fifty-four (54) new customers listed on the Third Supplemental Spreadsheet which were not listed on the Second Supplemental Spreadsheet. (Compare Second Supplemental Spreadsheet [Docket No. 374] to Third Supplemental Spreadsheet [Docket No. 374-2]).[22]

*18 Plaintiff's Third Supplemental Spreadsheet also contained a tab entitled “Mini Mega Report” which Plaintiff's counsel asserted was the data Plaintiff used to calculate its damages. (Plf.’s Counsel Email, [Docket No. 373-7], at 3). The Mini Mega Report contains a list of customers with corresponding columns for sales by month, year, and growth or decline in sales year-over-year. (Kline Decl. [Docket No. 382]).

B. Standard of Review

Federal Rule of Civil Procedure 26(g)(1) requires that every disclosure made under Rule 26(a)(1) or (a)(3) must be signed by at least one attorney of record or by a pro se party and that such signature certifies that “to the best of the person's knowledge, information, and belief formed after a reasonable inquiry: (A) with respect to a disclosure, it is complete and correct as of the time it is made.” Rule 26(g)(3) provides: “If a certification violates this rule without substantial justification, the court, on motion or on its own, must impose an appropriate sanction on the signer, the party on whose behalf the signer was acting, or both.”

The Rule is designed to “provide[ ] a deterrent to both excessive discovery and evasion by imposing a certification requirement that obliges each attorney to stop and think about the legitimacy of a discovery request, a response thereto, or an objection ....” Fed. R. Civ. P. 26(g), Advisory Committee Notes to the 1983 Amendments. “[W]hat is reasonable is a matter for the Court to decide on the totality of the circumstances.” Id. “[U]nder Rule 26(g)(2) ... [the subject of the inquiry] is the thoroughness, accuracy and honesty (as far as counsel can reasonably tell) of the responses and the process through which they have been assembled.” Poole v. Textron, Inc., 192 F.R.D. 494, 503 (D. Md. 2000) (alteration in original).

The Court's authority to sanction in Rule 26(g) is derived from Rule 37 and the Court's inherent power. See, Fed. R. Civ. P. 26(g), Advisory Committee Notes to the 1983 Amendments. Federal Rule of Civil Procedure 37(b)(2) provides a number of possible sanctions, including monetary sanctions. However, “[i]n order to impose sanctions under Rule 37, there must be an order compelling discovery, a willful violation of that order, and prejudice to the other party.” Chrysler Corp. v. Carey, 186 F.3d 1016, 1019 (8th Cir. 1999) (emphasis added); see, Card Tech. Corp. v. DataCard Inc., 249 F.R.D. 567, 571 (D. Minn. 2008).

Further, the allegedly sanctionable conduct of which the moving party complains must be sufficiently connected to the allegedly improper certification of discovery responses. See, Cherrington Asia Ltd. v. A&L Underground, Inc., 263 F.R.D. 653, 658–61 (D. Kan. 2010). Moreover, the party seeking sanctions must demonstrate prejudice, and the relief sought by the party moving for sanctions must correspond to the prejudice alleged by Plaintiff. See, e.g., Murphy by Kay v. Piper, No. 16-cv-2623 (DWF/BRT), 2018 WL 3727385, at *6 (D. Minn. Aug. 6, 2018).

C. Analysis

As observed above, Defendants seeks an Order of this Court imposing sanctions against Plaintiff solely in the form of an award of attorney's fees and costs. Defendants only generically attribute the fees and costs as being those incurred in preparing an expert report on damages and evaluating Plaintiff's damages claim based on the Second Supplemental Spreadsheet which Plaintiff has now abandoned. Defendants also variously seek their expenses and attorney's fees incurred in bringing their previous motions to compel. (Id.). Defendants contend that such an award is appropriate because although Plaintiff's counsel signed the disclosure to which its Second Supplemental Spreadsheet was attached as required by Federal Rule of Civil Procedure 26(g), Plaintiff's Second Supplemental Spreadsheet is inaccurate and has apparently, due to error, always been inaccurate.

*19 Defendants seeks monetary sanctions based solely on their arguments regarding Plaintiff's counsels’ purported violation of Rule 26(g). (See, Defs.’ Mem. [Docket No. 370]). Defendants do not seek any additional discovery regarding Plaintiff's Third Supplemental Spreadsheet[23] nor any additional opportunity to conduct any additional depositions regarding Plaintiff's damages calculation. Similarly, Defendants do not seek any extension of the deadlines in the operative pretrial scheduling order to permit them to file an amended expert report regarding damages.[24] Defendants do not seek sanctions based on any allegation that Plaintiff failed to produce all documents underlying its Second Supplemental Spreadsheet damages calculation as previously ordered by the Court. Instead, Defendants solely seek a monetary sanction based on their generic allegation that they expended “significant resources” evaluating Plaintiff's damages calculation in its Second Supplemental Spreadsheet.

Defendants have not, however, asserted any specific factual allegation or argument demonstrating that the “significant resources” they expended evaluating Plaintiff's damages calculations are no longer relevant or useful in defense of the present action. Instead, on the record now before the Court, it appears that the discovery and expert report obtained by Defendants in evaluating the damages calculation in Plaintiff's Second Supplemental Spreadsheet ostensibly remain relevant and useful because Defendants have also not sought any additional discovery related to Plaintiff's recent production of its Third Supplemental Spreadsheet.

On that basis, the Court finds that, even though it has now been demonstrated that the damages calculation in Plaintiff's Second Supplemental Spreadsheet were inaccurate, Defendants have failed to demonstrate that they have been prejudiced or damaged by Plaintiff's counsel's certification of its Second Supplement to its Initial Disclosures which contained the Second Supplemental Spreadsheet. Defendants’ failure to demonstrate the necessary prejudice is fatal to their Motion for Sanctions. See, e.g., Murphy by Kay v. Piper, No. 16-cv-2623 (DWF/BRT), 2018 WL 3727385, at *6 (D. Minn. Aug. 6, 2018). The totality of the circumstances in the present case, including Defendants’ failure to demonstrate the requisite prejudice, simply does not support implementation of the requested monetary sanctions.[25]

Therefore, Defendant's Motion for Sanctions, [Docket No. 367], is DENIED.

V. Conclusion

Therefore, for the foregoing reasons, and based on all of the files, records, and proceedings herein, IT IS HEREBY ORDERED THAT:

In the motion practice surrounding Defendants’ present Motions, the parties filed several documents under temporary seal. The Court will address the possible continued sealing of these filings in a separate Order in accordance with Local Rule 5.6. Although the Court, in the present Order, references portions of some of the documents the parties filed under temporary seal, the Court finds that none of the references contained within the present Order warrant sealing the present Order. Therefore, the present Order will not be issued under seal.

A copy of the Employee Agreement is attached to Plaintiff's Second Amended Complaint.

Plaintiff's counsel's June 5, 2019, letter to Defendant Henry Schein is addressed to Ms. Han. (Id.).

Plaintiff's counsel's letter to Defendant Henry Schein is addressed to Ms. Han. (Id.).

The parties did not agree on a forensic protocol. This issue has, however, been previously resolved by the Court in a prior Order. [Docket No. 149].

In citing to the parties’ briefs, the page numbers cited are the page numbers assigned by the Court's docketing system, CM/ECF.

Plaintiff also argues that Defendant Henry Schein's Motion for Protective Order should be denied because oral arguments on said Motion were scheduled to be heard after the non-dispositive heard by deadline set in the present case. (See, Plf.’s Mem., [Docket No. 347], at 6). Plaintiff's argument here is without merit. As the Court has previously explained, if a hearing on a timely made motion is required to be scheduled after a heard by deadline because of the lack of availability on the Court's calendar, the scheduling party is not in violation of the scheduling order. Defendant Henry Schein called the undersigned's chambers in sufficient time to have the present Motion heard before the nondispositive motions deadline, i.e., Defendant Henry Schein contacted the undersigned's chambers more than fourteen days before the nondispositive motions deadline. Thus, Defendant Henry Schein's present Motion is timely. It was solely an operation of the lack of availability on this Court's calendar which required the hearing on the present Motion to be scheduled for after the nondispositive motions deadline.

Oehmke, which relied upon Pamida, is also factually distinguishable from the present case. It involved a plaintiff's attempt to depose defendant's in-house counsel about a face-to-face conversation defendant's in-house counsel had with plaintiff which involved only plaintiff's past employment with the defendant there and her ability to transfer to another position within Defendant. Moreover, that conversation took place well before the initiation of that suit. See, Oehmke, 2015 WL 2242041. The only participants in the meeting were defendant's in-house counsel, plaintiff, and plaintiff's then counsel. See, Id. The Court there relied heavily on the factual nature of the conversation in-house counsel had with plaintiff about her employment noting that in-house counsel was working only in her business capacity. Id. at 6–8. Moreover, the Court in Oehmke also specifically stated that it found “significant” the fact that the party seeking to quash the deposition of its counsel also “insisted on reserving the right to call [its counsel] as a witness at trial to rebut [plaintiff's] version of the” meeting between counsel and plaintiff. Id. at 8. Those are not the circumstances of the present case. In the present case, nothing in the record indicates that Defendant Henry Schein “insist[s] on reserving the right” to call Ms. Han as a witness at trial nor does the record reflect that Ms. Han has had any face-to-face contact or communication with Plaintiff other than in her capacity as Defendant Henry Schein's in-house litigation counsel.

The same is true for Plaintiff's request to depose Ms. Han regarding “certain [unspecified] non-privileged documents of which [she] has personal knowledge and that HSI has produced” and “facts underlying HSI's counterclaims.” (See, Plf.’s Mem., [Docket No. 347], at 8). Given the overly broad and generic nature of these “topics” which necessarily seek a broad swath of information it is difficult to see why Plaintiff could not have sought this factual information just as readily from other sources and witnesses during discovery. In any event, it is evident that in the present case Plaintiff has failed to demonstrate that it could not obtain information regarding these generic, unspecified topics from other sources.

Erie R. Co. v. Tompkins, 304 U.S. 64, 78 (1938).

The previously discussed Employment Agreement which Defendant Pace signed with Plaintiff during her employment with Plaintiff contained a governing law provision which provided that the Employment Agreement was “a Colorado contract and shall be construed under and be governed in all respects by the laws of Colorado, without giving effect to the conflict of laws provisions of Colorado law.” (Employment Agreement [Docket No. 239-1]). While this governing law provision provides that Colorado law represents the substantive law applying to Plaintiff's claims arising out of the Employment Agreement, it does not apply to the “law of privileged communications.” Hercules, Inc. v. Martin Marietta Corp., 143 F.R.D. 266, 268 (D. Utah 1992) (discussing privilege law in the context of claims governed by Colorado substantive law pursuant to the governing law provision of the relevant contract).

Minnesota law provides that “[a]n attorney cannot, without consent of the attorney's client, be examined as to any communication made by the client to the attorney or the attorney's advice given thereon in the course of professional duty; nor can any employee of the attorney be examined as to the communication or advice, without the client's consent.” Minn. Stat. § 595.02, subd. 1(b). Similarly, Colorado law provides that “[a]n attorney shall not be examined without the consent of his client as to any communication made by the client to him or his advice thereon in the course of professional employment; nor shall an attorney's” staff “be examined without the consent of his employer concerning any fact, the knowledge of which he has acquired in such capacity.” Colo. Rev. Stat. § 13-90-107 (1)(b). Additionally, the Courts of both Minnesota and Colorado have recognized that the attorney-client communication privilege extends to corporations and the employer and employee dynamic. See, e.g., Leer v. Chicago, M., St. P. & P. Ry. Co., 308 N.W. 2d 305, 308–09 (Minn. 1981); Alliance Const. Sols., Inc. v. Dep't of Corr., 54 P.3d 861, 864 (Colo. 2002); Nat'l Farmers Union Prop. & Cas. Co. v. Dist. Court, 718 P.2d 1044, 1047 (Colo. 1986); Diversified Indus. Inc. v. Meredith, 572 F.2d 596, 609 (8th Cir. 1977).

Rule 26(c) allows the Court, upon a showing of good cause, to “issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including ... forbidding the disclosure or discovery.” Fed. R. Civ. P. 26(c). “The party seeking the order ... bears the burden of establishing the requisite ‘good cause.’ ” Northbrook Digital, LLC v. Vendio Servs., 625 F. Supp. 2d 728, 734 (D. Minn. 2008); Shukh v. Seagate Tech., LLC, 295 F.R.D. 228, 237 (D. Minn. 2013).

Mr. Carson is the General Manager of Plaintiff's Colorado Branch. (Skoff Decl., [Docket No. 343], ¶ 10).

Plaintiff asserts that it did not respond to Defendant Henry Schein's notice of deposition until after the November 4, 2020, date because Plaintiff had not consented to the Rule 30(b)(6) deposition being conducted by remote means and because there was then pending a motion before the Court regarding whether or not depositions in the present case would proceed by remote means. (Plf.’s Mem., [Docket No. 353], at 8).

These times were provided, and reflected here, in Mountain Standard Time as it was Mr. Carson's local time zone at the time of the deposition.

Plaintiff argues that Defendant Henry Schein's Motion to Compel should be denied because oral arguments on said Motion were scheduled to be heard after the non-dispositive heard by deadline in the present Pretrial Scheduling Order. (See, Plf.’s Mem., [Docket No. 353], at 22–23). The Court finds Plaintiff's argument fails here for the same reasons already discussed above in relation to Defendant Henry Schein's Motion for Protective Order. See, fn. 7, supra.

It is irrelevant that the Court previous denied Defendant Henry Schein's request for an Order requiring all deposition be taken by remote means. Plaintiff cannot rely on this previous Order to render “ineffective” a notice of Rule 30(b)(6) deposition, especially where Plaintiff has agreed to conduct several depositions by remote means, including the fact deposition of Mr. Carson. Moreover, the gamesmanship of this argument is laid bare by the fact that Plaintiff's attempt to unilaterally force Defendant Henry Schein to take the Rule 30(b)(6) deposition following conclusion of Mr. Carson's fact witness deposition would also have been by remote means.

Similarly, the Court finds unpersuasive Plaintiff's argument that if Defendant Henry Schein sought a separate Rule 30(b)(6) deposition on a separate day Defendant Henry Schein “should have schedule it much further in advance.” (Plf.’s Mem., [Docket No. 353], at 27). Defendant Henry Schein attempted to do so, but it was unsuccessful because of circumstances of Plaintiff's creation. The Rule 30(b)(6) deposition was originally notice for November 4, 2020, but Plaintiff did not designate a Rule 30(b)(6) deponent until January 24, 2021, which was only seven days before Mr. Carson's scheduled February 2nd fact deposition. Moreover, despite Plaintiff assertions to the contrary, the record now before the Court does not indicate that Defendant Henry Schein's counsel agreed to conduct the Rule 30(b)(6) during Mr. Carson's fact deposition. Instead, Defendant Henry Schein's counsel agree to try to include some limited questions related to the Rule 30(b)(6) topics; counsel, however, specifically reserved the right to conduct the Rule 30(b)(6) deposition separately as provided for by the Federal Rules of Civil Procedure. Given that Defendant Henry Schein's counsel had agreed to attempt to intersperse some questions related to Rule 30(b)(6) topics and to reduce the Rule 30(b)(6) deposition by the time used to intersperse those question, it was entirely reasonable for Defendant Henry Schein to delay the supplement notice of Rule 30(b)(6) deposition until after Mr. Carson's fact deposition. Further, when during the fact deposition of Mr. Carson on February 2, 2021, counsel for Henry Schein again offered to intersperse some limited 30(b)(6) questions, Plaintiff's counsel declined the offer.

Plaintiff also argues that Defendants’ Motion for Sanctions should be denied because oral arguments on said Motion were scheduled to be heard after the non-dispositive heard by deadline in the Pretrial Scheduling Order. (See, Plf.’s Mem. [Docket No. 379]). This argument has previously been rejected. See, fn. 7 and fn. 17, supra.

On January 13, 2021, Plaintiff also produced several other documents. Although all parties agree that Plaintiff produced other documents in addition to its Third Supplemental to its Initial Disclosure, the parties fail to specifically identify these documents. This failing is not, however, detrimental to this Court's present analysis because Defendants seek only monetary sanctions in the present Motion. Defendants do not here seek production of further documents.

Plaintiff asserts that the differences between the Second Supplemental Spreadsheet and the Third Supplemental Spreadsheet are due to a “sorting error” which occurred when Plaintiff's counsel “sorted the spreadsheet by the values” which caused the “sales figures” columns to change while the “customer names stayed locked in place.” (Plf.’s Mem., [Docket No. 379], at 10). Essentially, Plaintiff asserts that the difference in the Spreadsheet is attributable to an error that caused the numerical values to change locations while the customer names remained in the same location. The Court finds this explanation unpersuasive as it is unsupported by the record now before the Court. The rearrangement of customer names and values does nothing to explain the addition of fifty-four new customers listed on the Third Supplemental Spreadsheet. On the record now before the Court, Plaintiff has failed to proffer any explanation as to the addition of these fifty-four new customers.

For example, Defendants do not seek an Order of this Court finding that Plaintiff's production of the “Mini Mega Report” combined with the other as here unspecified documents is insufficient to satisfy Plaintiff's obligation to produce documents underlying its damages calculation. Nor have Defendants sought an Order of this Court compelling Plaintiff to produce the documents underlying its “Mini Mega Report.” Similarly, Defendants do not seek any additional discovery regarding the fifty-four new customers listed on the Third Supplemental Spreadsheet which were not listed on the Second Supplemental Spreadsheet.

Defendants do not even argue that their damages expert will need to amend his report in any manner.

This is not to say that the Court condones Plaintiff's conduct. Although it does not change the Court's decision in the present Order, it is highly likely that Plaintiff could have demonstrated more diligence earlier on in verifying its damages calculations.

To the extent any request for relief is not expressly addressed in this Order, the request for that relief is DENIED.

See, fn. 26.