Lilas Guttormson and John Fenner, on behalf of themselves and all others similarly situated, Plaintiffs, v. ManorCare of Minot ND, LLC, doing business as Manorcare Health Services, and HCR Manorcare Medical Services of Florida, LLC, Defendants and Third-Party Plaintiffs, v. Trinity Hospitals, Inc. and Trinity Health, Inc., Third-Party Defendants Civil No. 4:14-cv-36 Signed January 06, 2016 Senechal, Alice R., United States Magistrate Judge ORDER *1 This order addresses several discovery matters: (1) a motion to compel production of documents, (Doc. #285), (2) a related discovery dispute which was the subject of an informal conference held on December 16, 2015, pursuant to Civil Local Rule 37.1, (Doc. #344), (3) a motion to compel a deposition, (Doc. #311), and (4) a cross-motion for a protective order to forbid that deposition, (Doc. #331). Defendants/Third-Party Plaintiffs ManorCare of Minot, ND, LLC and HCR ManorCare Medical Services of Florida, LLC (ManorCare) seek production of certain documents from Third-Party Defendants Trinity Hospitals, Inc. and Trinity Health, Inc. (Trinity). ManorCare also seeks an order that Trinity's Chief Executive Officer (CEO) be produced for deposition, (Doc. #311), and Trinity requests a protective order forbidding that deposition, (Doc. #330; Doc. #331).[1] Discussion 1. Procedural Posture The focus of this litigation has undergone a metamorphosis since the original complaint was filed. Originally, the plaintiffs, in a proposed class action, alleged ManorCare was negligent in failing to protect them from contracting the Hepatitis C virus (HCV) while they were residents at ManorCare's long-term care facility in Minot, North Dakota. Plaintiffs invoked diversity jurisdiction, since ManorCare is a nonresident entity. ManorCare then brought a third-party complaint against Trinity, asserting multiple causes of action relating to contracts under which Trinity employees provided phlebotomy and podiatry services to ManorCare residents, and alleging that Trinity, rather than ManorCare, was responsible for plaintiffs having contracted the HCV. Trinity brought cross-claims against ManorCare, but those were dismissed pursuant to a stipulation among the parties. The plaintiffs have since withdrawn their motion for class certification, and have moved to dismiss all of their claims in this forum. (Doc. #173; Doc. #305). Instead, the plaintiffs now wish to pursue negligence claims against both ManorCare and Trinity, but cannot do so in this forum because of lack of diversity against Trinity. The plaintiffs thus sought, and have been granted, leave to intervene in a state court case in which both ManorCare and Trinity are defendants. If the plaintiffs' motion to dismiss is granted, ManorCare desires to continue to pursue its claims against Trinity in this forum. ManorCare requests that it then be designated as plaintiff, and that Trinity be designated as defendant. (Doc. #333, p. 2). In a pending motion seeking leave to amend its complaint, ManorCare alleges that Trinity's conduct warrants punitive damages. (Doc. #273). Trinity joins in the plaintiffs' motion to dismiss the plaintiffs' claims against ManorCare, but seeks dismissal without prejudice of ManorCare's third-party complaint against Trinity. Alternatively, Trinity asks that this case be stayed pending resolution of the state court action. (Doc. #334). 2. HCV Outbreak and Investigation *2 A total of 52 patients in the Minot area have been identified as infected with the same HCV strain. Most, but not all, are or were ManorCare residents. The North Dakota Department of Health (NDDoH)—in conjunction with the federal Centers for Disease Control—has investigated the Minot HCV outbreak, but has not yet identified the source of the infection. Among other possibilities, NDDoH has investigated drug diversion by health care providers as a cause of the HCV outbreak. Although there is some dispute about the time frame during which the HCV was transmitted, it appears that the NDDoH investigation has focused on the period from January 2011 until September 2013. ManorCare contends, however, that the relevant time period extends at least until late 2014. ManorCare points to a December 23, 2014 NDDoH news release, which reported confirmation of “one additional case of hepatitis C related to the outbreak in Ward County.” The news release went on to say, “The case is not associated with residency at ManorCare, Minot. There has been no evidence of disease transmission at ManorCare, Minot, since the fall of 2013.” (Doc. #277-3, p. 21). ManorCare has disclosed an expert opinion which hypothesizes that “a number of the source patients were originally infected as a result of diversion of injectable narcotic or anesthetic drugs” at Trinity. (Doc. #276, p. 3; Doc. #313-3, p. 3). In pursuit of its theory of transmission of the HCV emanating from drug diversion by Trinity personnel, ManorCare requested that Trinity produce: All documents and communications concerning any suspected, reported, or confirmed diversion of injectable, subcutaneous, or [intravenous] drugs (or equipment used to deliver such drugs) at any Trinity facility from January 1, 2010 to present. (Doc. #286, p. 2). ManorCare also requested that Trinity produce all documents and communications concerning each of the Trinity personnel identified in NDDoH investigative records as having been suspected of drug diversion. Additionally, it is now ManorCare's position that Trinity personnel suspected of diversion of orally administered drugs should be included, since Trinity recently requested similar information about ManorCare's personnel. (Doc. #286, p. 3 n.1). NDDoH investigated seven Trinity personnel who had been subjects of internal investigations of alleged drug diversion at Trinity from 2009 to 2013. In addition to those seven, the parties identify other Trinity personnel who have been investigated for possible drug diversion: (1) TB and SH, who were investigated for suspected drug diversion in 2014, (2) another nurse, SS, who Trinity recently disclosed as the subject of investigation for drug diversion in 2014, (3) an “other individual” whom Trinity is currently investigating for suspected drug diversion in 2014 and 2015, and (4) a Trinity paramedic, ML, whose employment was terminated in December 2013 because of drug diversion. (See Doc. #286, p. 2; Doc. #302, pp. 1-2; infra Section 4, pp. 9-10).[2] *3 Two of the seven individuals, whom NDDoH has investigated, did not fall within the temporal scope of ManorCare's request, and another did not come within the scope of the request because only oral rather than injectable drugs were involved. Earlier orders required that Trinity produce certain documents concerning the other four of the seven individuals. (Doc. #225; Doc. #236; Doc. #248). The earlier orders did not require production of documents concerning personnel[3] whom Trinity investigated for possible drug diversion in 2014, since that was outside the disease transmission time frame on which NDDoH focused. (Doc. #225, p. 4). In its responses to discovery requests subsequent to earlier orders, and in reliance on those orders, Trinity has not produced information relating to personnel it suspected of drug diversion after 2013. 3. ManorCare's Motion to Compel Evidence of Drug Diversion In its motion, ManorCare now seeks an order that Trinity produce “all documents and communications concerning suspected, reported, or confirmed drug diversion by anyone employed by or working at Trinity in any capacity during the period January 1, 2010 through present, regardless of when the individual was first suspected or caught diverting drugs.” (Doc. #286, p. 3). ManorCare contends that any suspected drug diversion from 2010 to the present is relevant to identification of the source of the HCV outbreak, even if Trinity did not suspect the diversion or investigate the allegations until after 2013. Additionally, ManorCare alleges that more recent evidence of drug diversion at Trinity is relevant to Trinity's “pattern and practice of covering up drug diversion,” which ManorCare contends is of particular relevance to its potential claim for punitive damages. Although ManorCare seeks leave to add a claim for punitive damages, that motion is not yet ripe for decision. Since there is no current claim for punitive damages, the court will not consider ManorCare's assertion that the requested documents are relevant to ManorCare's allegation that Trinity has a pattern and practice of tolerating and concealing drug diversion among its employees. In the event ManorCare's motion to amend is granted, the court will consider whether additional discovery should be allowed to develop any claim for punitive damages. It is Trinity's position that information relating to any drug diversion after 2013 is not relevant because there has not been evidence of disease transmission since late 2013. Additionally, specifically as to ML who worked in its ambulance service, Trinity contends that NDDoH found no commonality between ambulance services and the HCV outbreak, so any drug diversion by ML could not be relevant to determining the source of the HCV outbreak. Federal Rule of Civil Procedure 26, as recently amended, defines the scope of discovery to include: any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.[4] There is no dispute that some discovery regarding Trinity personnel who may have been involved in drug diversion is within Rule 26 's scope of discovery. The question is whether that discovery should be limited to personnel whom Trinity investigated for possible drug diversion prior to 2013. *4 The time limitation of the court's earlier orders was based on the time frame on which NDDoH has focused its investigation. (Doc. #356-1, p. 3). In a December 2014 news release, NDDoH stated it had no evidence of transmission of HCV at ManorCare since the fall of 2013, but NDDoH did not unequivocally state that there had been no transmission at any health care facility since that date. NDDoH press releases issued in 2013 and 2014 stress that the Minot HCV exposures were not believed to be recent and likely occurred in 2011 or 2012. (Doc. #277-3, pp. 10, 14). Thus, the individual referenced in the December 2014 NDDoH press release may have been infected prior to 2014, but not diagnosed as HCV positive until 2014. NDDoH states that the 2014 case was not associated with residency at ManorCare, and the court has no information on whether that individual was ever a Trinity patient. NDDoH press releases state that an infection source is never identified in approximately one-third of HCV outbreaks which are investigated by public health authorities. Id. at 12. Identifying the source of the HCV infection is an issue very important to this litigation. Given the extensive investigation and discovery that has already been done, and NDDoH's statement that a source is identified only in two-thirds of HCV outbreaks, the court questions whether the discovery ManorCare now seeks will be of benefit in identifying the source of the HCV infection. However, the number of Trinity personnel (five to seven) about whom ManorCare now requests information is relatively small, so the burden to Trinity would not be extensive. Considering the Rule 26 factors, Trinity will be ordered to produce additional documents in response to ManorCare's request. To the extent it has not already done so, Trinity will be ordered to produce “documents and communications concerning any suspected, reported, or confirmed diversion of injectable, subcutaneous, or [intravenous] drugs (or equipment used to deliver such drugs)” concerning any personnel—regardless of whether they were employed by Trinity—who worked at Trinity between January 2011 and September 2013, and who were suspected of, or investigated for, possible drug diversion of injectable[5] drugs at any time, regardless of whether the suspicion or investigation arose after September 2013.[6] In producing that information, Trinity may make redactions in the same manner allowed by the court's September 11, 2015 order. (See Doc. #248). If Trinity asserts a basis for any additional redactions, it may request in camera review prior to production of the documents. 4. In Camera Review—SS In responding to various requests for production of electronically stored information, Trinity recently produced a document concerning SS, a nurse whose work at Trinity was terminated in 2014 because of suspected drug diversion. Trinity asserts that its production of that document was “inadvertent,” since its investigation of SS did not occur until 2014, and Trinity intended to withhold the documents as outside the scope of the court's earlier orders. In response to disclosure of that document, ManorCare now seeks all Trinity documents concerning SS. ManorCare again asserts that evidence of any drug diversion at Trinity in 2014 and 2015 is relevant to “Trinity's pattern and practice of tolerating and concealing drug diversion,” and that the NDDoH had not ruled out ongoing transmission of HCV as of December 2013. During the Rule 37.1 conference, Trinity agreed to submit documents concerning SS to the court for in camera review. Trinity submitted those documents on December 21, 2015, and the court has completed its in camera review. The in camera review confirms that SS worked at Trinity for only a short time in September and October 2014, well after the HCV outbreak. SS could not have been a source of the outbreak. For that reason, Trinity will not be required to produce additional documents concerning SS. *5 Trinity asks that the court order “clawback” of the single SS document it produced inadvertently. Because it concerns events of 2014, it is Trinity's position that this court's earlier orders deem this document not relevant. Trinity's counsel states that, because of the large volume of electronically stored information being reviewed by many different lawyers, it simply “missed” that this document was outside the time frame outlined in the court's earlier orders. Although Federal Rule of Civil Procedure 26(b)(5)(B) provides for clawback under certain circumstances, inadvertent disclosure of a document not within the scope of relevance is not one of those circumstances. Trinity does not claim that the document is protected as attorney-client communications or as trial preparation material. The court therefore finds no legal basis to require that other parties destroy or return the single SS document. Of course, any use of the document is governed by an existing protective order, and its admissibility will be determined at trial. 5. CEO Deposition ManorCare seeks an order compelling the deposition of Trinity's CEO, John Kutch. Asserting the “apex doctrine,” Trinity's cross-motion seeks an order forbidding, or alternatively limiting, that deposition. The apex doctrine addresses depositions of high level executives, and is based on a recognition that depositions of high level executives create “tremendous potential for abuse or harassment.” Apple, Inc. v. Samsung Elecs. Co., Ltd., 282 F.R.D. 259, 263 (N.D. Cal. 2012). In Apple, Inc., the court described the following considerations when evaluating a request to limit depositions of high level executives: In determining whether to allow an apex deposition, courts consider (1) whether the deponent has unique first-hand, non-repetitive knowledge of the facts at issue in the case and (2) whether the party seeking the deposition has exhausted other less intrusive discovery methods. However, a party seeking to prevent a deposition carries a heavy burden to show why discovery should be denied. Thus, it is very unusual for a court to prohibit the taking of a deposition altogether absent extraordinary circumstances. When a witness has personal knowledge of facts relevant to the lawsuit, even a corporate president or CEO is subject to deposition. A claimed lack of knowledge, by itself[,] is insufficient to preclude a deposition. Id. at 263 (citations and internal quotation marks omitted). ManorCare contends that the Eighth Circuit has not adopted the apex doctrine. While the court has identified no Eighth Circuit decisions discussing that doctrine, several of the district courts within this circuit, like many district courts in other circuits, have applied the doctrine. The court therefore considers whether a prohibition, or limitation, of Kutch's deposition is appropriate under the apex doctrine. ManorCare contends that Kutch played a central role in coordinating Trinity's response to the HCV outbreak, and that he has key information that is not available elsewhere. (Doc. #312, p. 2). ManorCare identifies at least two meetings at which Kutch was present, and at which the HCV outbreak was a topic of discussion. Some time in October or November 2013, Kutch sent a memorandum to members of Trinity's board of directors outlining the “next steps” Trinity would be taking in response to the HCV outbreak. (Doc. #339-1). Additionally, ManorCare asserts that, since Trinity proposed to include Kutch as an individual whose electronic files would be searched for relevant information, Trinity recognized that Kutch had relevant information. ManorCare also argues that emails which Trinity has produced confirm Kutch's attendance at “a number of meetings concerning the outbreak,” and that he corresponded directly with Trinity's infectious disease specialist about the outbreak. (Doc. #312, p. 6). *6 ManorCare identifies five areas about which it desires to question Kutch: (1) why he did not follow a recommendation of Trinity's infectious disease specialist to test Trinity staff for HCV, (2) why he did not order broad testing of Trinity patients for HCV, (3) his knowledge of complaints about a Trinity phlebotomist's alleged reuse of needles across patients, (4) why Trinity has continued the employment of the phlebotomist who is alleged to have reused needles across patients, and (5) Trinity's response to drug diversion by health care providers working at Trinity. Id. at 9. It appears to the court that none of these five topics is important to resolving the issue of how the HCV was transmitted. Rather, each of the topics appears to be targeted to information ManorCare might wish to use to support its potential claim for punitive damages, in the event it is allowed to amend its complaint to seek punitive damages. Since there is no current claim for punitive damages, the subject matter areas which ManorCare has specified do not appear to be important to issues at stake. Trinity, in opposing the Kutch deposition, contends that the topic areas which ManorCare identifies are not relevant to any claims at issue. Trinity argues that ManorCare has already deposed seven individuals who are part of Trinity's management or upper management, and that those depositions have consumed a combined total of 67.2 hours. (Doc. #330-2, p. 3). Trinity contends its analysis of those depositions, which ManorCare has not disputed, shows that Kutch's name was discussed in only five responses between two deponents. In Trinity's view, the dearth of mention of Kutch during the other depositions is a “telling sign of just how little involvement and knowledge stands to be obtained from his deposition and the magnitude of harassment [he] stands to endure if subjected to deposition.” (Doc. #330, p. 8). Trinity argues that Kutch does not have the “unique first hand, non-repetitive knowledge” described in Apple Inc. or other case law concerning the apex doctrine. Trinity argues that, because he lacks that knowledge, and because other less intrusive means are available to secure the information ManorCare seeks, there is good cause to issue a protective order. Trinity identifies the myriad of depositions taken to date, and others scheduled in the weeks to come, as less intrusive available means. Trinity argues that ManorCare's extensive discovery amounts to “systemic abuse of the discovery process.” (Doc. #330, p. 15). Discovery to date has been extensive, expensive, and extraordinarily disputatious. Chief Justice John Roberts, in discussing the December 1, 2015 amendments to the Federal Rules of Civil Procedure, addressed counsel's responsibility for efficient discovery: Rule 1 directs that the Federal Rules “should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceedings.” The underscored words make express the obligation of judges and lawyers to work cooperatively in controlling the expense and time demands of litigation—an obligation given effect in the amendments that follow. The passage highlights the point that lawyers–though representing adverse parties—have an affirmative duty to work together, and with the court, to achieve prompt and efficient resolutions of disputes. .... The amended rule states, as a fundamental principle, that lawyers must size and shape their discovery requests to the requisites of a case. Specifically, the pretrial process must provide parties with efficient access to what is needed to prove a claim or defense, but eliminate unnecessary or wasteful discovery. The key here is careful and realistic assessment of actual need. That assessment may, as a practical matter, require the active involvement of a neutral arbiter—the federal judge—to guide decisions respecting the scope of discovery. .... The 2015 civil rules amendments are a major stride toward a better federal court system. But they will achieve the goal of Rule 1—“the just, speedy, and inexpensive determination of every action and proceeding”—only if the entire legal community, including the bench, bar, and legal academy, step up to the challenge of making real change. *7 .... As for lawyers, most will readily agree—in the abstract—that they have an obligation to their clients, and to the justice system, to avoid antagonistic tactics, wasteful procedural maneuvers, and teetering brinksmanship. I cannot believe that many members of the bar went to law school because of a burning desire to spend their professional life wearing down opponents with creatively burdensome discovery requests or evading legitimate requests through dilatory tactics. The test for plaintiffs' and defendants' counsel alike is whether they will affirmatively search out cooperative solutions, chart a cost-effective course of litigation, and assume shared responsibility with opposing counsel to achieve just results. Roberts, C.J., 2015 Year-End Report on the Federal Judiciary at 6-7, 9, 11 (Dec. 31, 2015), available at http://www.supremecourt.gov/publicinfo/year-end/year-endreports.aspx. The court urges all counsel to carefully consider the Chief Justice's viewpoint, and work toward a cost-effective course of litigation in the interests of their clients. Considering the recent rules amendments, it appears to the court that a deposition of Kutch is unlikely to result in significant new information that is important to issues currently at stake. The court is not convinced, however, that Trinity has established sufficient reason to forbid his deposition under the apex doctrine. The court will instead limit his deposition to a total of three hours. Conclusion For the reasons discussed above, ManorCare's motions to compel discovery, (Doc. #285; Doc. #311), are GRANTED IN PART and DENIED IN PART. Trinity's motion for a protective order, (Doc. #331), is likewise GRANTED IN PART and DENIED IN PART. IT IS SO ORDERED. Dated this 6th day of January, 2016. Footnotes [1] Neither party sought an informal conference, as required by Civil Local Rule 37.1, regarding the dispute about the deposition of Trinity's CEO. Nonetheless, the court has considered the issue since it appears unlikely that the dispute would have been resolved at an informal conference. [2] In its motion, ManorCare states that, in addition to the seven individuals whom NDDoH has investigated, it learned through discovery of seven other Trinity personnel suspected of drug diversion. (Doc. #286, p. 5). In reviewing the parties' briefs, the court is able to discern information about only four of the five individuals described above. The court discovered information about a fifth individual—SS—through an in camera review of documents submitted by Trinity. [3] For purposes of this dispute, distinctions in employment status (whether a Trinity employee, working at Trinity under a contract between Trinity and a staffing agency, or a member of Trinity's medical staff) are not relevant. [4] Amendments to the Federal Rules of Civil Procedure took effect on December 1, 2015, and apply to cases pending on that date insofar as is just and practicable. Order of April 29, 2015, Orders of the Supreme Court of the U.S. Adopting & Amending Rules. Even if it were not just and practicable to apply the amended rule in this instance, the court would consider proportionality factors in light of defendant's objection to the discovery requests, pursuant to former Rule 26(b)(2)(C)(iii). [5] ManorCare has not suggested how diversion of drugs that are administered orally might be related to transmission of HCV, so documents concerning only possible diversion of orally administered medications will not be ordered. [6] Previous orders specifically addressed documents concerning CL, JD, RM, and EL. This order does not require that Trinity produce any additional documents concerning those four individuals.