PHILIPS MEDICAL SYSTEMS NEDERLAND B.V.; PHILIPS NORTH AMERICA LLC; and PHILIPS INDIA LTD, Plaintiffs, v. TEC HOLDINGS, INC.; TRANSTATE EQUIPMENT COMPANY, INC.; PEAK TRUST COMPANY-AK; and ROBERT ANDREW WHEELER, Defendants CASE NO. 3:19-CV-373-MOC-DCK United States District Court, W.D. North Carolina Filed November 23, 2021 Counsel Adaline Hilgard, Christine Morgan, Pro Hac Vice, Afshin Najafi, William Ross Overend, Pro Hac Vice, Reed Smith LLP, San Francisco, CA, Brian T. Phelps, Pro Hac Vice, Jennifer Y. DePriest, Pro Hac Vice, Reed Smith LLP, Chicago, IL, Christopher Robert Brennan, Pro Hac Vice, Gregory D. Vose, Pro Hac Vice, Kirsten R. Rydstrom, Pro Hac Vice, Reed Smith LLP, Pittsburgh, PA, Robert Reed Marcus, C. Bailey King, Jr., Bradley Arant Boult Cummings LLP, Charlotte, NC, for Plaintiffs. J. Christopher Jackson, John T. Kivus, Marie Viola Farmer, Morningstar Law Group, Raleigh, NC, Harrison Mann Gates, Morningstar Law Group, Durham, NC, for Defendant TEC Holdings, Inc. J. Christopher Jackson, John T. Kivus, Morningstar Law Group, Raleigh, NC, Harrison Mann Gates, Morningstar Law Group, Durham, NC, for Defendant Transtate Equipment Company, Inc. Bethany N. Mihalik, Pro Hac Vice, Lora A. Brzezynski, Pro Hac Vice, Faegre Drinker Biddle & Reath LLP, Washington, DC, David W. Higer, Pro Hac Vice, Drinker Biddle and Reath LLC, Chicago, IL, J. D. Schneider, Pro Hac Vice, Faegre Drinker Biddle & Reath, Denver, CO, Thatcher A. Rahmeier, Pro Hac Vice, Drinker Biddle & Reath LLP, Wilmington, DE, Charles E. Raynal, IV, Stephen Vincent Carey, Parker Poe Adams & Bernstein, LLP, Raleigh, NC, Nicholas H. Lee, Parker, Poe, Adams & Bernstein LLP, Charlotte, NC, for Defendant Robert Andrew Wheeler. Ryan Charles Grover, Marla Tun Reschly, K&L Gates LLP, Charlotte, NC, for Defendant Peak Trust Company-AK. Keesler, David C., United States Magistrate Judge ORDER *1 THIS MATTER IS BEFORE THE COURT on “Philips’ Motion for Protective Order Re Deposition Of Philips’ In-House Counsel Douglas McKnight” (Document No. 129). This motion has been referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b), and is ripe for disposition. Having carefully considered the motion and the record, the undersigned will grant the motion. BACKGROUND Plaintiffs initiated this action with the filing of a “Complaint” (Document No. 1) on July 30, 2019. Plaintiffs filed an “Amended Complaint” (Document No. 45) on October 18, 2019. Plaintiffs describe this case as being “about Defendants’ unlawful attempt to become judgment proof on claims by Philips in a separate action.” (Document No. 45, p. 2). The “separate action” is Philips Med. Systems Nederland B.V., et al. v. TEC Holdings, Inc., et al., 3:20-CV-21-MOC-DCK (originally filed July 28, 2017, in the Northern District of Georgia) (the “Lead Case”). Id. The Lead Case alleges that Defendants “misappropriated and infringed Philips intellectual property related to the service of its medical imaging systems and disabled and circumvented Philips security access controls relating to its service software and other information.” Id. The Lead Case was eventually transferred to this Court on January 10, 2020. This case is also related to two other cases pending in this District: Philips North America, et al. v. Dale Dorow and William Griswold, 3:19-CV-272-MOC-DSC (filed June 11, 2019) and Philips North America LLC et al. v. Dustin Jay Zimmerman, 3:19-CV-444-MOC-DSC (filed September 10, 2019) (collectively, the “Employee Cases”). In the Employee Cases, Plaintiffs allege violation of contractual obligations and misappropriation of confidential and trade secret information, among other wrongdoing, against individual Defendants. See (3:19-CV-272, Document No. 1) and (3:19-CV-444, Document No. 1). The instant action addresses alleged “financial and corporate maneuvers by Defendants (the “Scheme”) that ultimately siphoned away ... assets that otherwise would be subject to a forthcoming judgment for Philips in the Georgia Action” or “Lead Case.” (Document No. 45, p. 3). This case asserts claims related to the North Carolina Uniform Voidable Transaction Act, N.C.Gen.Stat. §§ 39-23.4 – 39.23.5; civil conspiracy; Unfair and Deceptive Acts or Practices under N.C.Gen.Stat. § 75-1.1; constructive trust; and for punitive damages. (Document No. 45, pp. 25-33). The Court issued its “Pretrial Order And Case Management Plan” (Document No. 84) on June 5, 2020. The “...Case Management Plan” includes the following deadlines: discovery completion – March 12, 2021; mediation – March 26, 2021; dispositive motions – April 12, 2021; and a trial ready date – August 16, 2021. (Document No. 84, p. 2). The “...Case Management Plan” also includes the following pertinent language: Counsel are directed to initiate discovery requests and notice or subpoena depositions sufficiently in advance of the discovery completion deadline so as to comply with this Order. Discovery requests that seek responses or schedule depositions after the discovery completion deadline are not enforceable except by order of the Court for good cause shown. *2 (Document No. 84, p. 4). The case deadlines in this case, and the related cases, have been revised several times. See (Document Nos. 99, 109, 132). However, fact discovery in this case was due to be completed by October 22, 2021. (Document No. 109, p. 2). Now pending is “Philips’ Motion for Protective Order Re Deposition Of Philips’ In-House Counsel Douglas McKnight” (Document No. 129) filed October 25, 2021. Plaintiffs’ motion seeks to prevent the deposition of its in-house counsel noticed for October 26, 2021. (Document No. 129, p. 2).[1] The pending motion is ripe for review and disposition. See (Document Nos. 130, 137, 138, 141, 142, and 143) STANDARD OF REVIEW Rule 26 of the Federal Rules of Civil Procedure provides that: Parties may obtain discovery regarding 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. Information within this scope of discovery need not be admissible in evidence to be discoverable. Fed.R.Civ.P. 26(b)(1). The rules of discovery are to be accorded broad and liberal construction. See Herbert v. Lando, 441 U.S. 153, 177 (1979); and Hickman v. Taylor, 329 U.S. 495, 507 (1947). A motion for protective order “must include a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action.” Fed.R.Civ.P. 26(c)(1). “The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression or undue burden or expense, including one or more of the following: (A) forbidding the disclosure or discovery; (B) specifying terms ...; (C) prescribing a discovery method other than the one selected by the party seeking discovery; (D) forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters.....” Id. DISCUSSION “Plaintiff's Motion For Protective Order...” asserts that its in-house counsel, Douglas McKnight (“McKnight”), “is responsible for managing this case and does not have any personal knowledge about Defendants’ fraudulent, voidable transfers at issues in this case.” (Document No. 129, p. 2). “McKnight's knowledge about Defendants’ activities flows from what he has learned through discovery in this and related cases.” Id. Plaintiffs’ further assert that they never identified McKnight as an individual likely to have discoverable information in their initial disclosures in this case. Id. *3 In further support of the motion, Plaintiffs argue that: “other means exist to any ascertainable information that could be obtained from Mr. Mc[K]night”; “the information Defendants seek[ ] is overwhelmingly privileged an unimportant to this case”; and that “Mr. McKnight's role as in-house counsel managing the Lead Case and related Philips litigation raises particular concerns regarding the potential disclosure of closely held litigation strategy and other attorney work product.” (Document No. 129, p. 3) (citing Shelton v. American Motors Corp., 805 F.2 1323 (8th Cir. 1986); In re Subpoena Issued to Dennis Friedman, 350 F.3d 65, 70 (2d Cir. 2003); and Navient Solutions, LLC v. Law Offices of Jeffrey Lohman, P.C., 2020 WL 6379233, at *4 (E.D.Va. Sept. 4, 2020)). See also (Document No. 130). In addition, Plaintiffs note that Defendants already moved to compel the deposition of McKnight in the Employee Cases (‘272 and ‘444) shortly before the close of discovery in those cases. (Document No. 130, p. 7). This Court granted those motions to compel, noting that McKnight was “listed in Plaintiff's disclosures as having discoverable information.” Id. See also (3:19-CV-272, Document No. 84 and Document No. 71-4, p. 10) and (3:19-CV-444, Document No. 78 and Document No. 65-4, p. 10). “Although Defendants fought to depose Mr. McKnight in the Individual cases, and were given the opportunity to do so by the Court, they did not proceed with that deposition” in either case. (Document No. 130, p. 8) (citing Document No. 130-1, ¶ 7). In opposition, Defendants contend that McKnight is the only Philips employee they have identified with first-hand, non-privileged information material to the case, and that “Philips’ 30(b)(6) deponent utterly failed to provide adequate testimony.” (Document No. 141, p. 1). Defendants assert that McKnight was included on pre-suit communications, including a letter he signed that allegedly triggered “Defendants’ so-called ‘scheme.’ ” (Document No. 141, p. 3). Defendants further allege that he is the only Philips employee with “full access to discovery in these cases.” Id. In reply, Plaintiffs re-assert that “Mr. McKnight is actively and extensively involved in legal strategy in this case and across all three of the related cases, litigation planning, review and creation of attorney work product, and privileged communications both within Philips and with outside counsel – none of which is discoverable.” (Document No. 142, p. 3). Plaintiffs further assert that contrary to Defendants’ arguments, McKnight's knowledge related to the other pending cases does not have “anything to do with the elements of a fraudulent transfer claim or the relevant time period during which the transfers at the center of this case occurred ... nor does it meet the very high standard required in order to depose opposing in-house counsel.” Id. Under all the circumstances of this case, the undersigned finds that Plaintiff's motion should be granted. Unlike the Employee Cases (‘272 and ‘444), in this case Douglas McKnight was not named in Plaintiffs’ Rule 26 Disclosures. See (Document No. 138-3). Defendants’ opposition brief seems to suggest that because McKnight was listed in the initial disclosures of the Employee Cases, and because the parties allegedly “mutually agreed not to proceed” with further depositions in those cases, then McKnight should now be available to be deposed in this case. If the parties had an agreement about the timing of depositions in the Employee Cases, Plaintiffs listed McKnight as a potential witness in those cases, and the Court ordered that McKnight be compelled to provide deposition testimony in those cases, it is still unclear to the undersigned why Defendants failed to depose him related to those cases, and why yet another motion to compel his testimony is necessary. *4 Although there is significant overlap between the cases, they are distinct cases that have not been consolidated. The undersigned has not delved deeply into the parties’ arguments in the Employee Cases, but it is conceivable that McKnight might have non-privileged, discoverable information in those cases – where he was listed in the initial disclosures – but not in this case. Defendants’ proposed deposition of McKnight in this case, especially after the Court's discovery deadline, is inefficient, and it is inconsistent with the Case Management Order's requirement that counsel “initiate discovery requests and notice or subpoena depositions sufficiently in advance of the discovery completion deadline so as to comply with this Order.” (Document No. 84, p. 4). Defendants do not appear to acknowledge the untimeliness of their proposed deposition or provide good cause for the Court to enforce such deposition testimony after the Court's discovery deadline. (Document No. 141). The undersigned finds there is adequate support for allowing Plaintiffs’ motion for protective order just based on the Case Management Order and the timing of the proposed deposition. However, the undersigned also finds Plaintiffs’ arguments in their briefs most persuasive. In short, it appears that the knowledge Mr. McKnight has about this case comes through his duties as in-house counsel for Plaintiffs, and as such, most, if not all, of that information is likely to be privileged. IT IS, THEREFORE, ORDERED that “Philips’ Motion for Protective Order Re Deposition Of Philips’ In-House Counsel Douglas McKnight” (Document No. 129) is GRANTED. Signed: November 22, 2021 Footnotes [1] Although Defendants have filed a copy of the “...Amended Rule 30(b)(6) Deposition Notice of Plaintiffs” (Document No. 138-2), dated October 20, 2021, for a deposition to be held on October 25, 2021, neither side seems to have filed a copy of a deposition notice for Mr. McKnight.