LIFESCAN, INC., et al., Plaintiffs, v. JEFFREY C. SMITH., et al., Defendants ROCHE DIAGNOSTICS CORPORATION, et al., Plaintiffs, v. JEFFREY C. SMITH., et al., Defendants Civil Action No. 17-5552 and , Civil Action No.19-8761 (CCC)(JSA) United States District Court, D. New Jersey Filed February 06, 2023 Counsel Peter C. Harvey, Patterson, Belknap, Webb & Tyler, LLP, New York, NY, Katelyn O'reilly, Lauren Ruth Malakoff, Liza M. Walsh, Peter Joseph Pizzi, Stephen V. Falanga, Christopher Matthew Hemrick, William T. Walsh, Jr., Walsh Pizzi O'reilly Falanga LLP, Newark, NJ, Claudia A. Costa, Gordon & Rees LLP, Florham Park, NJ, for Plaintiffs. GIno A. Zonghetti, Iram Pagan Valentin, Kaufman, Dolowich & Voluck, LLP, Hackensack, NJ, Claudia A. Costa, Gordon & Rees LLP, Florham Park, NJ, Mary Susan Henifin, Buchanan Ingersoll & Rooney, PC, Princeton, NJ, Andrew George Hope, Buchanan Ingersoll & Rooney, P.C., Philadelphia, PA, for Defendant. Cavanaugh, Dennis, Special Master (Ret.) ORDER & OPINION OF THE SPECIAL MASTER JUDGE DENNIS CAVANAUGH, RET. *1 Before the Special Master is a motion filed by Defendant Mercato.[1] Mercato seeks to compel Plaintiffs LifeScan, Inc., Roche Diagnostics Corporation and Roche Diabetes Care, Inc. (“Plaintiffs”) to produce two categories of documents: (1) notes, writings and other materials concerning Plaintiffs’ pre-deposition interviews of four individual Defendants; and (2) documents and communications concerning Plaintiffs’ settlement negotiations with these individuals. In analyzing this motion, the Special Master has reviewed the following: 1. Mercato's letter brief in support of its motion with attached exhibits; 2. Plaintiff's letter brief in opposition to the motion with attached exhibits; and 3. Mercato's letter brief in reply. Additionally, during the course of the status conference held on January 25, 2023, the parties orally argued this motion. For the reasons to be set forth more fully below, it is the finding of the Special Master that Mercato's motion is DENIED. I. Procedural History and Factual Background Since the parties are intimately familiar with the procedural events and facts which form the basis of this litigation, the Special Master will only address those facts and events pertinent to this motion. Plaintiffs LifeScan and Roche manufacture blood glucose test strips (“DTS”) for diabetic patients. The named Defendants are collectively former officers, directors and investors in an entity generally referred to by the litigants as Alliance Medical Holdings LLC (“Alliance”). Also named is Zions First National Bank (referenced in the caption as ZB, N.A., “Zions”). Plaintiffs charge that the former officers, directors and investors in Alliance participated in a fraud which deprived the manufacturers of the full extent of profits derived from the sale of DTS. Mercato was an investor in Alliance and, along with the other Defendants, has been charged with knowingly supporting the Alliance fraud. This particular aspect of the litigation centers on four other individual Defendants who were formerly officers of Alliance. They are Sahily Paoline, chief pharmacy officer; Steven Hadlock, director of pharmacy operations; Blaine Smith, chief revenue officer; and Justin Leavitt, chief financial officer. In early 2020, Plaintiffs’ counsel met privately with each individual Defendant for several hours and discussed this litigation which was then pending. Then, in May and June of 2022, each Defendant was deposed. Approximately six months later, Plaintiffs filed voluntary stipulations of dismissal, without prejudice, as to all four individual Defendants. *2 In October 2022, Mercato served Plaintiffs with discovery demands (interrogatories and a notice to produce) which sought documents and communications concerning the interviews. The demands also sought communications concerning “settling, resolving, not prosecuting, or modifying in any way Plaintiffs’ claims in these actions.” Plaintiffs have refused to produce any notes or other written materials derived from the interviews or any documents and communications arising out of the settlement negotiations. Instead, Plaintiffs have produced “cooperation agreements” between LifeScan and Roche with each individual Defendant. Mercato now moves for an order compelling production. II. Mercato's Arguments A. Documents Relating to Pre-Deposition Interviews. Preliminarily, Mercato argues that any materials generated from the pre-deposition interviews are relevant since the individuals were questioned about critical issues and are also relevant for impeachment purposes to challenge credibility. Mercato says that Plaintiffs do not dispute this material is relevant but instead contend that the materials are protected under the attorney work-product doctrine. Therefore, Plaintiffs will not conduct a search for these documents nor create a privilege log identifying them. Mercato maintains that Plaintiffs are not entitled to withhold any underlying facts developed during the interviews as those facts are separate from an attorney's thoughts or impressions. The work-product doctrine, while it may shelter mental processes of an attorney, is not an absolute bar to discovery of materials prepared in anticipation of litigation, citing In Re Cendent Corp. Sec. Litig., 343 F. 3d. 658, 661-663 (3d Cir. 2003). Instead, work-product may be produced upon a showing that the party seeking discovery has a substantial need and is unable without undue hardship to obtain the substantial equivalent of the materials withheld. Id. Further, facts are not protected from disclosure, only mental impressions, conclusions, opinions or legal theories unless the moving party makes a showing of rare and exceptional circumstances. Id. Therefore, says Mercato, pre-deposition interview notes likely constitute materials prepared in anticipation of litigation but Mercato is still entitled to the facts contained in those materials. Defendants are key fact witnesses who ran Alliance's day-to-day operations and spent hours with Plaintiffs’ counsel discussing the pertinent facts of this litigation. Since the interviews occurred well in advance of the depositions and document production, Defendants’ recollection of the events may have differed from their deposition testimony. Moreover, Plaintiffs are the only parties with access to that information. Therefore, Plaintiffs should be compelled to produce the materials. To the extent that the materials contain attorneys’ mental impressions, appropriate redactions can be made. B. Documents Relating to Settlement Negotiations Mercato says documents and communications concerning settlement negotiations are relevant to establishing witness bias. There is no recognized “settlement privilege” in this Circuit and instead courts in this District require parties seeking settlement materials to “make a heightened, more particularized showing of relevance,” citing Beradino v. Prestige Mgmt. Servs., No. 2:14-cv-3451, 2017 WL 9690965, at *4 (D.N.J. Dec. 8, 2017) and other cases. *3 Mercato says it has met this more particularized showing. The individual Defendants are undoubtedly critical fact witnesses and their testimony will bear directly on Plaintiffs’ claims and Mercato's defenses. Secondly, the timing of their settlements increases the relevance of the underlying communications. These individual Defendants sat for depositions while in the midst of negotiating settlements and then, post deposition, Plaintiffs filed stipulations of dismissal. Accordingly, Mercato is entitled to know what Defendants knew about the status of negotiations when the deposition testimony was rendered. Mercato further argues that the “cooperation agreements” shed no light on the negotiations as of when Defendants were deposed and merely show that the Defendants settled post depositions. Finally, any public policy arguments against disclosure fail to outweigh Mercato's interests in obtaining the communications. Mercato is appropriately seeking information about a settlement brokered between co-defendants and Plaintiffs in which Plaintiffs agreed to drop claims in exchange for evidence that may be used against Mercato, citing Conde v. Open Door Mktg., LLC, 15-cv-04080, 2018 WL 1248094, at *10 (N.D. Cal. Mar. 12, 2018). III. Plaintiffs’ Argument In opposition, Plaintiffs confirm that their outside attorneys indeed conducted interviews with the individual Defendants and asked them questions as to the underlying facts similar to questions later posed at their depositions. Once the depositions were completed, Mercato served the discovery demands at issue. Plaintiffs say that the only responsive communications were the interviews and consequently Mercato was provided information as to the date and location of those interviews. Plaintiffs also produced their executed settlement agreements (presumably meaning the cooperation agreements) with the individual Defendants. Generally, Plaintiffs maintain that the notes their attorneys generated during the course of those interviews and communications regarding settlement negotiations are protected by the attorney work-product doctrine. Additionally, the settlement agreements are presumptively non-discoverable under case law within this District and elsewhere. During the course of oral argument, Plaintiffs indicated that the settlement discussions were prolonged, extensive and involved ongoing confidential communications among counsel. The settlement process included an attempt at mediation during which the parties were assured that these communications would be protected. Plaintiffs also emphasized that the discussions would not have been as free-flowing or ultimately productive had the parties been concerned that their communications could be discoverable. Each aspect of this opposition will be discussed separately. A. Attorney Notes and Materials from Interviews Mercato admits that the notes and other materials from the pre-deposition interviews of the individual Defendants constitute attorney work-product. However, while Plaintiffs in turn concede that the work-product doctrine is not absolute, it can only be overcome if a party shows “it has a substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.” Fed. R. Civ. P. 26(b)(3)(A)(ii). Here, say Plaintiffs, Mercato has failed to show (1) substantial need and (2) undue hardship. In terms of “substantial need,” Mercato can easily obtain factual information about the interviews through depositions and, indeed, the individual witnesses have already been deposed. Moreover, at any point prior to the depositions and even at the current time, since discovery has not closed, Mercato has been free to interview the same individuals. Nevertheless, Mercato has failed to do so and, when given the opportunity to question these Defendants during depositions, Mercato's attorneys chose not to do so. *4 In response to Mercato's argument (which Plaintiffs insist is “speculation”) that Defendants’ recollections may have differed from the time when they were interviewed to the time they were deposed, Plaintiffs say that the Third Circuit has rejected the idea “that the desire to impeach or corroborate a witness’ testimony is sufficient to demonstrate substantial need,” citing In Re Grand Jury Investigation, 599 F. 2d. 1224, 1235 (3d Cir. 1979). Plaintiffs also reject Mercato's suggestion that mental impressions can be redacted as contrary to settled law. That is, a decision to include a fact or detail in notes and the particular characterization chosen by the attorney, itself constitutes the mental impression of an attorney, citing In re Neurontin Antitrust Litig., 02-cv-1390, 2011 WL 253434 (D.N.J. Jan. 25, 2011), aff'd, 02-cv-1390, 2011 WL 2357793 (D.N.J. June 9, 2011). In short, Plaintiffs say Mercato has failed to demonstrate substantial need (itself a disqualifier) and undue hardship. B. Communications Regarding Settlement Negotiations As Mercato concedes, a party seeking to discover settlement negotiations must make a heightened, particularized showing of relevance, citing Ford Motor Co. v. Edgewood Props., 257 F.R.D. 418, 423 (D.N.J. 2009). Moreover, Mercato carries the burden of proof when seeking this information, citing Lesal Interiors v. Resolution Tr. Corp., 153 F.R.D. 552, 562 (D.N.J. 1994). This is so because public policy favors settlement and participants will be unwilling to communicate if their communications regarding settlement are made known. While Mercato cites Conde, in support of the position that the communications are discoverable, Plaintiffs counter asserting that Conde is inapposite as the Northern District of California does not recognize New Jersey's heightened threshold of relevancy for settlement communications. More significantly here, Plaintiffs say that Mercato insists any production must include negotiations between Plaintiffs’ counsel and Defendants’ counsel, not just with Defendants. Finally, Plaintiffs argue the settlement negotiations have no relevance to impeachment or bias should these individuals give future deposition or trial testimony. Plaintiffs insist that the agreements expressly state that the “entire agreement...supersedes and replaces all prior communications, and negotiations [and] understandings[.]” Therefore, any relevance to the earlier negotiations was “completely extinguished when the agreements were signed.” IV. Mercato's Reply Mercato reiterates that it is not seeking Plaintiffs’ counsel's thoughts and impressions but merely facts. Accordingly, this is a “lower standard” and Mercato maintains that it has shown a substantial need and cannot otherwise obtain the information without undue hardship. The individual Defendants are significant witnesses. Given that they were negotiating with Plaintiffs’ counsel at the time of their depositions, Mercato is entitled to know: (1) what information they were willing to exchange; (2) any promises Plaintiffs made; and (3) whether Defendants’ accounts changed along the way. Mercato contends that Defendants gave “scant facts” when deposed so further interviews would be equally unproductive. On the other hand, Plaintiffs possess contemporaneous notes with this information. As to those notes, mental thoughts and impressions can easily be redacted and this practical approach is supported by case law, citing In Re Intel Corp. Microprocessor Antitrust Litig., 258 F.R.D. 280, 293-96 (D.Del. 2008). Therefore, Mercato requests that the notes be reviewed in camera and that any attorney's thoughts or impressions be redacted before production. *5 As to the settlement communications, it is well established that the Third Circuit does not recognize a settlement privilege, citing Ford Motor Company, 257 F.R.D. at 423. While Mercato concedes it is required to make a more particularized showing of relevance, the courts also consider the purpose for which the moving party seeks the materials. “Courts...consider whether the moving party is seeking settlement materials for a purpose FRE 408 prohibits (such as to prove liability) or for a purpose FRE 408 expressly permits (such as to prove bias).” Here, Mercato's intention is to impeach the individual Defendants’ credibility and to show bias, a permitted purpose. The depositions occurred during ongoing settlement talks and it stands to reason that their respective attorneys would inform each client about the status of negotiations. Therefore, communications as to the settlements are the “best evidence” of the then existing status of those discussions. Mercato says it is entitled to the communications so it can fully understand the relationship between Plaintiffs and the individual Defendants given the crucial role those persons will play at trial. V. Review of Cooperation Agreements and Individual Defendants’ Testimony Plaintiffs have attached eight “Cooperation Agreements” between the four individual Defendants and the two Plaintiffs (LifeScan and Roche) as well as excerpts of their deposition testimony. The agreements are identical but for the names of the participants and the financial disclosure forms attached to the agreements. Very briefly stated, in each case, the individual Defendants agreed to provide documentation requested by Plaintiffs that “relates in any manner to the Action” (meaning LifeScan's and Roche's lawsuits). Defendants also agreed to cooperate as to Plaintiffs’ claims against the remaining Defendants “by being truthful in all matters about which he [the defendant] is asked,” to take all actions reasonably requested by Plaintiffs to, among other things, provide sworn testimony “in whatever forum that Plaintiff requires, including for use in support of court filings, at deposition and/or at trial.” The agreements also provide that they are not expressly conditioned “upon the substance of any information or testimony [the defendant] may provide, and cannot be construed to require [the defendant] to testify to or otherwise provide information that is not true or misleading[.]” The parties also agreed that within 30 days after the execution of the agreement, Plaintiffs would file all documents necessary to dismiss, without prejudice, any claims asserted against a Defendant. There is also a recital stating it is the mutual intention of the parties to resolve the controversy and that the controversy “will be resolved by way of a separate substantially similar Settlement and Cooperation Agreement entered into by [the defendant] and [the plaintiff] simultaneously herewith[.]”[2] As to the depositions, the individual Defendants confirmed that they had been interviewed by Plaintiffs’ counsel pre-Covid but were under the impression that settlement negotiations had fallen through, without knowing the reason. Additionally, Mercato's attorney in each case chose not to conduct any examinations of the witnesses. VI. Findings A. Documents Relating to Pre-Deposition Interviews The parties do not fundamentally disagree upon the legal principles upon which this aspect of Mercato's motion must be decided. The parties do, however, take substantially different views as to how those principles should be applied. Nor do the parties disagree that the four individuals whose evidence is at the heart of this motion are knowledgeable about facts which are relevant to this litigation since each of them played notable roles as officers of Alliance, the non-party entity whose existence and actions are the primary subject matter of this lawsuit. *6 Therefore, the Special Master turns to the principles which form the basis of the work-product doctrine. The fulcrum is Fed. R. Civ. P. 26, the rule which sets forth the general provisions regarding discovery. It is specifically Fed. R. Civ. P. 26(b)(3)(A)(ii) that is directly pertinent here. It provides: (3) Trial Preparation: Materials. (A) Documents and Tangible Things. Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representatives (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent). But subject to Rule 26(b)(4), those materials may be discovered if: ... (ii) The party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means. Subsection (B) of the Rule, entitled “Protection Against Disclosure” goes on to say that if the court orders discovery of those materials “it must protect against disclosure of the mental impressions, conclusions, opinions or legal theories of a party's attorney or other representative concerning the litigation.” In this case, there is no need to consider whether the documents were prepared in anticipation of litigation since it is evident that they were prepared during the litigation and because of it. Indeed, Mercato does not contest that the documentation it seeks to compel is anything but attorney work-product. Instead, the movant focuses on another aspect of the Rule. Mercato claims it seeks to obtain documents admittedly prepared in anticipation of litigation because it has a substantial need for those materials to prepare its case and is unable without undue hardship to obtain the equivalent by other means. The Special Master agrees with Plaintiffs’ assessment that the issue here harkens back to the Supreme Court's decision in Hickman v. Taylor, 329 U.S. 495 (1947), from which the current Rule is effectively derived. That is, the notes taken by outside counsel during the course of interviews with the four Alliance officers is protected, quintessential attorney work-product, i.e., “memorandums and statements gathered by [an attorney] in the course of [that attorney's] activities as counsel[.]” Id. at 504. Additionally, even though the work product privilege is not absolute, meaning it is “qualified,” Mercato has failed to show “substantial need and an inability to obtain substantially equivalent materials without undue hardship.” In the circumstances here, the “substantial need” aspect of the Rule fundamentally overlaps with the “undue hardship” aspect. As Plaintiffs argued in their submission and at oral argument, Mercato has completely failed to supply an explanation as to why it has refused to employ any obvious, concrete steps to retrieve the information it seeks other than by way of this motion. In other words, if this information was so important and constituted a substantial need, why have Mercato's attempts to obtain that information been so limited. Mercato, like Plaintiffs, was entirely free at the inception of this litigation (and conceivably even before suit was filed when litigation was anticipated) to conduct interviews with the same four core Alliance personnel Plaintiffs’ counsel sought out and questioned. Indeed, as Defendants note, nothing prohibits a similar set of interviews through the completion of discovery in this litigation. These witnesses still breathe and still talk. Mercato has been in the position to explore the facts known by these witnesses and while their memories of the events might conceivably have been better in 2020 than in 2023, this is speculation and Plaintiffs should not be punished for having interviewed these individuals at a time somewhat closer to the underlying events. *7 Equally unexplained is Mercato's failure to elicit the core facts from the four ex-Alliance officers who sat for their depositions in the late spring of 2022. The excerpts of deposition transcripts provided by Defendants confirm that Mercato's counsel in each instance chose not to question the witnesses when given an opportunity to do so. This appears to have been a tactical decision. The only explanation given by Mercato for refraining from cross-examination has been that the individual Defendants merely “offered scant facts” when deposed and were unlikely to provide more detailed information upon questioning by Mercato's counsel – had counsel chosen to do so. Nowhere does Mercato explain why the individual Defendants could not have been pressed further or asked different questions after they had testified on direct examination when the very same witnesses were present, available and providing testimony under oath. Indeed, the fact that they had “offered scant facts” was all the more reason that these Alliance officers needed to be prompted to supply information about what Mercato considers to be the facts crucial to its defense in this litigation. In short, having had the opportunity to explore the “core facts” through these witnesses over the course of now several years, instead of doing so, Mercato now seeks to circumvent its obligations to elicit discovery by seeking the “homework” conducted by its adversaries. Mercato also argues that Plaintiffs’ attorneys’ notes, having been taken during the interviews in 2020, nevertheless constitute the “best evidence” available of the underlying facts. Mercato fails to explain, however, how attorney notes – notes which likely also contain an attorney's interpretation of, recollection of, and assessment of a witness’ statements – are somehow better than testimony actually elicited from the same witnesses. Moreover, an attorney's thoughts and impressions about a witness’ statements are likely to be closely intertwined with any “facts” elicited. While an attorney's thoughts and impressions could (theoretically) be separated from actual facts elicited from the witnesses, for example during an in camera review, Mercato has failed to establish that it has a substantial need for the materials and could not have obtained the materials without undue hardship. Therefore, in this particular matter, the Special Master finds that Mercato is not entitled to an in camera review during which the “mental impressions, conclusions, opinions or legal theories” could be extricated from the facts contained in the attorneys’ notes. Having failed to satisfy this “lower standard” (as characterized by Mercato), the motion to compel the production of the interview notes is DENIED. B. Documents Relating to Settlement Negotiations In addition to attorney notes regarding the individual Defendants’ interviews, Mercato also seeks all documents and communications concerning Plaintiffs’ settlement negotiations which ultimately led to dismissals. This aspect of Mercato's motion, as both sides state in their submissions, directly touches on the “inherent tension” between Fed. R. Evid. 408, which prohibits the use of settlement discussions to prove liability and Rule 26, which permits liberal discovery. Ford Motor Co. v. Edgewood Properties, Inc., 257 F.R.D. 418 (D.N.J. 2009). When these rules clash, in this District, our courts have held that “parties seeking to discover such communications must make a heightened, more particularized showing of relevance.” Id. at 423 (citing Lesal Interiors, 153 F.R.D. at 562). Put another way, to address the clash between the competing rationales behind the two rules, and to harmonize those rules, the courts in the District of New Jersey require the moving party to make a “particularized showing that the evidence sought is relevant and calculated to lead to the discovery of admissible evidence.” Lesal Interiors, 153 F.R.D. at 562. As a consequence of the requirement that a moving party make a heightened or particularized showing of relevancy, our courts have placed the onus on the party that seeks documents relating to settlement negotiations to meet that criteria. The effect of this is to switch the burden of proof from the party in opposition to the discovery to the party seeking the information. Id. *8 Even if a party can meet the heightened standard, courts in this District are still loathe to compel production of settlement communications. As the court stated in Lesal Interiors, 153 F.R.D. 552, “[e]ven if plaintiff [the moving party] can make a ‘particularized showing’ that the requested documents ‘are relevant and likely to lead to the discovery of admissible evidence,’ before permitting discovery of the settlement documents, this court must go further and determine whether and to what extent the discovery will impact elsewise. The court must balance against a party's asserted interest and need for the documents, the effects that may flow from that discovery.” The Special Master finds that Mercato has failed to meet this heightened standard, i.e., the movant has failed to make a particularized showing that the requested documents are relevant and likely to lead to the discovery of admissible evidence. Everything presented to this Court demonstrates that the cooperation agreements between the two Plaintiffs and the four individual Defendants were the product of extensive, years-long negotiations between the attorneys representing each side. Those attorneys had the expectation – and deserved to have the expectation – that their discussions and any communications reduced to a writing would not, at some later point in time, be scrutinized by anyone who was not a participant in the negotiations. Mercato has failed to make an adequate showing that communications between and among counsel even in a broad sense are relevant to the claims or defenses of the parties. Mercato says it seeks the material to impeach the individual Defendants’ credibility and to show bias but fails to explain how or why the discussions and communications among the attorneys would do so. The moving party also fails to provide a cogent explanation why it is relevant for Mercato “to understand the status of those discussions at the time the Individual Defendants gave their testimony.” Mercato, after all, has been supplied with the cooperation agreements which by themselves could conceivably be used to show that the individual Defendants exchanged their cooperation for dismissals. Mercato has failed to meet its burden of showing that anything else which might have been communicated between the attorneys during the settlement process actually provide different or additional fodder to impeach or show bias as to these former Alliance officers. Furthermore, as noted in Lesal Interiors, if the Court were to permit the discovery of communications as to these particular settlement negotiations, the impact of doing so does not end here. Presumably, in this complicated, multi-party case there will be future efforts to settle the claims of one or both of Plaintiffs and one or more of the Defendants. To allow the settlement communications at issue to be revealed here undoubtedly would have a chilling effect on negotiations and communications between other litigants undermining the settlement process. Therefore, for all of these reasons, Mercato's motion to compel production of communications concerning the settlement negotiations between Plaintiffs and the individuals Defendants is DENIED. VII. Conclusion. For the reasons set forth in this Order and Opinion, Mercato's motion to compel (1) notes, writings and other materials concerning Plaintiffs’ pre-deposition interviews and (2) documents and communications concerning Plaintiffs’ settlement negotiations with the individual Defendants is DENIED. Footnotes [1] “Mercato” is a singular reference to a series of entities with the following names: Mercato Management, LLC; Mercato Partners, LLC; Mercato Partners Growth II GP, LLC; Mercato Partners Growth II, LP; Mercato Partners Growth Affiliates II, LP; Mercato Partners AI II, LP; Mercato Partners Ingram, LLC; and Mercato Partners Ingram Co-Invest., LLC. Throughout this Order and Opinion, these entities will simply be referenced as Mercato. [2] Neither party mentions in their submissions whether the individual Defendants and Plaintiffs executed any additional agreements. Therefore, the Special Master assumes that the only agreements are the cooperation agreements described above.