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 19-8761 (CCC)(JSA) United States District Court, D. New Jersey Filed July 29, 2022 Counsel Peter C. Harvey, Patterson, Belknap, Webb & Tyler, LLP, New York, NY, for Plaintiffs. Brian P. O'neill, Brittany a Manna, Jeffrey Scott Chiesa, Marie L. Mathews, Chiesa Shahinian & Giantomasi PC, Roseland, NJ, Claudia A. Costa, Gordon & Rees LLP, Florham Park, NJ, for Defendant NWV-Alliance-2 LLC. Iram Pagan Valentin, Claudia A. Costa, Gordon & Rees LLP, Florham Park, NJ, Timothy Mark Ortolani Kaufman Dolowich & Voluck, LLP, Hackensack, NJ, for Defendant Jeffrey C. Smith. Claudia A. Costa, Gordon & Rees LLP, Florham Park, NJ, for Defendant David Grant. James S. Richter, Midlige Richter LLC, Basking Ridge, NJ, Ashley Bryne Akapo, Dentons US LLp, New York, NY, Claudia A. Costa, Gordon & Rees LLP, Florham Park, NJ, Marc Brett Schlesinger, Mintz & Gold LLP, NEw York, NY, for Defendant Travis Hughes. Paul A. Carbon, Berkeley Heights, NJ, Claudia A. Costa, Gordon & Rees LLP, Florham Park, NJ, for Defendant Lee H. Rosebush. Christopher Matthew Hemrick, Katelyn O'reilly, Lauren Ruth Malakoff, Liza M. Walsh, Peter Joseph Pizzi, Stephen V. Falanga, William T. Walsh, Jr, Walsh Pizzi O'reilly Falanga LLP, Newark, NJ, Claudia A. Costa, Gordon & Rees LLP, Florham Park, NJ, for Defendant Zions Bancorporation, N.A. James S. Richter, Midlige Richter LLC, Basking Ridge, NJ, Claudia A. Costa, Gordon & Rees LLP, Florham Park, NJ, Kerry C. Donovan, Winston & Strawn LLP, New York, NY, for Defendant Hughes & Company. Cavanaugh, Dennis, Special Master (Ret.) ORDER & OPINION OF THE SPECIAL MASTER JUDGE DENNIS CAVANAUGH, RET. *1 This application before the Special Master consists of another series of discovery disputes between Defendant Zions Bancorporation, N.A. (“Zions” or “Defendant”) and Plaintiffs LifeScan, Inc. and Roche Diagnostics Corporation, Roche Diabetes Care, Inc. (“LifeScan”, “Roche” or “Plaintiffs”). Broadly speaking, Zions asks for an order compelling Plaintiffs to do the following: 1. Designate appropriate custodians; 2. Perform “reasonably adequate” searches for records; and 3. Produce all relevant and discoverable materials. In analyzing this application, the Special Master has reviewed the following: 1. Zions’ brief on discovery disputes and attached exhibits (ECF 571); 2. Plaintiffs’ memorandum of law in opposition and attached exhibits (ECF 574); and 3. Zions’ reply brief and attached exhibits (ECF 575). For the reasons to be set forth below, the Special Master finds that Zions’ motion should be GRANTED in part and DENIED in part. I. Procedural History and Statement of Facts Since the litigants are fully familiar with the facts which form the basis of this lawsuit and of this motion, the Special Master will only briefly address the pertinent procedural and factual events. This lawsuit concerns the distribution, sale and reimbursement of diabetic test strips (“DTS”) manufactured by Plaintiffs. LifeScan and Roche charge that a now defunct entity known as Alliance Medical Holdings, LLC (“Alliance”) through its officers, directors and investors schemed to sell non-retail DTS to patients but were reimbursed by pharmacy benefit managers (“PBMs”) for sales of retail DTS, substantially profiting from the difference. Plaintiffs contend that, as retail DTS manufacturers, they reimbursed the PBMs for rebates paid out to pharmacies to their financial detriment. Essentially, Alliance did this through a series of covertly held pharmacies and distributors which the parties generally refer to as “Alliance-affiliated entities.” As to Zions, Plaintiffs charge that the bank conspired to support this wide-ranging scheme. Zions, on the other hand, who had a lending relationship with Alliance, counters that it suffered a $29 billion loss when that entity filed for bankruptcy. The parties previously submitted a series of discovery disputes which resulted in an Order and Opinion dated October 5, 2021. Among other things, the Order obligated the parties to provide certifications relating to search efforts and set forth the parameters of a proper certification, requiring all parties to describe their respective search efforts with clarity and precision. In November 2021, Plaintiffs provided discovery certifications. LifeScan's certification was signed by an employee, Dan Anderson, while Roche's was signed by its employee, Daniel DiSalvo. Copies of these certifications have been provided. On May 12, 2022, the parties jointly requested leave to present discovery disputes, a request which was granted. II. Zions’ Arguments In the introductory section of Zions’ brief, Defendant sets forth an overview of the issues for which it seeks extensive and multi-faceted relief. While Zions asserts individual issues as to each of the two Plaintiffs, its concerns with both LifeScan and Roche are substantially similar. *2 Zions describes several “overarching problems” which have resulted in the need to file this application. First, Zions says, Plaintiffs’ certifications are deficient. Secondly, Plaintiffs served incomplete answers to supplemental discovery requests. Third, Plaintiffs have refused to undertake reasonable searches for documents. Consequently, Zions seeks “various items of relief.” Zions asks that Plaintiffs should be ordered to: 1. Designate additional more appropriate custodians; 2. Serve appropriately detailed certifications as to the search efforts/protocols from the newly designated custodians; 3. Produce documents for those custodians based on improved searches; 4. Provide more specific, complete answers to supplemental interrogatories; and 5. To do the same as to Zions’ supplemental requests for production. Zions’ position is largely premised upon what it considers deficient certifications submitted by Plaintiffs. Although Zions addresses each certification separately, the claimed deficiencies are similar. Effectively, Zions asserts that the certifications are flawed for a number of reasons. The certifications identify a limited number of departments and custodians, resulting in an overly narrow custodial pool. In LifeScan's case, discovery was collected principally from members of Johnson & Johnson's “Brand Protection Team” while in Roche's case, the custodians were derived from that company's “diversion detection program.” This situation, says Zions, is puzzling given that LifeScan and Roche, substantial corporations, do not premise their operations on one or two departments and therefore there must be other custodians who maintain relevant documents. Zions goes on to describe several other deficiencies but the gist of its position is that certifications fail to provide a detailed description of the steps taken to respond to the document requests and confirm that the search efforts were hampered by the limited number of custodians identified. Moreover, the certifications are deficient because each corporation's representative was not sufficiently knowledgeable as to Plaintiffs’ production of discovery. In the case of Anderson, he only “occasionally” supervised collection and delivery of data. In the case of DiSalvo, he was “merely one of several group members” overseeing Roche's data collection. In line with this, the certifications fail to identify other employees who were involved or provide information to flesh out the certification. Given this, Zions asks for an order compelling Plaintiffs “to identify and designate all proper custodians from other appropriate departments” who can access responsive materials. Zions generally argues that under Fed. R. Civ. P. 26(b)(1), it is entitled to discovery relevant to Plaintiffs’ claims, the rule is construed liberally in favor of disclosure and the rule allows for a broader inquiry during discovery than trial. Citing Rule 34(b)(2)(E), and significant here, a requesting party is entitled to production of electronic records (“ESI”) as they are ordinarily maintained and in a reasonably usable form. Even more significant to this application, one involving the appropriateness of certain custodians, the responding party is entitled “to select the custodians most likely to possess responsive information and to search the files of those individuals.” Citing, Mortgage Resolution Servicing, LLC v. JP Morgan Chase Bank, N.A., 15-cv-0293, 2017 WL 2305398, at *2 (S.D.N.Y. May 18, 2017). While a court generally plays no role in the search design, search tools, search terms or designation of custodians, Zions maintains court intervention is required when search terms are “manifestly unreasonable,” and/or the requesting party “demonstrates that the resulting production is deficient.” Id. *3 Zions concedes that the burden lies with the requesting party to show that a search was inadequate or that relevant documents have been withheld. There must also be a demonstration that the additional requested custodians would provide unique, relevant information different from, not simply duplicative of, information that the requesting party has already produced. In support of Zions’ premise for relief, it details six discovery disputes as to LifeScan and four as to Roche. In order, Zions’ disputes as to LifeScan are as follows: • Zions asserts that LifeScan's reimbursements to PBMs for rebates paid to Alliance pharmacies is a central component of this lawsuit and, therefore, highly relevant and discoverable. However, LifeScan has limited its custodians to members of its Brand Protection Group “despite evidence that additional LifeScan employees from other departments” communicated with PBMs. While LifeScan has produced its contracts with several PBMs, it has not produced communications or emails during the relevant time frame, a fact which Zions says is “incredible.” Pointing to a PowerPoint exchanged between LifeScan employees, one of whom was a member of the sales and contracting group, Zions states this demonstrates that other departments must be staffed by custodians with relevant discovery. This contradicts LifeScan's response to a supplemental interrogatory asserting it was unaware of anyone outside that group who communicated with PBMs concerning Alliance's business practices. Hence, LifeScan either designated the wrong custodians or its search was inadequate. Zions therefore requests an order requiring LifeScan to submit amended certifications and discovery responses to identify additional custodians and to produce all relevant documents maintained by those custodians. • Zions says LifeScan has withheld contracts from its authorized DME distributors and related communications concerning Alliance. These agreements, says Zions, are relevant to LifeScan's allegations, mitigation, statutes of limitation and joinder of other parties. To support this, Zions notes that LifeScan has made “irreconcilable” representations, i.e., it has identified 50 distributors and represented all contracts with those distributors have been produced, yet has only identified a single employee who communicated with them about Alliance. (Donna Anderson of the Brand Protection Group.) Zions maintains that it is unlikely for a company the size of LifeScan to have only one employee assigned to this task. Similarly, the identification of a single contract administrator “for this swath of discovery is inadequate.” Therefore, Plaintiff “must designate appropriate custodians in at least its Sales and Contracting Group... and any other proper department.” • In terms of discovery relating to investigations and lawsuits involving defendant Jeffrey Smith, Zions says LifeScan has refused either to provide Smith-related discovery or a proper certification. In essence, Zions argues that aspect of the LifeScan certification which addresses this discovery is inadequate and LifeScan should be ordered to identify custodians within its legal department or elsewhere in possession of these materials. • Zions maintains that whether LifeScan ever deemed Alliance (or related entities) as ineligible purchasers of DTS is relevant. After initially producing a few communications regarding contracts between LifeScan and Alliance, LifeScan has now advised that no additional responsive materials have turned up. As to this, Zions says LifeScan deliberately chose custodians unaware of past contracts with the Smith entities. Therefore, LifeScan must “un-shroud these individuals and conduct a proper file search.” *4 • Zions asserts that the use and purpose of National Drug Codes (“NDCs”) on DTS products is relevant and it is entitled to discover why and how LifeScan utilized those codes, later rescinded by a federal regulatory provision (21 CFR 801.57). In an effort to explore that issue, Zions served supplemental discovery requests to which LifeScan stated it would not search or produce documents and otherwise objected to or failed to offer a response. Zions requests an order compelling production. • Whether pharmacies owned by PBMs diverted DTS from authorized commerce channels is relevant, i.e., if LifeScan was aware of issues surrounding diversion “because its closest business partners were doing it, then [it] cannot convincingly allege that it was ever actually deceived.” Zions says there has been a “dearth” of responsive materials so “it is clear that relevant documents have been withheld.” Therefore, LifeScan must designate additional custodians (outside the Brand Protection Group) and conduct a targeted search. Zions’ disputes as to Roche are as follows: • Roche refuses to provide discovery on the Alliance bankruptcy. Zions says Roche's counsel recently committed to producing this discovery but none has been forthcoming. Zions relies upon the same arguments to Roche as to LifeScan. • Zions asserts that Letters of Participation (“LOPs”) and agreements with the Smith entities are relevant. Zions points out that Roche had terminated its LOPs with two Smith entities due to mail order sales of DTS outside intended channels. “Any improper purchases...by any of the Smith entities go directly to the business relationship with Roche...” Roche's counsel, however, has advised Zions that the Roche certification relieves it of further document identification. DiSalvo certified that the company had produced three LOPs, but according to Zions, the relevant terms were not implemented in the search. Since the proper terms were absent, Zions seeks an order that Roche provide a new, appropriate certification and any resultant discovery. • As is the case with LifeScan, Zions says Roche used NDC codes without proper FDA approval. In response to supplemental discovery demands, Roche has declined to search for or produce documents and has objected to an interrogatory directed at the coding system. Therefore, Roche should produce any discovery relevant to those demands. • Again, as with LifeScan, Zions says the diversion of DTS products from authorized channels is relevant to Roche. Yet, in response to supplemental requests, regarding diversion of PBM-owned pharmacies in the broader context of fraudulent adjudication, Roche stated it would not search for or produce documents. Hence, Roche should be ordered to designate additional custodians from other departments, including the contract department. III. Plaintiffs’ Argument In opposing this application, Plaintiffs generally argue that this motion seeks to re-litigate issues decided in July 2021 when the parties filed omnibus discovery motions. Plaintiffs contend this is a fishing expedition seeking documents that do not exist, have already been produced or are irrelevant. Plaintiffs say they conducted reasonable searches for and produced all responsive documents that could be located and provided detailed certifications from knowledgeable individuals as to those search efforts. Zions, Plaintiffs insist, is merely dissatisfied with the production but has no basis for an order to compel. To prevail on such a motion, Zions cannot simply rely upon a belief that additional documents must exist. Similarly, as to Zions’ assertion that the wrong or insufficient custodians were designated, it must proffer evidence that Plaintiffs have failed to include a relevant custodian likely to have non-cumulative documents. Yet, according to Plaintiffs, Zions cites only “scant evidence” in support, and the documents cited have been taken out of context. *5 As to a “few issues” presented that are not “recycled” (communications regarding NDC codes and discovery related to contracts with PBMs), Plaintiffs say that this discovery is irrelevant and that Zions cannot show it relates to any claim or defense. LifeScan and Roche take substantially similar positions in describing the discovery efforts they have engaged in thus far, efforts which they say are extensive and responsive to Zions’ demands. LifeScan has produced nearly 50,000 pages from seven different custodians and non-custodial sources. LifeScan reiterates that Johnson & Johnson's Brand Protection Team was the group solely responsible for investigating NDC fraud and is unaware of any individuals outside this group who would have responsive, non-cumulative documents. Using unchallenged search terms – which clearly targeted Alliance-affiliated pharmacies – LifeScan produced responsive documents. When LifeScan became aware of other sources of responsive information, supplemental collections were undertaken. LifeScan says it has produced all distributor and wholesaler contracts, relying upon an employee familiar with this database for such contracts, resulting in a production in excess of 100 contracts. LifeScan says it has also responded to ad hoc requests from Defendants. Roche likewise says it produced over 200,000 pages from 33 different custodians and non-custodial sources. Roche has identified a list of employees or former employees involved in investigating DTS fraud consisting of individuals in its diversion detection program and also identified individuals who communicated directly with Alliance based on its review of Alliance's internal documents. Again, unchallenged search terms were run focusing on Alliance-related pharmacies while Roche also identified non-custodial sources, employing the same terms. This, says Roche, resulted in the production of relevant documents. Plaintiffs assert that Zions, in its July 19, 2021 motion, sought substantially the same relief requested here. The order which resulted obligated the parties to provide certifications as to their respective search efforts. Plaintiffs maintain that the certifications submitted in November 2021 (by Anderson for LifeScan and DiSalvo for Roche) met the terms of the Order and each certifier was adequately knowledgeable about the search efforts. Anderson is LifeScan's chief information security officer and has been since July 2018. He has supervised the collection of data in response to requests from its legal department. DiSalvo, a technical specialist legal IT, has worked in eDiscovery at Roche since 2013 and was involved in the preservation, collection and delivery of data for its legal department. Plaintiffs say that each individual has correctly indicated that no one person at either company personally possessed all of the relevant information. Moreover, until this motion, Zions never raised any substantive concern with the certifications and has failed to present evidence to conclude that employees from any department, other than those identified, are likely to have responsive documents. As to interrogatories served by Zions requesting information about LifeScan employees outside the Brand Protection Team who communicated with PBMs about Alliance, LifeScan responded to these interrogatories in April 2022 by stating that it was not aware of any individuals outside the group who did so and that only one, Anderson, communicated with a DME distributor about Alliance's business practices. The responses also confirmed that LifeScan was unaware of anyone outside the Brand Protection Team that communicated with PBMs or distributors. A similar response was provided by Roche to the same discovery demands. *6 Plaintiffs rely upon the same case law in opposition as Zions cites in its brief. That is, while the scope of discovery is broad, the party bringing a motion to compel has the burden to show that the information is relevant or could lead to admissible evidence, i.e., a party is entitled to non-privileged materials relevant to a claim or defense and proportional to the needs of the case. Additionally, case law does not favor parties seeking to “second guess the responding party's approach to searching for documents.” Where a party has not demonstrated evidence that a party has been “less than frank” in response to a request, an order to compel is inappropriate and the rules only require a reasonable search for responsive information. LifeScan insists it has certified to the reasonableness and adequacy of its search efforts. Zions, on the other hand, is attempting to rely on “supposition and innuendo” to compel identification of additional custodians. LifeScan says its certification identified individuals most likely to have responsive documents and thereafter conducted a further investigation into individuals outside the Brand Protection Group and failed to identify any other potential custodians. All Zions has done here is merely assert that these additional custodians may have some connection to the events at issue, an insufficient basis to support a motion to compel. Zions relies on a single document, a PowerPoint presentation, to suggest that other individuals affiliated with LifeScan communicated with PBMs about Alliance. That is, the PowerPoint presentation (noted previously) sent from Donna Anderson (an identified custodian) to Christopher Stump (and copied to another employee). But, says LifeScan, the same email chain indicates Stump had no direct contact with PBMs regarding Alliance and affirms that only two identified custodians (Anderson and Lisa Smiley) were involved in these communications. LifeScan argues that there is no basis to compel the identification of additional custodians. It notes that after serving its certification in responding to a request from Zions, it also produced documents from another employee, Roy Albiani, and conducted further investigation as to individuals who communicated with distributors and identified Anderson as the only individual to do so. Zions, on the other hand, fails to identify a single individual who might have responsive documents reflecting communication with distributors outside those already identified. As to discovery regarding the “Smith entities,” LifeScan states that the definition of those entities was expressly defined to exclude entities other than Alliance that were owned or controlled by Jeffrey C. Smith. Nevertheless, “[b]ased on the definition that Zions now offers” as to the Smith entities, LifeScan conducted another search and produced responsive documents to these requests. Without a basis for doing so, however, Zions insists that LifeScan put forth custodians unaware of past contracts with the Smith entities but there is no reason to think that the search was inadequate. As to discovery regarding NDC codes, Lifescan says Zions has failed to show how this information relates to any claim or defense in this case. LifeScan maintains that NDCs had not been rescinded by the FDA in 2014 and that the agency has yet to implement the relevant portion of the cited regulation. Furthermore, even if the NDCs had been rescinded, Plaintiffs’ substitution of the retail identifier for the non-retail identifier “would be equally as fraudulent.” Furthermore, there is no reason to believe that any responsive documents exist “related to the use of NDCs for diabetic test strips, as the regulation was not enforced during the relevant time period.” *7 Similarly, LifeScan argues that Zions seeks irrelevant information about diversion by non-parties. The sole support for this is a reference to deposition testimony from Matthew Simas, a non-party witness asserting that PBMs diverted Plaintiffs’ diabetic test strips. LifeScan asserts that the testimony does not support this interpretation but instead alludes to a discussion of an Exhibit, a memorandum prepared for Alliance's board of directors, concerning a pharmacy ownership structure in which Alliance tried to avoid PBMs cancelling contracts and imposing chargebacks. Accordingly, there is no evidence that PBMs were defrauding Plaintiffs by dispensing non-retail product but submitting claims for retail product. Moreover, even if true, Defendants would still be liable for their own fraudulent conduct. Finally, Plaintiffs say that the dispute regarding Alliance bankruptcy documents is not “ripe” as to Roche as it remains willing to consider the production of non-duplicative documents related to this request. IV. Zions’ Reply In reply, Zions charges the following as to each Plaintiff: • Zions asserts that LifeScan has unduly limited its designation of custodians to the Brand Protection Group in terms of communications with PBMs. If LifeScan is truly unaware of other custodians, then it must provide additional certifications identifying individuals who communicated with PBMs about Alliance and how it screened members of the sales and Contracting Group and determined which departments would have proper custodians. In a footnote, Zions says Plaintiffs should provide an inventory of their other departments’ structure. • As to discovery regarding LifeScan's communications with distributors, Zions says that Plaintiff improperly limited its document custodians to two individuals (Anderson and Neilson) and reiterates its position that it doubts only one person at J&J communicated with the distributors. Therefore, LifeScan should “describe in detail the process or protocol it used to vet its custodians.” • As to investigations of and lawsuits against Jeffrey Smith by LifeScan, Zions says that Plaintiff has not designated proper custodians to perform searches and that the company's legal department “would seem most likely to have information on investigations.” • As to agreements allowing the Smith entities to purchase DTS from distributors, Zions repeats its arguments that the custodians were too limited. • As to discovery regarding NDCs on LifeScan products, “irrespective of the vitality” of the regulations, LifeScan's use of NDCs is relevant as to its fraud claims since this could establish that fraudulent coding practices and claims in fact occurred. • As to diversion by PBM-owned pharmacies, Zions says this information is relevant since it touches on LifeScan's awareness of such practices and directly impacts Zions’ defenses including statute of limitations and damage mitigation. The fact that LifeScan cannot inventory any discovery on this issue, despite identifying its Brand Protection Group as custodians, supports Zions’ contention that the search strategy was poorly developed. • As to Roche's failure to provide discovery on Alliance since it is not “ripe,” Zions counters that the matter is ripe for resolution now. • As to Roche's agreement and regarding the purchase of DTS products from distributors, Zions says that the termination of LOPs between Roche and the Smith entities is relevant since it relates to Plaintiffs’ knowledge of elicit commercial practices and Zions’ defenses. • As to Roche's refusal to produce communications regarding NDCs and discovery on alleged diversion, Zions relies on its arguments (regarding LifeScan) set forth above. V. Review of Plaintiffs’ Certifications Given that Zions premises much of its arguments on deficiencies with the certifications submitted on behalf of LifeScan and Roche, the Special Master will address those certifications and briefly summarize their contents. *8 The LifeScan certification was signed by Dan Anderson, Chief Information Security Officer. He says he “occasionally supervised the collection and delivery of data as instructed by members of the legal department. He states that no single individual has been responsible for collecting, reviewing and processing documents in this case and that the information contained in the certification was “learned from many individuals.” LifeScan was a subsidiary of Johnson & Johnson when the case began. Anderson states that three custodians from J&J's “Brand Protection Team” (Donna Anderson, Lisa Smiley and Susan Liu) were identified because they were responsible for investigations into NDC fraud involving LifeScan. “Outside of the Brand Protection Team, LifeScan is unaware of other individual custodians likely to possess unique non-privileged documents[.]” The three custodians’ documents were then transferred to an eDiscovery vendor. Search terms were run and over 20,000 documents were identified and provided for attorney review. There is also a supplemental collection of documents for an extended time period resulting in the collection of 12 emails. Anderson also identifies four other individuals (Leanne Lund, Petra Nelson, Meredith Vornholt and Margie Neilson) whose mailboxes were searched since they were either familiar with certain agreements between LifeScan and Alliance or, in the case of Neilson, because of her role as contract administration manager, which resulted in the production of 106 distributor contracts. The certification also states that LifeScan produced the stock and asset purchase agreement containing a general rights transfer provision and that LifeScan is not aware of any additional communications or agreements relating to the Alliance litigation or sale of LifeScan. The Roche certification is signed by Daniel DiSalvo, Technical Specialist Legal IT, a member of the group whose role is to preserve, collect and deliver data as instructed by members of the legal department. He too says no individual was responsible for the process of locating and producing responsive documents and the certification was “based on what I have learned from many individuals” involved in the process. DiSalvo says he understands that Roche identified two categories of potential custodians – individuals who communicated with Alliance and individuals who worked on Roche's diversion detection program charged with investigating test strip fraud. Roche located email inboxes belonging to these custodians, thereafter transmitting the contents to its vendor. Search terms set forth in four appendices were then run as to the custodial and non-custodial documents which might be relevant. The process included “d-duplication” of repetitive documents. Roche then reviewed the documents and produced all non-privileged documents in three categories. Additionally, targeted collections were done for price lists, raw data reflecting rebates paid to PBMs on Alliance claims, and contracts/amendments with PBMs arising from insurance claims filed by Alliance's affiliated pharmacies. Finally, three agreements regarding the sale of DME strips were produced. The certification does not list the names of any individuals who were said to be custodians. VI. Analysis The Special Master finds that Zions’ principle argument as to a number of the disputes can be succinctly stated as follows: We charge that Plaintiffs’ discovery responses are inadequate since they have failed to choose the appropriate custodians. Had Plaintiffs done so, more discovery would have emerged. In short, Zions asserts that while Plaintiffs may have produced relevant documents in possession of their designated custodians, Plaintiffs chose the wrong (or inadequate number) of those custodians. *9 In reviewing each sides’ submissions, it is evident to the Special Master that the parties do not in any sense disagree on the law governing the resolution of this aspect of Zions’ motion. Indeed, the litigants essentially cite the same precedent in support of their respective arguments as to the designation of the custodians but reach different conclusions as to their application of that precedent to the facts here. As the parties point out, in recent years, our courts have been asked to address issues relating to custodial searches in complex litigation, such as this, where many of the responses to production requests are dependent upon a search of electronically stored information (“ESI”). They have done so in the context of the Federal Rules of Civil Procedure and the case law interpreting those rules. As the litigants agree, the Rules provide that a party may obtain discovery regarding any “non-privileged matter that is relevant to any party's claim or defense and proportional to the needs of the case.” Fed. R. Civ. P. 26(d)(1). Our Rules also require that a court take into consideration several factors – the importance of the issues at stake, amount in controversy, the parties’ relative access to information, the parties’ resources, the importance of the discovery in resolving issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Id. Our Rules allow broad and liberal discovery. Pacini v. Macy's, 193 F. 3d 766, 777-78 (3d Cir. 1999). Importantly, Rule 26 is to be construed liberally in favor of disclosure since relevance is a broader inquiry at the discovery stage than at trial. United States ex rel. Simpson v. Bayer Corp., 05-cv-3895, 2021 WL 1989914, at *6 (D.N.J. Feb. 11, 2021), report and recommendation adopted sub nom. United States ex rel. Simpson v. Bayer A.G., 05-cv-03895, 2021 WL 1986457 (D.N.J. May 17, 2021). In cases where the party seeking discovery demonstrates that the information sought is relevant to the subject matter and may lead to admissible evidence, discovery should be provided. Caver v. City of Trenton, 192 F.R.D. 154, 159 (D.N.J. 2000). Our Rules specifically address ESI. That is, a party may serve a request to produce any designated document or to produce electronically stored information. Fed. R. Civ. P. 34(a)(1)(A). Furthermore, a requesting party “is entitled to production of ESI as it is ordinarily maintained or in a form that is reasonably usable.” Fed. R. Civ. P. 34(b)(2)(A). Our courts have also been confronted with issues as to discovery demands in the context of ESI maintained by the parties’ custodians. In circumstances where the requesting party is dissatisfied with ESI discovery responses obtained through a custodial search, our courts have consistently placed a noticeably heavy burden on the propounder to demonstrate that the custodial choices (the individuals or entities whose records were accessed and reviewed) were deficient or lacking. That is, our courts have routinely concluded that the producing party has “the best knowledge as to how documents have been preserved and maintained” and as a consequence, it is the producing party who is “in the best position to determine the method by which [it] will collect documents.” Ford Motor Co. v. Edgewood Properties, Inc., 257 F.R.D. 418, 427 (D.N.J. 2009). In other words: Absent agreement among the parties,...a responding party is entitled to select the custodians most likely to possess responsive information and to search the files of those individuals. Mortgage Resolution Servicing, LLC v. JPMorgan Chase Bank, N.A., 15-cv-0293, 2017 WL 2305398, at *2 (S.D.N.Y. May 18, 2017). *10 Where, as here, a moving party seeks to compel searches by additional custodians, our courts have stressed “the requesting party is second-guessing the responding party's representation that it conducted a reasonable inquiry for responsive information, and in either case [searching for ESI or paper documents], the burden appropriately lies with the requesting party to show that the responding party's search was inadequate.” Enslin v. Coca-Cola Co., 2:14-cv-6476, 2016 WL 7042206, at *3 (E.D.Pa. June 8, 2016), citing Scott C. v. Bethlehem Area Sch. Dist., 00-cv-642, 2002 WL 32349817, at *1 (E.D. Pa. July 23, 2002). Here, Zions correctly and forthrightly concedes that courts normally play no role in the search design, search tools, search terms or designation of custodians unless the choices of those items are “manifestly unreasonable,” or the requesting party “demonstrates that the resulting production is deficient”. See, Zions’ brief, p. 13 and Mortgage Resolution Servicing, 2017 WL 2305398. Indeed, the requesting party must show that the responding party “either withheld relevant documents or failed to conduct a reasonable search.” See Zions’ brief at p. 14 and Winn-Dixie Stores, Inc. v. E. Mushroom Mktg. Coop., 15-cv-6480, 2020 WL 3498161 (E.D.Pa. June 29, 2020). Moreover, the requesting party must be able to articulate a basis for the court to find that ESI in the possession of these additional or newly designated custodians would be different from and not simply duplicative of, information that the responding party has already produced. Enslin, 2016 WL 7042206, at *1. Enslin, a case with similar facts and issues, is rather instructive here. Enslin concerned a suit against a large corporation, Coca-Cola, and centered on a series of discovery disputes initially resolved in an omnibus discovery order. However, the plaintiff thereafter moved for reconsideration as to one of those disputes – the defendant's choice of its designated ESI custodians, such as the case here. Coca-Cola had identified eight key custodians likely to possess responsive ESI and had conducted a search for that data. Dissatisfied with the number of custodians chosen, the plaintiff moved to compel a search from an additional 38 individual custodians as well as ESI in the custody of four departments and committees of the company. Citing its own prior order, the court in denying this relief, emphasized that a requesting party, as noted above, must be able to articulate a basis for a court to find that the additional custodians possessed unique information. Analogizing a search for ESI with a search for paper documents, the court, as quoted, found that compelling defendant to designate more custodians would constitute second guessing and that much more was required by the movant to overcome a party's representation that its search was indeed adequate. The court also emphasized that the Federal Rules of Civil Procedure require only a reasonable search for responsive information pursuant to a “reasonably comprehensive search strategy,” citing Treppel v. Biovile Corp., 233 F.R.D. 363, 374 (S.D.N.Y. 2016). In Treppel, the court stated: [T]here is no obligation on the part of a responding party to examine every scrap of paper in its potentially voluminous files, “and ‘[i]n an era where vast amounts of electronic information is available for review, ...[c]ourts cannot and do not expect that any party can meet a standard of perfection.” Pension Comm. of Univ. of Montreal Pension Plan v. Banc of Am. Sec., 658 F. Supp. 2d 456, 461 (S.D.N.Y. 2010). *11 Furthermore, the court in Enslin also addressed the plaintiff's contention (and the similar contention voiced by Zions in this application) that certain employees of Coca-Cola whose names appeared in discovery documents had responsive information that should be subject to a search. In response, the court noted the fact that a person may have some connection to the events in question does not automatically mean that this person must be included as an ESI custodian. Citing Fort Worth Emps. Ret. Fund v. J.P. Morgan Chase & Co., 297 F.R.D. 99, 107-108 (S.D.N.Y. 2013), the court stated, “to justify an order compelling a responding a party to search for the records of additional custodians, the requesting party ‘must demonstrate that the additional requested custodians would provide unique relevant information not already obtained.’ ” Enslin, 2016 WL 7042206, at 3. In short, as our courts have held under similar circumstances, a party claiming that an adversary's custodial designations are inadequate or incomplete faces a very heavy burden to overcome a presumption that the responding party is in the best position to choose its custodians. It is the finding of the Special Master that the plaintiffs have failed to adequately demonstrate that either LifeScan or Roche deliberately or, for that matter, negligently failed to designate appropriate custodians in possession of relevant documentation. The Special Master is not in the position to second guess why Plaintiffs’ respective determinations of custodians with relevant knowledge principally consisted of employees assigned to either the Brand Protection Team (in the case of LifeScan) or the Diversion Detection Program (in the case of Roche) or were individuals who were assigned to other departments in each corporation and had some knowledge relevant to the discovery demands. The Special Master also finds that Zions has failed to meet its burden by adequately demonstrating that the responding parties either withheld relevant documents or failed to conduct a reasonable search. The certifications submitted by the Plaintiffs’ respective declarants while not voluminous in detail, adequately describe the custodial search efforts and were signed by individuals who appear to occupy positions in which they are responsible for and knowledgeable about corporate document retrieval. It is reasonable in each case for Plaintiffs’ declarants to have stated that the information contained in the certifications were derived from information provided by others in each company since it is highly unlikely that any single individual could possess this information. But more importantly, there is nothing set forth in either certification which reasonably suggests that the search efforts were deficient or that the efforts were designed in such a way to deliberately sidestep the identification of custodians possessing relevant information. Additionally, Zions’ reliance upon the PowerPoint presentation previously described does not, in the Special Master's opinion, demonstrate anything that approaches a “smoking gun” demonstrating an effort to “deep-six” knowledgeable custodians. Indeed, as Plaintiffs emphasize, a full reading of that email string confirms that the only two individuals directly communicating with PBMs about Alliance were custodians previously identified by LifeScan. And, as the court noted in Enslin, 2016 WL 7042206, the fact that an individual may have some connections to the events at issue does not require that the person must be included as an ESI custodian. Given these findings, the Special Master will DENY Zions’ requests for an order (1) to compel Plaintiffs’ to designate additional, more appropriate custodians; (2) to compel Plaintiffs’ to serve detailed certifications as to the search efforts from any newly designated custodians; and (3) to produce documents from those custodians based on improved searches. Accordingly, the Special Master denies any aspect of this motion contingent upon Plaintiffs designating additional custodians. *12 In addition to seeking an order compelling the designation of new custodians and the production of information flowing from those designations, Zions’, as noted previously, has sought other relief emanating from certain discovery disputes. The resolution of those disputes will be discussed concisely below. Zions asserts that it is entitled to discovery as to how LifeScan and Roche utilized NDC codes. Plaintiffs object by arguing that this information and documentation has no bearing on the claims or defenses in this action. Additionally, Plaintiffs assert that the code regulations although promulgated by the Food and Drug Administration (“FDA”), were never actually enforced. Accordingly, Plaintiffs have refused to respond to Zions’ discovery demands regarding NDCs. It is the Special Master's finding that a significant element of Plaintiffs’ allegations as to the Alliance defendants rely upon a claim that those NDC codes were disguised or manipulated. Accordingly, discovery as to how those codes were employed by Plaintiffs’ as diabetic test strip manufacturers is broadly relevant to the claims which underlie this lawsuit. Pursuant to Rule 26, the Special Master concludes that such discovery is relevant or may lead to the discovery of relevant evidence. Accordingly, Zions’ request for production of discovery relating to NDC codes is GRANTED as to both LifeScan and Roche. Zions asserts that Roche has inexplicitly refused to provide discovery on the Alliance bankruptcy and while its counsel recently committed to producing this type of discovery, no materials have been produced. The Special Master finds that discovery relating to the Alliance bankruptcy is clearly relevant to the issues which underlie this lawsuit and should be produced. Therefore, to the extent that Roche is in possession of discovery relevant to Zions’ demands, such discovery must be produced. Similarly, Zions contends that it has been stymied in obtaining letters of participation or similar agreements between Roche and the Smith entities. This is significant, says Zions, since Roche terminated its LOPs with two Smith entities due to mail order DTS sales out of intended channels. According to Zions, Roche has taken the position that the submission of Daniel DiSalvo's certification, in which only a small number of agreements are referenced, relieves it of further document identification. Zions counters by asserting that “it does not appear” from this certification or attached exhibits that the terms “Letter of Participation” or “LOP” were implemented in the search and, given that only three of these agreements were produced, whether the search was reasonable “remains an open issue.” As was the case with regard to the identification of appropriate custodians, in this instance, Zions is effectively requesting the court to second guess the method by which an ESI search was conducted without adequate evidence that the search was deficient. Moreover, the Special Master cannot compel a party to produce documentation which it effectively states does not exist. Accordingly, this request is DENIED. Zions asserts that Roche failed to produce discovery as to alleged diversion by PBMs of DTS products from authorized commercial channels. Zions had served a supplemental production notice regarding this diversion to which Roche stated that the company will not engage in a search for or produce these documents. Although this is unclear from the opposition submitted, it appears that both Plaintiffs have taken the position that there is no evidence to support Zions’ theory that PBMs were defrauding Plaintiffs by dispensing non-retail product but submitting claims for retail products. Furthermore, say Plaintiffs, even if so, the fact that other entities (the PBMs) were involved in a similar alleged scheme is not relevant to the claims or defenses here. *13 Although this particular issue has not been briefed with any clarity by either party, the Special Master finds that this element of discovery may indeed be relevant to Zions’ defenses, “including mitigation, statute of limitations, unclean hands and third party liability.” In other words, if Plaintiffs were aware of and addressed similar schemes conducted by entities (PBMs, pharmacies) other than those related to Alliance, it may bear on Plaintiffs’ allegations and Zions’ defenses in this lawsuit. It is not clear, however, to the Special Master whether Plaintiffs are taking the position that no such documentation exists or, alternatively, that the documentation is irrelevant and it is not discoverable due to the absence of relevancy. With that said, the Special Master finds that if such documentation exists, Plaintiffs are compelled to respond and GRANTS this aspect of Zions’ application. Finally, there is a dispute between Zions and Roche regarding documents from the Alliance bankruptcy to which Roche asserts that production of discovery is “not ripe” but is willing to consider “production of non-duplicative documents related to this request.” Apparently, the notion that such discovery is “not ripe” arises out of Roche's assertion that it offered to meet and confer on this issue, but Zions instead moved forward with this motion. Certainly, discovery relating to the Alliance bankruptcy is relevant here and should be produced as part of ongoing discovery. Accordingly, this aspect of Zions’ motion is GRANTED and Roche is ordered to produce all non-duplicative documents related to this request.[1] VII. Conclusion For the reasons previously set forth, Zions’ motion as to these outstanding discovery disputes is GRANTED in part and DENIED in part. As to any aspect of this Order which compels production of documents, the Plaintiffs are ordered to produce that documentation within forty-five (45) days of the date of this Order. Footnotes [1] By “non-duplicative,” it seems that Plaintiffs (both LifeScan and Roche) contend that they have already produced a substantial number of documents relating to the Alliance bankruptcy.