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, 19-8761 (CCC)(JSA) United States District Court, D. New Jersey Filed July 11, 2024 Counsel Peter C. Harvey, Patterson, Belknap, Webb & Tyler, LLP, New York, NY, for Plaintiffs LifeScan, Inc. in No. 17-5552, Roche Diagnostics Corporation in No. 19-8761, Roche Diabetes Care, Inc. in No. 19-8761 Iram Pagan Valentin, Gino A. Zonghetti, Kaufman, Dolowich & Voluck, LLP, Hackensack, NJ, Claudia A. Costa, Gordon & Rees LLP, Florham Park, NJ, for Defendant Jeffrey C. Smith in Nos. 17-5552, 19-8761. Claudia A. Costa, Gordon & Rees LLP, Florham Park, NJ, for Defendant David Grant in No. 19-8761. Brian P. O'Neill, Brittany A. Manna, Jeffrey Scott Chiesa, Marie L. Mathews, Ronald Lawrence Israel, Chiesa Shahinian & Giantomasi PC, Roseland, NJ, Christopher J. Borchert, Alston & Bird LLP, New York, NY, Claudia A. Costa, Gordon & Rees LLP, Florham Park, NJ, for Defendant Pritzker Group Venture Capital LLC in Nos. 17-5552, 19-8761. Kyle Edward Vellutato, Joseph Marsico, O'Toole Scrivo LLC, Cedar Grove, NJ, for Defendant Alison Wistner in Nos. 17-5552, 19-8761. Brian P. O'Neill, Brittany A. Manna, Jeffrey Scott Chiesa, Marie L. Mathews, Ronald Lawrence Israel, Jeanelly Nunez, Chiesa Shahinian & Giantomasi PC, Roseland, NJ, Christopher J. Borchert, Alston & Bird LLP, New York, NY, Claudia A. Costa, Gordon & Rees LLP, Florham Park, NJ, for Defendant Adam Koopersmith in Nos. 17-5552, 19-8761. 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 Defendant N.A. ZB in No. 17-5552, Zions Bancorporation, N.A. in No. 19-8761. James S. Richter, Midlige Richter LLC, Basking Ridge, NJ, Ashley Bryne Akapo, Dentons U.S. LLP, New York, NY, Marc Brett Schlesinger, Anchin Block & Anchin LLP, New York, NY, Claudia A. Costa, Gordon & Rees LLP, Florham Park, NJ, for Defendant Travis Hughes in Nos. 17-5552, 19-8761. James S. Richter, Midlige Richter LLC, Basking Ridge, NJ, Claudia A. Costa, Gordon & Rees LLP, Florham Park, NJ, for Defendants Hughes & Company, Hughes & Company Investment Partners, LLC, Kesman Hughes & Company, LLC, HS Medsource Holdco, LLC in No. 17-5552. 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 Defendants Hughes & Company, Hughes & Company Investment Partners, LLC, Kesman Hughes & Company, LLC, HS Medsource Holdco, LLC in No. 19-8761. Christopher J. Borchert, Jenny R. Kramer, Reade William Seligmann, Alston & Bird LLP, New York, NY, Claudia A. Costa, Gordon & Rees LLP, Florham Park, NJ, for Defendants Mercato Management, LLC, Mercato Partners Growth II, L.P., Mercato Partners Growth II GP, LLC, Mercato Partners Growth Affiliates II, L.P., Mercato Partners AI II, L.P., Mercato Partners Ingram, LLC, Mercato Partners Ingram Co-Invest, LLC in Nos. 17-5552, 19-8761. Christopher J. Borchert, Jenny R. Kramer, Reade William Seligmann, Alston & Bird LLP, New York, NY, Marie L. Mathews, Chiesa Shahinian & Giantomasi PC, Roseland, NJ, Claudia A. Costa, Gordon & Rees LLP, Florham Park, NJ, for Defendant Mercato Partners, LLC in No. 17-5552, 19-8761. Brian P. O'Neill, Brittany A. Manna, Jeffrey Scott Chiesa, Marie L. Mathews, Ronald Lawrence Israel, Jeanelly Nunez, Chiesa Shahinian & Giantomasi PC, Roseland, NJ, Claudia A. Costa, Gordon & Rees LLP, Florham Park, NJ, for Defendants Jabodon PT Company, NWV-Alliance LLC, NWV-Alliance-2 LLC in No. 17-5552. 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 Defendants NWV-Alliance LLC, NWV-Alliance-2 LLC in No. 19-8761. Brian P. O'Neill, Brittany A. Manna, Jeffrey Scott Chiesa, Marie L. Mathews, Ronald Lawrence Israel, Chiesa Shahinian & Giantomasi PC, Roseland, NJ, Claudia A. Costa, Gordon & Rees LLP, Florham Park, NJ, for Defendant Jabodon PT Company in No. 19-8761. Christopher Charles Loeber, Pryor Cashman LLP, New York, NY, for Defendant Justin Leavitt in Nos. 17-5552, 19-8761. David Grant, Lehi, UT, Pro Se in No. 17-5552. Paul A. Carbon, Margolis Edelstein, Berkeley Heights, NJ, Claudia A. Costa, Gordon & Rees LLP, Florham Park, NJ, Kyle L. Wu, Margolis Edelstein, Philadelphia, PA, for Defendant Lee H. Rosebush in No. 19-8761. Cavanaugh, Dennis, Special Master ORDER & OPINION OF THE SPECIAL MASTER JUDGE DENNIS CAVANAUGH, RET. AS TO MERCATO'S MOTION TO COMPEL PLAINTIFFS TO RESPOND TO INTERROGATORIES AS TO DOCUMENT PRESERVATION EFFORTS *1 This Order and Opinion arises from a motion filed by the Mercato Defendants (“Mercato” or “Defendant”)[1]. The movant requests that the Special Master compel Plaintiffs to respond to interrogatories concerning their document preservation efforts. In considering and then deciding this motion, the Special Master has reviewed the following items: 1. Mercato's brief and exhibits in support of its motion; 2. Plaintiffs’ opposition and supporting exhibits; and 3. Mercato's reply. For the reasons set forth below, it is the finding of the Special Master that Mercato's motion is GRANTED within the parameters described in this Order and Opinion. I. Procedural History and Factual Background Writing again principally for the benefit of the parties, the Special Master will only address those procedural and factual events pertinent to this motion. This litigation consists of two lawsuits which have been coordinated for discovery purposes but not consolidated. The actions arise out of what the parties have called the “Alliance fraud,” a fraud centering on the distribution, sale, and reimbursement of diabetic test strips (“DTS”) manufactured by Plaintiffs, LifeScan, Inc. (“LifeScan”) and Roche Diagnostics Corporation/Roche Diabetes Care, Inc. (“Roche”). Plaintiffs charge that a now-bankrupt entity known as Alliance Medical Holdings LLC (“Alliance”) through its officers, directors, investors and lenders created a fraudulent scheme to sell not for retail (“NFR”) strips to diabetic patients but received reimbursement from pharmacy benefit managers (“PBMs”) for higher priced retail strips, profiting substantially from the difference. In order to conduct this scheme, Alliance created a network of covertly owned or operated pharmacies which manipulated the National Drug Codes (“NDCs”) printed on boxes of the strips. Plaintiffs contend that they were damaged by paying excessive rebates to PBMs for the higher priced retail strips which were submitted as NFR strips. Mercato was one of Alliance's investors. Plaintiffs charge that this entity, along with the other defendants, was knowledgeable about the Alliance fraud and profited from the scheme. As a defense, Mercato and the other defendants charge that LifeScan and Roche learned of Alliance's fraudulent conduct years before bringing suit in violation of the applicable statute of limitations. The Special Master has been assigned to manage discovery including resolution of disputes between and among the parties. This particular impasse has its origin on February 28, 2024, when Mercato served a third set of interrogatories on both Plaintiffs. The interrogatories were addressed at LifeScan's and Roche's respective document preservation efforts. In responding, Plaintiffs serially objected to the interrogatories – Roche on March 29, LifeScan on April 19 – and, according to Mercato, “declined to provide substantive responses to any of the individual interrogatories.” Mercato served ten identical interrogatories on both Plaintiffs. *2 Mercato now moves for an order compelling Plaintiffs to provide written discovery responses which, Defendant asserts, is the most efficient and least burdensome way for Plaintiffs to provide this information. II. Mercato's Argument Mercato states that the interrogatories contain narrow requests for specific information about Plaintiffs’ document preservation efforts. Plaintiffs objected on the basis of attorney-client privilege, on the grounds that the interrogatories were untimely served, and also objected “to the extent the information sought can be obtained through [Plaintiffs’] designated 30(b)(6) corporate representative depositions.” At a meet and confer conducted in mid-April, Plaintiffs insisted that they did not need to respond because the interrogatories were served after October 24, 2023, the deadline for service of fact discovery. Despite showing Plaintiffs documents revealing deficiencies in their preservation efforts, Plaintiffs stood on their objections and declined to provide substantive responses. Mercato argues that it is “black letter law” in this District that litigants are entitled to know which categories of electronically stored information (“ESI”) employees were instructed to preserve and collect, including when and to whom a litigation hold notice was issued, citing Boyington v. Percherson Field Servs., LLC, No. 3:14-CV-90, 2016 U.S. Dist. LEXIS 142384, at *36 (W.D.Pa. Oct. 14, 2016) and Major Tours, Inc. v. Colorel, Civil No. 05-3091, 2009 U.S. Dist. LEXIS 68128, at *7 (D.N.J. Aug. 4, 2009). A party's discovery obligations do not end with the implementation of the hold. Counsel must oversee compliance, monitoring a party's efforts to retain and produce relevant documents, citing Arteria Prop. Pty Ltd. v. Universal Funding V.T.O., 05-cv-4896, 2008 U.S. Dist. LEXIS 77199, at *14 (D.N.J. Oct. 1, 2008). Accordingly, Mercato is entitled to know basic facts surrounding Plaintiffs’ preservation efforts, facts which are significant since Mercato intends to show Plaintiffs’ claims are time-barred. Plaintiffs’ objections state that the information sought could be obtained through the depositions of the parties’ corporate representatives. But Mercato says efforts to do so have failed. Mercato's deposition notice contains specific topics regarding document preservation to which Plaintiffs did not object. Nevertheless, neither LifeScan's nor Roche's corporate representatives were able to answer rudimentary questions as to litigation-hold notices and document preservation. Mercato says that LifeScan's single corporate representative was unable to provide the date when LifeScan first implemented a litigation hold and the deponent was not an employee at the time of these events. Roche's single representative was also unable to provide meaningful information, such as who received notice or what steps were taken to preserve documents. Effectively, both witnesses were relying on their own personal experience and had not been prepared as Rule 30(b)(6) witnesses. Finally, Mercato asserts that Plaintiffs’ document deficiencies highlight the relevance of the interrogatories. For example, since October 2023, productions from third parties have contained communications involving Roche custodians, yet those documents were not produced by Roche. Furthermore, Plaintiffs’ “meager production of NDC documents” is evidence that relevant documents have not been adequately preserved. Mercato points to a failure by Roche to produce “unquestionably relevant OneNote files,” referenced during the deposition of Roche employee Melinda Spreitzer. Post-deposition, Defendants sought Roche's relevant OneNote files. They were produced four months later but did not include notes relating to the Alliance pharmacy the witness testified about. *3 In short, Mercato asserts that it is crucial that Plaintiffs provide answers to the document preservation interrogatories. III. Plaintiffs’ Opposition While LifeScan and Roche have filed separate briefs opposing Mercato's motion, the arguments of each Plaintiff are fundamentally the same. Plaintiffs principally argue that Mercato's interrogatories violate the Special Master's scheduling Order of September 28, 2023. That Order provided that the deadline for requesting fact discovery on Plaintiffs’ claims expired on October 24, 2023. Plaintiffs emphasize that prior to the entry of this Order they had raised concerns that Defendants would continue to serve additional discovery requests creating the risk of additional time extensions. The idea was that the parties could serve written demands once more after which they would focus on completing outstanding discovery. When Defendants sought an extension of the deadline from December 15 to May 31, 2024, they acknowledged that the October 24 deadline would not be disturbed and emphasized the extension was intended to address existing discovery, not to serve new discovery. Similarly, in February 2024, at another conference, Mercato asked the Special Master to rule that the October 24 deadline was no longer operative, but this request was rejected. The Court went on to state that if Defendants thought that new requests were “absolutely so important that [they couldn't] go forth without them,” they could make an application to serve new discovery for good cause. Nevertheless, on February 28, 2024, Mercato served its interrogatories. Those interrogatories focused exclusively on Plaintiffs’ document preservation efforts – a topic that could have been the subject of discovery at any time in this litigation. Additionally, Plaintiffs urge that the motion to compel should be denied because Mercato has served more interrogatories than the Federal Rules permit. Mercato has now served a total of 45 interrogatories, “far more than the number permitted by the Federal Rules or the number permitted by Magistrate Judge Waldor” in an earlier scheduling Order. Mercato has failed to obtain the Court's consent to serve the additional interrogatories despite the Special Master's directions. Moreover, Mercato has failed to demonstrate good cause to pursue these interrogatories. They were served five months after the Court's deadline and years into discovery and seek information that Mercato could have pursued earlier. Independently, LifeScan argues that while Mercato relies heavily on purported deficiencies in Roche's production to establish good cause, those deficiencies (1) do not establish spoliation; and (2) deficiencies by Roche cannot establish good cause to seek discovery from LifeScan. LifeScan maintains Mercato's only argument supporting good cause is to charge that LifeScan's production of NDC related documents demonstrates Plaintiff “may not have adequately preserved relevant documents.” LifeScan says this is pure speculation and, as LifeScan has argued in other motions, its productions were not deficient since 21 C.F.R. § 207 does not apply to DTS. Hence, the lack of registration documents does not suggest that document preservation was lacking as the documents sought never existed.[2] *4 Both Plaintiffs assert that the testimony of their respective Rule 30(b)(6) witnesses has no bearing on this motion and was otherwise sufficient. Mercato has not moved to reopen those depositions to provide additional testimony on document preservation. This is because the witnesses testified substantively for many hours on nearly 100 topics. Plaintiffs maintain that their respective witnesses were well prepared while Mercato has “cherrypicked” testimony in a flawed effort to demonstrate otherwise. The fact that the witnesses could not answer every question does not mean that they were inadequately prepared, especially given the voluminous topics, citing Costa v. Cnty. of Burlington, 254 F.R.D. 187, 190 (D.N.J. 2008) and United States v. HVI Cat Canyon, Inc., 11-cv-5097, 2016 U.S. Dist. LEXIS 200353, 2016 WL 11683593, at *7 (C.D.Cal. Oct. 26, 2016). Furthermore, Plaintiffs’ objection to the interrogatories did not create a commitment for Plaintiffs to provide answers to untimely interrogatories through corporate witnesses. Finally, Plaintiffs describe what Mercato seeks as “discovery on discovery,” i.e., Mercato wants information on discovery efforts itself, not on facts relevant to this case. Citing Edwards v. McDermott Int'l, Inc., 4:18-cv-04330, 2021 U.S. Dist. LEXIS 213363, 2021 WL 5121853, at *3 (S.D.Tex. Nov. 4, 2021), Plaintiffs say, absent an agreement or specific, tangible evidence-based indicia (as opposed to general allegations of discovery deficiencies), there should be no “discovery on discovery” as is the case here. In its opposition, Roche separately addresses Mercato's charge that the company's OneNote documents were deficiently produced. To this, Roche maintains that there is no basis, as Mercato suggests, that Roche failed to serve these documents and the documents have, in fact, been produced. Additionally, Mercato has focused its discovery efforts on the OneNote documents going back to the summer and fall of 2023 and served a deposition notice in August of that year which included the OneNote documents as a specific topic. Dissatisfied with the responses it received, including deposition testimony that confirmed Roche had preserved and produced relevant OneNote documents, Defendant is now going “back to the drawing board” to pursue interrogatories it could have served before October 24, 2023. Roche also addresses Mercato's contention that the interrogatories are justified because of the existence of six emails produced from third-parties (Abbott Laboratories and Caremark). Roche maintains that the emails are of “minimal substantive importance” and the fact that these emails are not present in Roche's production fails to constitute good cause to seek discovery into Roche's preservation efforts, citing Enslin v Coca-Cola Co., 2:14-cv-06476, 2016 U.S. Dist. LEXIS 193556, 2016 WL 7042206, at *3 (E.D.Pa. June 8, 2016). Mercato states that when there is a vast amount of electronic information, a party cannot be expected to meet a standard of perfection when providing documents. Roche has produced hundreds of pages of emails between its employees and Abbott and Caremark. Therefore, Roche clearly preserved its emails and the third-parties’ production of a handful of emails does not open a new avenue of discovery. Finally, like LifeScan, Roche says that Mercato's charge that NDC document discovery has been inadequate is untrue. Roche has produced thousands of NDC-related documents dating to October 2022 in multiple productions. Mercato's assertion that there exists other NDC-related documents is speculation and, therefore, insufficient to grant a motion to compel, citing Ford Motor Co. v. Edgewater Props., Inc., 257 F.R.D. 418, 428 (D.N.J. 2009). IV. Mercato's Reply Mercato largely reiterates its positions previously advanced. That is, Mercato charges that Plaintiffs’ Rule 30(b)(6) witnesses were improperly prepared, improperly designated, and insufficient in number. Mercato would not need to pursue these interrogatories had the representatives been properly prepared. Mercato reasserts that both witnesses were unable to answer questions about their respective company's preservation efforts, testified almost entirely as to their personal knowledge and testified in the form of hypotheticals. *5 Mercato is not required to make a showing of spoliation to seek information surrounding Plaintiffs’ preservation efforts. See Boyington, 2016 U.S. Dist. LEXIS 142384, at *36. The interrogatories are also directly related to Mercato's case dispositive statute of limitations defense. In LifeScan's case, if that company implemented a litigation hold in 2014 or 2015, Mercato argues this would be evidence that LifeScan contemplated litigation more than four years before bringing suit. Conversely, if Plaintiffs failed to implement a timely hold allowing documents to be destroyed “that may give rise to questions about why certain documents were never produced and why certain custodians were not included in a litigation hold.” Finally, as to timeliness, Mercato insists that its need for the interrogatories arose after the deadline, i.e., “the discovery produced [after the deadline] brought to light new evidence that, after Plaintiffs’ 30(b)(6) witnesses were unable to discuss, made it necessary to pursue the interrogatories.” Plaintiffs cannot claim to be “sandbagged” by the interrogatories since Mercato had served deposition notices requesting the same information. Then, when Plaintiffs’ witnesses were deposed, they failed to provide substantive testimony as to preservation efforts, necessitating the interrogatories. V. Analysis and Findings In the Special Master's view, this dispute can be summarized as follows: Mercato asserts that it is unquestionably entitled to discovery as to Plaintiffs’ document preservation efforts; Plaintiffs counter Defendant has waived its right to that discovery by failing to serve interrogatories before the court ordered deadline. Generally speaking, Mercato's position as to the discovery of “document retention efforts” (or, put another way, discovery of litigation hold information) accurately represents the current state of the law.[3] While the law is unsettled as to whether a party is entitled to compel production of litigation hold letters themselves, our courts are clear that litigants are entitled to know certain basic facts surrounding the implementation of the litigation hold. That is, a party is entitled to know when a litigation hold was implemented, who received the litigation hold, what categories of ESI the recipients were instructed to preserve and collect and what specific actions the recipients were instructed to take. See, Major Tours, 2009 U.S. Dist. LEXIS 68128, at *7; Boyington, 2016 U.S. Dist. LEXIS 142384, at *36-37 (parties entitled to know the facts surrounding and adversary's preservation efforts); and In Re eBay Antitrust Litig., 07-cv-01882, 2007 U.S. Dist. LEXIS 75498, 2007 WL 2852364, at *2 (N.D. Cal. Oct. 2, 2007) (plaintiff is entitled to probe into actions taken by defendant's employees with respect to collecting and preserving ESI). Once a party reasonably anticipates litigation, it must suspend its routine document retention and destruction policies and put in place a litigation hold to ensure preservation of relevant documents. Moreover, a party's discovery obligations do not end with implementation of a litigation hold and counsel “must oversee compliance with a litigation hold, monitoring the parties’ efforts to retain and produce relevant documents.” Major Tours, 2009 U.S. Dist. LEXIS 68128, at *8 (citing Zubulake v. UBS Warburg LLC, 229 F.R.D. 422, 425 (S.D.N.Y. 2004)). *6 The Special Master finds Mercato has demonstrated the information it seeks as to Plaintiffs’ document retention efforts, even in the absence of a preliminary showing of spoliation, is relevant and discoverable. Plaintiffs do not argue that the discovery sought is not per se relevant or that Defendant is otherwise not entitled to explore basic facts as to the litigation holds. However, this is not the only issue before the Special Master. Additionally, the Court must consider whether Plaintiffs should be compelled to answer interrogatories served months after a hard deadline for the service of discovery demands. As Plaintiffs correctly point out, this was an issue addressed at several status conferences. The issue arose from Plaintiffs’ concern that they would be required to respond to last minute discovery demands which, in turn, would provide a basis for Defendant to seek additional discovery extensions. Given this, on September 28, 2023, in connection with the conference in which the issue was argued, the Court entered an order setting a deadline for serving fact discovery of October 24, 2023. [See ECF 799 which directs, among other things, that “the deadline for requesting fact discovery on Plaintiffs’ claims and Defendants’ defenses is October 24, 2023.”] When Defendants sought to extend the then existing deadline from December 15, 2023 to May 31, 2024, they couched the extension request as one intended only to allow for additional time to complete discovery, not to serve new or additional discovery. Finally, in February 2024, Mercato requested a ruling that the October 24 deadline was no longer operative, but this request was denied by the Special Master (although allowing for the possibility that a party could make an application to serve new discovery for good cause). This sequence of events is reflected in Plaintiffs’ Exhibits 1, 2, 3 and 4. Nevertheless, Mercato served Plaintiffs with the disputed discovery without making an application to the Court. Plaintiffs make a cogent point that Mercato had an opportunity in the years this matter has been litigated to serve records preservation/litigation hold interrogatories but failed to do so until months after the deadline had expired. Mercato's affirmative defense that Plaintiffs failed to file suit within the statute of limitations provided an additional reason that Defendant should have served interrogatories aimed at the litigation hold and records preservation efforts prior to the discovery demand deadline. However, the analysis does not end there. The more difficult issue concerns Plaintiffs’ Rule 30(b)(6) depositions and the testimony elicited from Plaintiffs’ corporate representatives. It is Mercato's position that Plaintiffs’ answers to interrogatories led Defendant to believe that the deponents would be prepared to answer questions as to document retention, i.e., Plaintiffs objected to the interrogatories but also stated that the objection went “to the extent that the information sought can be obtained through [Plaintiffs’] designated 30(b)(6) corporate representatives’ deposition[s].” Mercato argues that by making this statement, Plaintiffs waived objections to litigation hold discovery and were obligated to prepare the representatives to answer questions on this topic. The Special Master does not find, as Mercato charges, that this statement was a concession or a promise by Plaintiffs that their 30(b)(6) witnesses would be prepared to address LifeScan's and Roche's document retention and preservation efforts. Nevertheless, the fact remains that in the deposition notices, the topics included records retention and preservation efforts. For example, in the notice sent to LifeScan, number 32 reads: *7 Your efforts to retain and preserve Documents...relation to this Action and any policies or notices issued by You concerning the retention and preservation of Documents...including...information concerning when, how, by whom and to whom any such policies or notices were distributed. Therefore, in the Special Master's view, Plaintiffs were on notice that their corporate representatives would be asked questions about document preservation efforts and should have anticipated questioning in that regard. Plaintiffs have provided the Court with the complete deposition transcripts of LifeScan's and Roche's corporate witnesses. The testimony was extensive. LifeScan's representative, Deejay Smith, was deposed from approximately 8:30 a.m. until 11:30 p.m. The transcript is 851 pages. Roche's representative, Kerri McAleavey, gave testimony from approximately 9:15 a.m. to 3:15 p.m. Her transcript is 433 pages. While the Special Master has not reviewed every word in these voluminous transcripts, it is evident from reviewing the deponent's testimony that both witnesses were clearly prepared for deposition. They were not evasive, nor were there any significant objections. However, when questioned regarding Plaintiffs’ litigation holds and document preservation efforts, their testimony in that respect was more limited. Smith, LifeScan's representative, did not know the date the litigation hold was implemented. Instead, he testified that as a general practice periodic emails were issued which he described as a “standard litigation hold” instructing employees to preserve all written documents, handwritten documents, emails and correspondence. He did not know when LifeScan first instituted a litigation hold in this case. As to who received it, Smith could only say that the hold “would have” been transmitted to “a broad group of individuals that...had anything to do with Alliance or any of the entities that were being discussed [at the deposition].” He could not specifically say who received the notice or even how many individuals received the first litigation hold. McAleavey, Roche's representative, was more knowledgeable. She confirmed that Roche distributed a legal hold on March 20, 2019, and that there were no prior holds. Roche's legal team “would have” sent out a notice via email and employees who received the notice would acknowledge receipt. The notice included advice and counsel as to how to treat information relevant to the action. She confirmed that the email went out to employees at Roche Diabetes Care and identified three individuals who she could remember having received the email. She did not know whether third-party vendors or consultants also received the litigation hold. She had not reviewed the March 2019 litigation hold letter in preparation for the deposition. Given this testimony, the question remains: Is it appropriate to compel Plaintiffs to answer untimely records preservation interrogatories when Plaintiffs’ corporate representatives, on notice that they would be questioned about those efforts, failed to fully provide information? While this is a close question, the Special Master concludes that Plaintiffs are obligated to provide responses to basic litigation hold discovery which Mercato seeks. However, as a result of Defendant's failure to have sought this information through interrogatories before the Court's deadline and given that Plaintiffs have already provided interrogatory answers beyond the number required by the Federal Rules or existing court orders[4], the Special Master orders as follows: Plaintiffs must provide written answers to the following questions: (1) when the respective litigation holds were implemented; (2) to whom litigation holds were directed; (3) what categories of ESI were employees instructed to preserve and collect; and (4) what actions were the employees instructed to undertake to that end. Plaintiffs shall provide responses to these four questions within twenty (20) days of the date of this Order. VI. Conclusion *8 Defendants’ motion is GRANTED within the parameters set forth in this Order and Opinion. Footnotes [1] According to the movant, “Mercato,” collectively refers to defendants 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 or Defendant. [2] Since this motion was filed, the Special Master has issued an Order and Opinion which granted Mercato's motion to compel LifeScan to complete NDC-related discovery. [3] “A legal hold is a communication...that suspends the normal disposition or processing of records.” Shira A. Scheindlin, Daniel J. Capra, The Sedona Conference, Electronic Discovery and Digital Evidence at 688-89 (West 2009). The communication may be called a “hold,” “preservation order,” “suspension order,” “freeze notice,” “hold order,” or “hold notice.” See, Major Tours, 2009 U.S. Dist. LEXIS 68128, at *4. [4] In LifeScan, Judge Waldor entered pre-trial scheduling orders dated January 25, 2018 [ECF 79] and July 29, 2019 [ECF 295] which, among other things, limited the parties to serving interrogatories “not to exceed 30 single questions total, including subparts.” The Special Master is unable to locate a similar order in Roche but presumes the same limit applies.