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 , Civil Action No. 19-8761 (CCC)(JSA) United States District Court, D. New Jersey Filed February 01, 2024 Cavanaugh, Dennis, Special Master (Ret.) ORDER & OPINION OF THE SPECIAL MASTER JUDGE DENNIS CAVANAUGH, RET. AS TO FOUR (4) MOTIONS CONCERNING ANNUAL MARKET SURVEYS *1 Before the Special Master are four (4) motions filed in this litigation which effectively deal with the same subject matter – annual “market surveys” conducted on behalf of Plaintiff LifeScan by two investigative firms Plaintiff had retained. Those motions are, as follows: The Mercato Defendants’ (“Mercato”)[1] motion to compel LifeScan to produce materials derived from annual market surveys; Mercato's motion to compel compliance with a subpoena served on K2 Intelligence (“K2”); Mercato's motion to compel compliance with the subpoena served on Kroll Investigative Services (“Kroll”); and LifeScan's motion for a protective order as to a subpoena served on Kroll. In reaching the findings set forth below, the Special Master has reviewed the entirety of the briefing and supporting materials submitted by the litigants and non-parties in support of or in opposition to each of the motions. Based upon review of the materials cited above, it is the finding of the Special Master that Mercato's motion to compel the market surveys as to LifeScan, K2, and Kroll are GRANTED within the parameters described in this Order and Opinion. It is further ordered that LifeScan's motion for a protective order is DENIED. I. Procedural History and Factual Background Once again, the Special Master writes principally for the benefit of the parties before the court. Therefore, this discussion will be limited to the procedural events and operative facts directly pertinent to this motion. This litigation, two lawsuits which have been coordinated for discovery purposes but not consolidated, arises out of what the parties have called the “Alliance fraud.” The fraud centers on the distribution, sale, and reimbursement of diabetic test strips (“DTS”) manufactured by the two plaintiffs, LifeScan, Inc. (“LifeScan”) and Roche Diagnostics Corporation/Roche Diabetes Care, Inc. (“Roche”). Plaintiffs charge that a now-defunct entity known as Alliance Medical Holdings LLC (“Alliance”) through its officers, directors and investors concocted a scheme to sell nonretail DTS to diabetic patients but were reimbursed by pharmacy benefit managers (“PBMs”) for the sale of higher priced retail strips, profiting from the difference. Plaintiffs have brought suit against the officers, directors and investors in Alliance charging that these individuals and entities were knowledgeable about this scheme and profited from the fraud. Mercato is one of those Alliance investors. Pertinent to this motion, Mercato asserts that one of the Plaintiffs, LifeScan, hired two investigation firms to ascertain the prevalence of diverted and counterfeit DTS manufactured by that company under the name “OneTouch” strips. Mercato maintains that the information gathered, and the results of those investigations are relevant to its statute of limitations defense, i.e., Mercato takes the position that LifeScan's RICO claims are time barred since Plaintiff knew or should have known of its injuries more than four years before bringing suit. *2 LifeScan hired the two firms, Kroll and K2, in succession to send personnel into hundreds of randomly chosen independent retail pharmacies nationwide to assess their stock of DTS.[2] Plaintiffs allege that Alliance had been using covertly owned pharmacies across the nation as part of the scheme. Mercato asserts that the information gleaned by the investigators will demonstrate that LifeScan should have known at the earliest stage of the investigation that the Alliance-affiliated pharmacies were diverting OneTouch strips, rather than selling millions of counterfeit strips, thereby raising a red flag as to Alliance's product diversion. Mercato seeks the following materials from LifeScan's annual market surveys: The results including all draft and final reports; The underlying data; The evidence collected which includes boxes of DTS, chain-of-custody forms and sales receipts; and Documents memorializing the scope of work to include professional service agreements, statements of work and purchase orders. In addition to seeking these materials directly from LifeScan, on June 13, 2023, pursuant to Fed. R. Civ. P. 45, Mercato served K2[3] with a subpoena effectively demanding that it produce the same market survey materials it sought from Plaintiff. In response, on July 13, 2023, K2 served its objections, refusing to produce any responsive documents and stating that the information sought was irrelevant, compliance would be burdensome, the requests were non-proportional, and the communications were protected as attorney work product and by attorney-client privilege. Thereafter, in July 2023, Mercato served an identical subpoena on Kroll, although the events which transpired after service were more complicated. After Kroll received the subpoena, it retained Winston and Strawn LLP for representation. After securing additional time in which to comply, Kroll's search of archived files identified seven “project shared files” potentially containing responsive documents. According to Kroll, this law firm, which represents Defendant Medsource Entities (also known as the Hughes Entities) in this litigation, determined that some of the documents might be privileged and notified LifeScan. Kroll states that it was advised to take no further action until a ruling by the Special Master. Additionally, LifeScan raised concerns about a conflict of interest, and on October 27, 2023, Kroll retained another law firm, Locke Lord, as its counsel. The materials were electronically transferred to the Locke Lord computer system in mid-November. There are some 38,295 documents. Within short order after this, Mercato moved to compel Kroll's production while LifeScan filed its motion for a protective order. Therefore, to this date, the documents at issue have not been produced by LifeScan, K2, or Kroll. II. General Statement as to Litigants’ Arguments While four (4) motions have collectively been filed by the litigants, in actuality, each of the motions center on the same subject matter – “market surveys” conducted by two investigative firms, Kroll and K2, at the behest of LifeScan. The arguments presented by the parties for and in opposition to each of these motions are substantially the same. What follows summarizes the arguments of each party (as well as non-parties, K2 and Kroll) while pointing out minor distinctions and differences. There are, however, no substantial differences as to the parties’ legal positions nor differences between the nature of the documentation sought from LifeScan or from either of the two investigative firms, Kroll and K2. III. Mercato's Argument *3 Mercato charges that LifeScan knew of its alleged injuries by May 2014 when a whistleblower informed LifeScan about diversion at 10 Alliance-affiliated pharmacies, including the pharmacy where she worked. LifeScan filed suit in July 2017 against four Alliance officers, amended its complaint in November 2017 to add Alliance investors and Zions Bank, then sued Mercato and other defendants by way of an amended complaint dated July 5, 2019. Mercato asserts that there is no doubt LifeScan's RICO claims accrued prior to July 5, 2015, i.e., four years before LifeScan sued Mercato and beyond the statute of limitations. Furthermore, Mercato says there is good reason to believe LifeScan knew about its injury even before May 2014 as a consequence of information gleaned by its investigators. Mercato points to a 2014 survey conducted by K2 (which succeeded Kroll as LifeScan's investigator) demonstrating that nearly 40% of independent retail pharmacies sold diverted OneTouch strips and that virtually no independent retail pharmacies sold counterfeit strips.[4] This is significant since Mercato will use the survey materials to show that LifeScan understood the most likely way an independent pharmacy could adjudicate retail DTS it did not purchase from an authorized distributor could only be through diversion, i.e., the surveys will show LifeScan should have known before May 2014 that Alliance-affiliated pharmacies were diverting non-retail DTS. Mercato asserts that federal RICO claims have a four-year statute of limitations. Lab M.D. Inc. v. Doback, 47 F.4th 164, 179 (3d Cir. 2021). The courts in this Circuit follow the “injury discovery rule” which holds that the limitations period begins to run when a plaintiff discovers, or reasonably should have discovered, its injury – not when a plaintiff learns of facts supporting each element of its RICO claim, citing Mathews v. Kidder, Peabody & Co., 260 F.3d 239, 244-45 (3d Cir. 2001) and Forbes v. Eagleson, 228 F.3d 471, 484-85 (3d Cir. 2000). The courts then apply both a subjective and objective test to determine when a RICO claim accrues. The subjective test hinges on a plaintiff's actual knowledge of an injury while under the objective test a claim may still be time-barred even if a plaintiff files within four years of discovering the injury “if the plaintiff should have discovered the injury, after exercising reasonable due diligence, more than four years before filing suit.” Cetel v. Kirwan Fin. Group, Inc., 460 F.3d 494, 507 (3d Cir. 2006). Under the objective test, courts must determine when a plaintiff should have known the basis for its claims which depends on whether a plaintiff had sufficient information of possible wrongdoing to constitute “inquiry notice” or to “excite storm warnings of culpable activity.” Id. Here, says Mercato, LifeScan was aware of the “storm warnings” yet failed to exercise reasonable diligence to avoid the storm. Mercato recites a chronology of events in support of this proposition. Briefly summarized, in April 2014, LifeScan received a phone call from a whistleblower pharmacist who informed the company that her Alliance owned pharmacy was diverting LifeScan's non-retail strips outside their intended channel. That pharmacist continued to provide information over the ensuing months including the fact that only Medicaid/Medicare labeled strips were being sent out to all patients and that the pharmacy's management company was diverting LifeScan products to at least 10 pharmacies nationwide. LifeScan understood that these actions constituted “the exact NDC fraud scheme at the heart of LifeScan's complaint,” prompting the exchange of internal emails as to this fraud while the company's attorneys “shared an identical opinion” that the activity described was indeed fraudulent. In LifeScan's original complaint (July 2017), the Plaintiff identified a confidential witness (an undisputed reference to the pharmacist-whistleblower), described the information provided, and as such, LifeScan effectively admitted that it knew of its injuries by May 2014, five years before it sued Mercato. LifeScan thereafter removed these allegations from its subsequent complaints “to avoid a case-dispositive Rule 12 motion.” *4 Mercato charges that LifeScan received notice of its injury outside the limitations period from sources besides the pharmacist. Mercato cites internal documents and deposition testimony from LifeScan management in which they acknowledged their then concern with Medsource, Alliance's predecessor. In November 2014, KPMG (an auditing firm) sent LifeScan the preliminary results of its analysis, parts of which corroborated the whistleblower's information and also provided LifeScan with an understanding of the affiliated pharmacies involved in the fraud and LifeScan's exposure. During the same month, a former Patterson Belknap attorney emailed K2 seeking a proposal to investigate “a network of companies apparently owned by, or affiliated with, a parent company called Alliance Health...” [See letter brief, p. 13]. In December 2014, LifeScan's attorneys sent employees a proposal from K2 that stated that the company's attorneys had asked K2 to investigate the individuals behind Alliance, emphasizing potentially seizable assets. Finally, on May 6, 2015, K2 provided LifeScan's counsel with a final report on Alliance and its potential assets. The deposition testimony of the former LifeScan outside counsel demonstrated that by this point, Patterson Belknap had settled on a theory that Alliance was engaged in fraudulent billing practices relating to DTS using the retail NDC codes to obtain reimbursement from PBMs. Mercato further argues that the market surveys fall within the scope of several requests to produce submitted to LifeScan. Briefly stated, those are: Number 52. All communications relating to market studies regarding the U.S. market for test strips. Number 54. All communications concerning policies, practices or methods as to the sale of or rebates for test strips. Number 59. All communications as to LifeScan's understanding of the test strip market including mail order and retail. On June 9, 2003, Mercato sent LifeScan a deficiency letter seeking materials from market surveys as to the diverted and counterfeit DTS. That letter requested the same items which Mercato seeks by way of this motion (see above). LifeScan, however, claimed that the survey materials are not within the scope of the document requests and were irrelevant because they do not directly relate to Alliance. Despite a meet and confer, LifeScan continued to refuse to produce these materials. This motion followed. To summarize, Mercato argues that the survey materials are relevant to its statute of limitations defense since LifeScan was aware of diversion even before the company was alerted by the whistle-blowing pharmacist. While LifeScan contends that its general awareness of marketplace diversion does not constitute a “storm warning,” Mercato counters by urging that the materials became storm warnings when LifeScan uncovered red flags at Alliance-affiliated pharmacies. The survey materials are also relevant to whether LifeScan exercised reasonable diligence in heeding other storm warnings such as the information provided by the pharmacist and certain claims data analysis. Finally, Mercato argues that survey materials are easy to locate so no production burden outweighs the material's relevance. IV. LifeScan's Argument Succinctly stated, LifeScan opposes motions to compel and seeks a protective order on the bases that (1) the materials are irrelevant to this case, and (2) the materials would be disproportionately burdensome to produce. Additionally, in support of its motion for a protective order as to the subpoena served on Kroll, LifeScan notes that there is an additional category of materials that are subject to the subpoena – internal investigations unrelated to diverted test strips but instead related to other corporate matters. LifeScan points out that Mercato's motion is largely a preview of its anticipated statute of limitations defense – the validity of which is not before this court. Instead, the issue is whether Mercato is entitled to a new search for a new category of documents late in discovery and unrelated to Alliance. LifeScan has already produced all documents as to its investigation of Alliance and its affiliated pharmacies but the materials arising out of the surveys at issue involve investigations of randomly selected independent pharmacies, none of which were Alliance affiliates. LifeScan argues that Mercato's theory as to its statute of limitations defense is without merit. That is, Mercato takes the position that because LifeScan was aware of a general phenomenon of test strip diversion, the surveys became “storm warnings” when LifeScan learned of Alliance's “red-flags.” However, the relevant question for statute of limitations purposes “is when LifeScan...could have known the basis of its claims with enough particularity about the fraud to bring a lawsuit challenging Alliance's scheme.” Travelers Cas. & Suretey Co. v. Falkowski, 15-cv-6737, 2021 U.S. Dist. LEXIS 124070, 2021 WL 2784832, at *3 (E.D. Pa. July 2, 2021). LifeScan's awareness of a general prevalence of test strip diversion in independent retail pharmacies has no relevance to whether the company could bring suit against Alliance, i.e., it does not go to what LifeScan knew or did not know about the Alliance fraud. Instead, the relevant facts bearing on Mercato's limitations defense are those that LifeScan has already produced and which are cited in Mercato's papers. *5 Even if the documents were to be considered “storm warnings,” such warnings are relevant only if they indicate that a plaintiff should have investigated its injury, but failed to do so. See Hawk Mountain LLC v. Ram Cap. Grp. LLC, 689 F. App'x. 703, 705 (3d Cir. 2017). Instead, LifeScan did attempt to investigate Alliance but that company took steps to conceal the nature and scope of its fraud, seeking a restraining order when LifeScan sent outside counsel and investigators to interview former Alliance employees. Therefore, LifeScan cannot be said to have avoided investigating its claims when Alliance sued to prevent them from doing so. In addition to an absence of relevance, LifeScan says that it would be extremely burdensome to produce the materials. As to the four categories of documents requested, LifeScan would be required to locate potential repositories, search tens of thousands of documents, then review materials for relevance and privilege. There is no way to easily locate these materials by clicking a link in the Johnson & Johnson (LifeScan's predecessor) document management system, nor by consulting individuals who no longer work for LifeScan. Additionally, it would be a difficult task to locate physical boxes of strips, hard copy sales receipts and chain of custody materials from surveys that occurred years ago. Finally, LifeScan says Mercato has sat on this request for years, having received Plaintiff's responses on January 21, 2020. Therefore, Mercato should not be rewarded by permitting this “last moment” request to undertake a new and burdensome search.[5] As to the subpoena served on Kroll, LifeScan states that approximately 40,000 documents have been identified but it has yet been given access to these documents. Based upon its limited understanding, the documents “appear to be a variety of matters where Kroll provided ‘litigation support’ for Johnson & Johnson and various law firms, unrelated to this case but related to other litigations and potential litigations.” [LifeScan's letter motion at p. 11.] LifeScan goes on to state that it understands that many documents in this batch may contain commercially sensitive information stemming from investigations that have nothing to do with diversion, sales of diabetes strips in different channels or fraud and that some materials may relate to purely internal investigations. LifeScan also maintains that sorting through approximately 40,000 documents – even if the scope is narrowed to some extent – is a burdensome task. Since LifeScan's confidential and privileged materials are implicated, it must also review the documents to ensure that whatever search terms are selected, they did not inadvertently capture any unrelated documents. Finally, as to Mercato's argument that its motion for a protective order is untimely, LifeScan states that the Federal rules do not set a date in which to file a motion for a protective order. Plaintiff reiterates that it did not know Kroll had been served until late September 2023, and it is untrue that it had been offered, but refused to accept, the documents at issue. On the other hand, says LifeScan, Mercato waited until July 2023 – more than four years into this case – to seek the materials at issue. V. Kroll's Opposition *6 Kroll states that the employees who worked on the project materials left the company long ago so there is no meaningful “institutional knowledge” about the contents of the documents that have been identified. Kroll emphasizes that it is a burden to review the materials which is disproportionate to their relative value. All but one of the seven project files appear to relate to the surveys into counterfeiting DTS. The product descriptions state that Kroll was engaged by two different law firms (Kramer Levin Maftalis and Frankel LLP as well as the Patterson Belknap firm) for five projects all of which are titled “litigation support.” Additionally, it appears that “many of the documents” (without specifying the number) were created between 2004 and 2008, i.e., before the existence of Alliance or its predecessors. Kroll has joined LifeScan's motion for a protective order because it believes the documents are not relevant to the claims or defenses in the case. Based upon Kroll's limited review, “these projects relate to investigations into the counterfeiting of test strips, which is not relevant to over-billing.” Further, if Kroll were ordered to produce these documents, its attorneys “would have to bring a review team up to speed,” something which is a timely and complicated process. While Kroll is prepared to satisfy its discovery obligations “as determined by the Special Master,” it requests that the Court “resolve the relevance objection before compelling Kroll to comply with a subpoena” and to provide it sufficient time to negotiate search terms and review the documents. VI. Mercato's Reply Mercato generally reemphasizes its central argument – the market surveys show that LifeScan knew from an early stage that “independent retail pharmacies (like Alliance) were dispensing millions of diverted DTS and virtually no counterfeit test strips.” Consequently, LifeScan should have known that Alliance was engaged in this diversion especially after receiving information from the whistleblower, and from KPMG (the auditing firm retained by LifeScan) and its outside counsel. In addressing LifeScan's opposition, Mercato goes on to say that Plaintiff is relying on a far too strict standard of relevance. The Third Circuit allows broad and liberal discovery. Relevancy is to be more loosely construed at the discovery stage than at trial. Leski Inc. v. Federal Ins. Co., 129 F.R.D. 99, 104 (D.N.J. 1989). Again, Mercato says it intends to use the survey materials to show that LifeScan should have known earlier that Alliance pharmacies were engaged in diversion. While there are other facts adduced in discovery evidencing this knowledge, Mercato's arguments become stronger by demonstrating that LifeScan had “foundational knowledge” about wide-scale fraud, knowledge that would help LifeScan better understand Alliance's conduct. Mercato also points to recent discovery developments which highlight the relevance of the survey materials. Specifically, deposition testimony given by former LifeScan and Roche employees, along with written materials as to a March 3, 2015 “industry meeting” attended by LifeScan, Roche, two other pharmaceutical companies and Patterson Belknap. Mercato asserts that the testimony and the meeting notes verify that LifeScan, Roche and their attorneys were contemplating filing RICO claims against independent pharmacies like Alliance for NDC swapping at that time and that the survey materials were discussed in the context of Plaintiff bringing RICO claims against independent pharmacies like Alliance. While LifeScan says that the materials are duplicative of existing discovery, Mercato maintains that they bolster its position. For example, the materials are relevant for rebutting any contention that LifeScan did not have a reasonable basis to believe Alliance was engaged in diversion and that once LifeScan discovered the Alliance network and the scale of its business, it had a “well-founded basis to believe that the pharmacies were engaged in diversion.” Mercato also asserts that contrary to LifeScan's position, the surveys do factually relate to Alliance. That is, the investigators used statistically representative samples of retail pharmacies to ascertain the prevalence of diverted versus counterfeit strips nationwide. Therefore, given that this was a representative sample, while “the survey materials may not explicitly reference Alliance, ...they undoubtedly relate to Alliance.” *7 Mercato also takes issue with LifeScan's interpretation of what triggers a RICO claim accrual. Contrary to LifeScan's position, Mercato maintains that RICO claims accrue when a party discovers its injury and the source of the injury, not when it understands its claims with enough particularity about the fraud to bring suit, citing Rotella v. Wood, 528 U.S. 549, 558-59 (2000) and Jay E. Hayden Found. v. First Neighbor Bank, NA, 610 F. 3d 382, 386-87 (7th Cir. 2010). Here, Mercato charges, LifeScan was aware of injury and the source before July 2015. Finally, as to LifeScan's position that a new search would be burdensome, Mercato contends that LifeScan fails to explain why this is so and fails to recognize that a complex case, such as this, requires a party to meet its discovery obligations. VII. Analysis and Findings As has been the case with other discovery disputes in this litigation, the resolution of this motion is principally governed by Fed. R. Civ. P. 26 and the cases interpreting that Rule. Specifically, Fed. R. Civ. P. 26(b)(1) addresses generally the scope of discovery as well as its limits. The Rule provides, in pertinent part: Unless otherwise limited by court order, the scope of discovery is as follows: Parties 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, considering the importance of the issues at stake in the action, the amount in controversy, the party's relative access to relevant information, the party's resources, the importance of discovery and resolving the issues and whether the burden or expense of the proposed discovery outweighs its likely benefit. The information within this scope of discovery need not be admissible in evidence to be discoverable. As our courts have stated repeatedly, Rule 26 is to be construed liberally and in favor of disclosure since relevance is a broader inquiry at the discovery stage, such as the case here, than at the trial stage. Pella-Radio Sys. Ltd. v. DeForest Elecs., Inc., 92 F.R.D. 371, 375 (D.N.J. 1981). Put another way, it is “well recognized that the federal rules allow broad and liberal discovery.” Pacini v. Macy's, 193 F.3d 766, 777-78 (3rd Cir. 1999). However, while relevant information may not be admissible at trial in order for a court to grant disclosure, the burden remains on the party seeking discovery to “show that the information sought is relevant for the subject matter of the action and may lead to admissible evidence.” Carver v. City of Trenton, 132 F.R.D. 154, 159 (D.N.J. 2000). When establishing the parameters of discovery relevance, it is the claims and defenses of the parties, in the complaint and other pleadings, which set the guardrails for discoverable information. Nat'l Union Fire Ins. Co. of Pittsburg, PA v. Becton, Dickinson & Co., No. 14-4318, 2019 U.S. Dist. LEXIS 68536, 2019 WL 1771996, *3 (D.N.J. Apr. 23, 2019). As noted, the subject matter as to all four of these related motions concerns “market surveys” serially conducted by two outside, retained investigative firms on behalf of LifeScan. While described as “annual market surveys,” suggesting an analysis of customer sales, it is plainly evident that the investigative firms were retained to conduct investigations into what has been generally described in this litigation as diabetic test strips (DTS) diversion. Indeed, the fraudulent scheme which has formed the basis of this lawsuit since its inception concerns a form of diversion by Alliance which the parties universally refer to as “NDC-swapping.” *8 Consequently, in the Special Master's view, discovery which generally concerns DTS product diversion as to strips manufactured by LifeScan (and Plaintiff Roche) facially is discovery pertinent to the parties’ claims and defenses in this matter. One of those defenses asserted by Mercato (and presumably by other defendants) is that LifeScan's claims are barred by the RICO statute of limitations since that company knew, or should have known, of its injury arising from the Alliance NDC-swapping fraud. While the market surveys did not directly involve an investigation into Alliance or its network of covertly held pharmacies, that fact does not, in and of itself, negate the relevancy of the investigator's findings and conclusions. The fact that LifeScan sought the services of two outside investigative teams to approach a subsequent number of independent retail pharmacies to trace how and what DTS was sold, in and of itself, demonstrates a heightened interest by Plaintiff in determining how its strips were being distributed by such pharmacies. The fact that approximately 40% of those independent retail pharmacies were selling diverted strips, but no counterfeit strips, certainly constituted a red flag as to how these pharmacies (and similarly situated pharmacies, like those operated by Alliance) were regularly conducting business. Granted, as LifeScan argues, the subject of the surveys apparently did not include any LifeScan-affiliated pharmacies. Nor are the apparent findings of the survey fully dispositive of whether LifeScan knew or should have known that Alliance pharmacies were, in fact, engaged in diversion. However, the survey's findings may indeed be additive to a potential motion by Defendants premised on the assertion that LifeScan has failed to comply with the statute of limitations. It arguably strengthens Medsource's position that LifeScan was, or at least should have been, viewing the Alliance network with a heightened suspicion. LifeScan and the investigators argue that in addition to a lack of relevancy, producing the materials will constitute an undue burden and expense. However, in the Special Master's estimation, neither LifeScan nor the investigators have made an adequate showing, nor provided concrete information to support the proposition that the burden of producing these materials is so substantial that it outweighs its likely benefit. K2 and Kroll were retained for the specific purpose of gathering and producing the materials for LifeScan's review. Therefore, it is reasonable to assume that this project resulted in the production of a discreet set of documents by each investigative firm that were passed along to LifeScan and were (presumably) segregated by the investigative firms from work performed from other clients. Indeed, it appears as if the materials relating to the market surveys have been identified and counted and are available for production. Additionally, this litigation has been document-intensive since its inception, with substantial exchanges of documents among all of the parties. Given the high stakes and extensive damages at issue in this litigation, the burden and expense in producing these additional materials is relatively underwhelming. The Special Master wants to make clear, however, that the relief granted in this Order & Opinion is limited strictly to those materials derived from LifeScan's annual market surveys of independent retail pharmacies, to the extent that those materials still exist. LifeScan references in its submissions that, at least as to the materials in the possession of Kroll, there appear to be documents concerning a variety of other matters for which Kroll provided litigation support related to other litigations and potential litigations. Those materials are not the subject matter of this Order & Opinion and none of the parties are obligated to produce these documents. Therefore, in granting this motion, it is the Special Master's ruling that the following materials from the market surveys be produced: The results including all draft and final reports; The underlying data; Evidence collected such as chain-of-custody forms and sales receipts; and Documents as to the scope of work performed, including professional service agreements, statements of work and purchase orders. As to item number 3 above, in its motion, Mercato seeks to include within the evidence collected “boxes of DTS.” Assuming that this evidence exists – and there is a high likelihood that it may not – given the impracticality of actually producing boxes of test strips, the production shall instead require the identification of whether the boxes exist along with the description thereof. The parties can thereafter make arrangements for inspection of these items, if necessary. Finally, given that all four filed motions involve essentially the same documents and materials, there is a legitimate chance that the productions by LifeScan, K2, and Kroll may overlap and consist of duplicative materials. Conversely, it is also entirely possible that at this stage, one entity may have materials which are no longer in the possession of the others. Although it is not the intention of the Special Master to cause the parties to engage in unnecessary or duplicative efforts, the Court sees no other practical way to resolve this issue other than requiring LifeScan, K2, and Kroll to produce whatever materials they have in their possession which are responsive to this Order & Opinion. If the parties can mutually agree to a more practical exchange, the Court welcomes any agreed-upon alternative. VIII. Conclusion For the reasons previously set forth, it is the finding of the Special Master that Mercato's motion to compel the market surveys as to LifeScan, K2, and Kroll are GRANTED within the parameters set forth above. It is further ordered that LifeScan's motion for a protective order is DENIED. 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. [2] As will be set forth more fully, none of the pharmacies were affiliated with Alliance. [3] K2 is represented by the Patterson Belknap firm, Plaintiffs’ attorneys, in this motion. [4] It appears that this information was derived from a PowerPoint presentation exchanged in discovery as to K2's “Key Findings.” Although none of the Alliance-affiliated pharmacies were part of the survey, it is this finding which Mercato says is relevant to determining the scope of LifeScan's subjective knowledge of its alleged RICO injuries. [5] In addition to these arguments, LifeScan further notes that it offered to compromise by searching for documents from its Brand Protection group related to the independent pharmacy survey but unrelated to Alliance, but this was rejected by Mercato. [See letter brief, p. 5]. Additionally, LifeScan takes the position that the requests at issue were so vague that it was impossible for LifeScan to have understood that Mercato sought the investigative pharmacy surveys.