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 (CCC)(JSA), Civil Action No. 19-8761 (CCC)(JSA) United States District Court, D. New Jersey Filed December 09, 2023 Cavanaugh, Dennis, Special Master (Ret.) ORDER & OPINION OF THE SPECIAL MASTER JUDGE DENNIS CAVANAUGH, RET. AS TO CHRISTOS YATRAKIS’ MOTION FOR A PROTECTIVE ORDER AND TO QUASH OUTSTANDING SUBPOENAS *1 Before the Special Master is a motion filed by and on behalf of Christos Yatrakis (“Yatrakis” or “movant”), a non-party. The movant, a former Patterson Belknap (“Patterson”) associate, requests a protective order barring his deposition and quashing any outstanding subpoenas served by Defendant Mercato.[1] In deciding this motion, the Special Master has read and considered the following items: Movant's brief, declaration and exhibits in support of motion dated October 3, 2023; Mercato's letter brief in opposition and exhibits dated October 3, 2023; and Movant's reply brief. For reasons to be set forth in more detail below, the Special Master DENIES the motion. I. Procedural History and Factual Background Once again, since the Special Master writes primarily for the benefit of the parties, the Court will only address those pertinent procedural and factual events which form the basis of this motion. This litigation centers on what the parties generally refer to as the “Alliance fraud.” The fraud concerns 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”) whose lawsuits have been coordinated for discovery purposes. The Plaintiffs charge that a now bankrupt entity known as Alliance Medical Holdings, LLC (“Alliance”) through its officers, directors, investors and lenders schemed to sell non-retail DTS, but were reimbursed by pharmacy benefit managers (“PBMs”) for sales of retail strips, improperly profiting from the difference to the manufacturers’ detriment. Defendant Mercato was one of Alliance's investors and it is Mercato's subpoena which is the subject matter of this motion. As noted, the movant is a former Patterson attorney. The firm represents him in this motion. Yatrakis asserts that the subpoena seeks to elicit his testimony about a March 3, 2015 meeting held at Abbott Laboratories in Abbott Park, Illinois. The meeting, sometimes referred to as “an industry meeting,” involved Abbott, Bayer AG (also pharmaceutical manufacturers), Johnson & Johnson and Roche Diabetes Care, Inc. as well as other attorneys from Patterson. Although this will be addressed in more detail to follow, essentially, Yatrakis says that he has no recollection of attending this meeting, no recollection of any investigation into Alliance and he cannot recall communications with anyone regarding that entity. Moreover, he has not retained any documents regarding his representation of any clients while working at Patterson. *2 Movant now seeks a protective order barring his deposition and quashing any other outstanding subpoenas served by Defendant Mercato. II. Movant's Argument The movant argues that the deposition testimony sought relates to an “irrelevant” 2015 meeting of diabetes manufacturers. Yatrakis is listed as attending that meeting, but did not do so. Fourteen other individuals did, three of whom have been deposed and several others are scheduled to be deposed. Benjamin Fishman, an associate who did play a central role, has already given testimony. Yatrakis was an associate at Patterson from March 2009 to June 10, 2015, and his name appears “in a small set of documents produced by Plaintiffs.” However, he did not author a single document nor is he the sole recipient of any of the communications produced. In the limited set of non-privileged documents in which Yatrakis’ name appears, a few refer to the March 3, 2015 meeting. Nevertheless, Yatrakis does not recall the meeting “and is confident he did not attend.” Even if he did attend, the movant argues, he would not have unique knowledge about the meeting while others, including Lisa Smiley, a J&J employee, testified extensively about the meeting and additional attendees are scheduled to be deposed. Shortly after this meeting, Yatrakis left the firm and did not retain any documents from his work. Citing Kelley v. Enhanced Recovery Co., LLC, No. 15-6527, 2016 U.S. Dist. LEXIS 140147, 2016 WL 8673055, at *2 (D.N.J. Oct. 7, 2016), the movant argues that discovery from a non-party is unduly burdensome where the information sought has already been, or can be obtained, from other means. This meeting has already been the subject of extensive discovery, including the depositions referenced above, so testimony from Yatrakis about a meeting he believes he did not attend would be cumulative and burdensome. While Mercato's counsel speculates that Yatrakis was the “tip of the spear” for LifeScan's investigation into Alliance test strip diversion, this theory is contradicted by the record, i.e., Yatrakis appears on only a small number of produced communications and he was not the author of any, while Benjamin Fishman, an associate who was involved, never even mentioned Yatrakis during his deposition. The movant also argues that “care must be taken to assure that the depositions of in-house and outside counsel are necessary and appropriate and proportional to the needs of the case,” citing Younes v. 7-Eleven, Inc., No. 13-3500, 2015 U.S. Dist. LEXIS 192172, 2015 WL 12843884, at *5 (D.N.J. Mar. 11, 2015). The courts in this District generally consider three factors in determining whether deposing an attorney will cause undue burden, that is, “(1) the relative quality of information in the attorney's knowledge...whether the deposition would be disproportional to the discovering party's needs; (2) the availability of information from other sources that are less intrusive...; and (3) the harm to the party's representational rights of its attorney if called upon to give deposition testimony.” The movant asserts that the factors weigh against allowing Yatrakis to be deposed. *3 First, the quality of the information known by Yatrakis is “minimal to non-existent” and is particularly so here since he does not have any reason to believe he attended the meeting “which is the only relevant non-privileged subject-matter that Mercato has identified.” There is also the risk that inquiring into his more general knowledge about the claims “are likely to tread on privileged information” or work product he created while employed as outside counsel to LifeScan. Secondly, as set forth previously, the non-privileged information has been available from other sources – either individuals who have already been deposed or others who will be deposed – a less burdensome means. Third, while Yatrakis no longer represents LifeScan, allowing him to be deposed would have a chilling effect on the adversarial process including ongoing attorney-client communications. The movant also asserts that given the timing of the subpoena – on the eve of the last discovery deadline – this action seems to be an adversarial tactic designed to prolong litigation. Finally, the movant argues that the subpoena should be quashed because Yatrakis is a high ranking executive at his current employer. Thus, there is a rebuttable presumption that when a party seeks to depose such a high level corporate official, there exists a significant burden upon the deponent, citing United States ex rel. Galmines v. Novartis Pharmaceuticals Corp., No. 06-3213, 2015 U.S. Dist. LEXIS 109997, 2015 WL 4973626, at *2 (E.D. Pa. Aug. 20, 2015). Here, Defendants cannot rebut the presumption that deposing Yatrakis represents a significant burden and that they have the option of seeking the same information through other means. Since Mercato has not established that the information it seeks cannot be obtained from other witnesses or discovery devices, a protective order is appropriate, citing Harapeti v. CBS TV Stations Inc., No. 21-15675, 2021 U.S. Dist. LEXIS 258600, 2021 WL 8316391, at *3 (D.N.J. Dec. 1, 2021). III. Mercato's Opposition In opposing the motion, Mercato says that the motion for a protective order is “predicated on a falsehood.” That is, Yatrakis did attend the March 3, 2015 industry meeting by phone, a fact which is memorialized in the LifeScan notes produced in support of the motion. Those notes, which are largely in the form of a shorthand, contain an entry which reads, “Christos’ Esq.: There is only so far to take this privately, so if can take this to govt and be able to say all our competitors have seen this, will cooperate with you, what you're seeing out there, why its impt for the gov to go do something about this including govt undercover.” Additionally, after the meeting, an Abbott representative circulated an email which listed Yatrakis as an attendee. Therefore, says Mercato, there is no question that Yatrakis attended and participated in the meeting and that the Patterson law firm knew this when it filed its motion. Nevertheless the firm let Yatrakis submit a false declaration in which he stated that to his best recollection he was not present, did not participate in the meeting and would not have attended the meeting otherwise than in person. Mercato asserts that the Patterson firm's failure to correct Yatrakis’ mistaken recollection constitutes bad faith. Mercato asserts that Yatrakis’ participation in the March 2015 industry meeting justifies his deposition since it is significant to Defendant's statute of limitations defense. That is, the meeting involved extensive discussions about Alliance, including statements by Roche representatives and others as to how they discovered the diversion. Moreover, Roche's reference (in the notes) to its exposure, according to Mercato, reveals that it had previously identified its alleged injury more than four years before bringing suit.[2] The meeting also involved extensive discussion about NDC fraud, the scheme alleged here. The meeting also included a discussion “led by Patterson attorney Geoffrey Potter” about bringing claims against principals of pharmacies engaged in NDC fraud. All of this, Mercato urges, bears strongly on its statute of limitations defense. *4 Mercato anticipates Yatrakis will testify about his involvement in the Alliance investigation, citing, as an example, an email he received from a LifeScan employee, Susan Liu, as to information provided by KPMG connecting Medsource (Alliance's predecessor) and nearly 200 pharmacies – a “red flag” because “LifeScan knew those pharmacies were not purchasing retail product.” Medsource also alludes to Yatrakis’ LinkedIn page in which he lists his work experience at Patterson to include “supervis[ing] investigations related to several, multi-million dollar anti-counterfeiting matters...against manufacturers and distributors of counterfeit products...” Yatrakis’ testimony, Mercato states, will corroborate Benjamin Fishman's testimony that he was personally aware in November 2014 of LifeScan's concerns that Alliance was engaged in fraudulent billing practices and that by May 2015, his [and Yatrakis’] employer, Patterson Belknap, had theorized that Alliance was engaged in a pattern of fraudulent practices. Finally, the deposition will not be unduly burdensome. Mercato has agreed to limit it “to a reasonable duration.” The fact that Yatrakis is a senior executive at another company is insufficient to preclude the deposition. IV. Movant's Reply The movant reemphasizes that the deposition is unnecessary and that it is simply designed to harass Plaintiff's counsel. As to Mercato's position that Yatrakis was, in fact, a participant in the meeting, the movant says that Yatrakis expressly acknowledges that he is referred to in the documents but does not believe he attended the meeting. Furthermore, the fact that he was LifeScan's outside counsel in 2015 “is not a reason in favor of allowing his deposition; it is a reason against it.” (Emphasis in original). Generally, Yatrakis reemphasizes that Mercato has shown nothing to suggest that the deposition will elicit new, unique information and is likely to be privileged, i.e., “any communications with LifeScan from the subject would be attorney-client privileged communications.” Mercato merely cites one email (concerning information compiled by KPMG) and a second email in which Yatrakis is one of 14 individuals in the chain, including two witnesses who have been deposed and a third scheduled to be. Mercato admits that it is merely seeking duplicative information to corroborate testimony rendered by Benjamin Fishman and fails to identify a “single new avenue to explore” through Yatrakis. The LinkedIn profile merely indicates that Yatrakis maintained a general anti-counterfeiting practice so this is no basis to think he had specific involvement with Alliance. Given the cumulative nature of Yatrakis’ testimony, requiring him to sit for a deposition would be unduly burdensome and his role as an attorney for LifeScan “makes it difficult to disentangle privileged information from non-privileged information.” Finally, given Yatrakis’ “significant responsibilities” in his current role as general counsel for a multinational company, this fact is sufficient to show that there is a “particularized burden” in sitting for the deposition, citing United States Ex rel. Galmines, 2015 WL 4973626. Mercato's offer to limit deposition time does not obviate the need for Yatrakis to disrupt his schedule in order to sit for a deposition. V. Review of Exhibits Submitted with Motion The movant has submitted a number of exhibits in support of the motion including emails, deposition excerpts and notes produced in discovery. Keeping in mind that these non-privileged materials were provided by LifeScan during discovery and conceivably do not represent all of the documents which may bear Yatrakis’ name, here is a summary. *5 Exhibit 1. Email dated September 25, 2014, from Susan Liu (a J&J employee) to more than a dozen individuals at that company as well as attorneys for the Patterson firm. Yatrakis is the sole cc. The subject is “Medsource” and the note reads simply, “Scheduling this time to regroup on Medsource,” referencing a conference call to be held on October 14, 2014. There are a number of “required” attendees listed (J&J employees and Patterson attorneys) while Yatrakis is listed as an “optional attendee.” Exhibit 2. This is a heavily redacted email string from an individual who appears to be affiliated with Abbott Pharmaceuticals and is dated March 3, 2015. It is addressed to attorneys and employees of J&J, Roche and Bayer, including Yatrakis. The subject is, “Proactively Addressing Fraud Meeting – Follow Up.” The email thanks the recipients for “participating in this morning's meeting.” Also attached is an “attendee list” in which Yatrakis is named as a Patterson Belknap associate. Exhibit 3. These are excerpts from the deposition of Lisa Smiley, a J&J employee, in which she is questioned about the March 2015 meeting. She is shown the attendee list and is merely asked whether she saw on the list the names of two associates from Patterson – Yatrakis and Benjamin Fishman. She confirmed seeing the names, and was questioned no further in this regard. Exhibit 4. These are typed notes entitled, “Industry Meeting (Abbott, LifeScan, Roche, Bayer).” With the exception of two or three sentences, the document is not redacted. On page 4 of the document [Bates number LFS_00008142], there is, in fact, a reference to Yatrakis. Midway through the top paragraph, it reads: “Christos’ Esq.: There is only so far to take this privately, so if can take this to govt and be able to say all our competitors have seen this, will cooperate with you, what you're seeing out there, why its impt for the gov to go do something about this including govt undercover[.]” Exhibit 5. This appears to consist of further notes regarding the meeting, although this is not clear. There is also a document on the letterhead of CVS Caremark entitled “Audit Tips” dated August 3, 2016. There is one document, headlined “Proactively Addressing Fraud – Diabetic Test Strips,” which again refers to the March 3, 2015 meeting at Abbott in which Yatrakis is again referenced as an attendee. VI. Legal Standard Although the parties do not disagree as to the fundamental legal standard which applies in deciding this motion, the Special Master will very briefly address that standard here. Once again, this motion involves the interplay between Federal Rule of Civil Procedure 26 (General Provisions Governing Discovery) and Federal Rule of Civil Procedure 45 (Subpoena). Federal Rule of Civil Procedure 26(b)(1) provides that parties may obtain relevant discovery regarding any non-privileged matter that is relevant to any party's claim or defense and proportional to the needs of the case. The Rule goes on to state that the court should consider “the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit[.]” Federal Rule of Civil Procedure 45, in turn, governs discovery by way of subpoena. Among other things, the rule states that an attorney who is responsible for issuing and serving a subpoena “must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena.” Fed. R. Civ. P. 45(d)(1). The Rule goes on to provide a mechanism for challenging a subpoena alleged to cause an undue burden or expense, Fed. R. Civ. P. 45(d)(3), which reads, in pertinent part: *6 (3) Quashing or Modifying a Subpoena. A. When Required. On timely motion, the court for the district where compliance is required must quash or modify a subpoena that: i. fails to allow a reasonable time to comply; ii. requires a person to comply beyond the geographical limit specified in Rule 45(c); iii. requires disclosure of privileged or other protected matter, if no exception or waiver applies; or iv. subjects a person to undue burden. While, as movant argues, under Rule 45 a non-party is afforded greater protection from discovery than a normal party (see, Chazanow v. Sussex Bank, Civil Action No. 11-1094, 2014 U.S. Dist. LEXIS 89279, 2014 WL 2965697, at *3 (D.N.J. July 1, 2014)), a party seeking a protective order under the rule still has the burden of showing that good cause for the protective order exists. Fellner v. Tri-Union Seafoods, L.L.C., No. 2:06-cv-688, 2011 U.S. Dist. LEXIS 168270, at *7 (D.N.J. Mar. 11, 2011). Further, establishing good cause requires the movant to specifically demonstrate that disclosure “will cause a clearly defined and serious injury,” Sloan v. Cisneros, No. 1:21-cv-01477, 2021 U.S. Dist. LEXIS 194505, at *5-6 (E.D. Cal. Oct. 6, 2021). VII. Analysis and Findings The issue before the court can be summarized in two questions: (1) Is it reasonable to believe that the movant attended the industry meeting and, (2) if so, is his deposition unnecessary since his testimony may be cumulative of other testimony rendered or to be rendered in this case? As to the first question, the Special Master concludes that Mercato has made a sufficient showing that Yatrakis was in “attendance” at the meeting by phone and that he participated in the discussion. The notes submitted in conjunction with this motion, along with the documents and emails summarized in section V of this Order and Opinion, raise a reasonable inference that the movant, despite what he recalls years later, was invited to the meeting and participated by way of a phone call. At the very least, there is a sufficient showing of his “presence” (virtual or otherwise) to make out a prima facie demonstration that despite his declaration – which does not with one hundred percent certainty rule out his participation – he was one of the Patterson attorneys in attendance. Whether the movant's testimony is unnecessary since it may be cumulative of testimony rendered or to be rendered by other witnesses is a closer question but the Special Master concludes that Mercato is entitled to take the deposition and explore this issue. Yatrakis may very well testify that either he cannot recall what transpired at the meeting or that his recollection cannot be refreshed. On the other hand, having his memory refreshed, may lead to testimony which is entirely new and significant. No matter what transpires, however, the movant has failed to provide sufficient support for the proposition that he is immune from giving testimony. Defendant has demonstrated that this industry meeting may well be of significance to its statute of limitations defense as it involved key players in the pharmaceutical industry brought together purposely to address DTS product diversion and specifically the “NDC fraud issue.” The notes also reflect that Medsource, (Alliance's predecessor) was a notable topic of discussion. Certainly, an industry meeting among DTS manufacturers in which strip diversion appears to have been the central topic, which occurred years before LifeScan initiated suit, and in which Alliance's predecessor's activities were directly addressed is broadly relevant to this litigation and specifically to Mercato's asserted statute of limitations defense. Indeed, LifeScan does not argue in opposition to this motion that the general subject matter of the industry meeting is without relevance. Therefore, the testimony of witnesses who participated in the meeting, while arguably somewhat duplicative, nevertheless represent, in the Special Master's view, relevant discovery and discovery which is proportional to the needs of the case. The fact that some of Yatrakis’ testimony (should he remember this event) might overlap or duplicate testimony rendered by other participants does negate the fact that he was present for and potentially knowledgeable about what transpired at what seems to be a key industry event. *7 The movant also argues that preparing for and appearing at the proposed deposition constitutes an undue burden for Yatrakis. The Special Master finds, however, that this position is without substantial merit. While the need for a witness to take time from his or her business day is without a doubt an inconvenience, it does not under these circumstances constitute an undue burden and certainly does not approach a form of harassment aimed at him or his counsel. The movant also mistakenly applies what is commonly called the “Apex Doctrine” to support his position. As the Special Master views these facts, the “Apex Doctrine” has no bearing on the decision. That doctrine has been described as an “analytical framework” used by courts to assess whether to permit the depositions of individuals at the “Apex” of corporations and other entities. See, United States Ex rel. Galmines, 2015 WL 4973626 at *1. This doctrine recognizes a rebuttable presumption that “depositions of high-level officers severely burdens those officers and entities they represent, and that adversaries might use this severe burden to their unfair advantage.” Id. at *3. In other words, the doctrine is designed to protect high level executives – whose companies are parties to the lawsuit – from appearing for depositions to testify as to mundane matters in which the executive played no part in the events which form the basis of the lawsuit, i.e., “where the subject matter of the deposition would involve merely the company's “day to day operations” or something manifestly immaterial in view of the total scope of the company's overall operations, such as slip-and-fall cases or a routine claim of trademark infringement, such facts might be said to tend to favor the application of the ‘Apex Doctrine’ to preclude the requested deposition.” See, In re Lincoln Nat'l COI Litig., No. 16-cv-6605, 2019 U.S. Dist. LEXIS 224988, 2019 WL 7581176 at *2 (E.D. Pa. Dec. 5, 2019). This rebuttable presumption certainly does not apply to the movant. He is a former attorney of a firm which represents a party and he is now employed as general counsel for another company. He is not now, nor has he been, a high level executive in the employ of one of the litigants. Accordingly, the presumption does not apply. With that said, the movant's concern with the possible infringement of the attorney-client privilege is a legitimate concern, but it is premature. Communications at the meeting itself are not facially privileged, nor does LifeScan assert this is the case. Should Yatrakis be questioned about his communications with LifeScan, the client, during his deposition, that issue can be addressed when and if it happens. Accordingly, for the reasons stated here, the motion for a protective order and to quash any outstanding subpoenas is DENIED. The Special Master does encourage, however, that the parties (as offered by Mercato) limit the deposition to a “reasonable duration.” The Special Master will not determine what that duration may be and will rely upon the attorneys to reach an agreement in that regard. VIII. Conclusion For the reasons set forth above, the motion is DENIED. Date: December 8 2023 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] Medsource, LifeScan's predecessor, is specifically referenced in this regard. That meeting note reads, in pertinent part, “Medsource (UT) aka Simple Med Supply, Medsource Direct, Medsource Direct, Inc. Roche: Medsource has hundreds of pharmacies associated with them and there's claim related with those and associated w/ [managed care organization]. They [identified] seven biz associated directly w/ Medsource... Alliance Health is the ‘reimbursement arm’ of Medsource and is owned by the same principle. Pharmacies are somehow getting reimbursed. They found it [because] Medsource had NO purchases but had all of these rebates and they didn't find Medsources’ names on any distributors/wholesalers’ sales data... So...they are buying from unauth. sources and submitting to MCO for rebates. Those pharmacies are still getting reimbursement from other MCOs, but Roche has eliminated their exposure.”