UNITED STATES OF AMERICA, et al. v. KINDRED HEALTHCARE, INC., et al CIVIL ACTION NO. 16-00683-KSM United States District Court, E.D. Pennsylvania Filed November 13, 2024 Marston, Karen S., Special Master REPORT AND RECOMMENDATION OF SPECIAL MASTER *1 Presently before the Special Master for decision are Relator's Motion for a Protective Order or. in the Alternative, Motion to Quash Subpoena Served on David Marks (“Mr. Marks”) and the law firm of Marks Balette Young & Moss (the “Marks Law Firm”)[1] filed on JAMS Access on September 13, 2024 (the “Motion”). Kindred's[2] response in opposition thereto dated September 24, 2024 (“Kindred's Opposition”), Relator's Reply dated October 8. 2024 (“Relator's Reply”). Relator's post-hearing brief dated October 11, 2024 (“Relator's PostHearing Brief”) and Kindred's post-hearing brief dated October 11, 2024 (“Kindred's Post-Hearing Brief”).[3] Oral argument was held on October 9, 2024 (the “Hearing”). Attached hereto is a proposed order the Special Master respectfully recommends the court adopt for the reasons set forth herein.[4] I. BACKGROUND A. The Motion. Relator seeks a protective order which relieves Mr. Marks of any obligation to comply with a subpoena dated August 28, 2024 served on Mr. Marks by Kindred (the “Subpoena”). In the alternative, Relator requests that the Subpoena be quashed. Mr. Marks and the Marks Law Firm are one of the attorneys/law firms representing Relator in this case. The Marks Law Firm also has represented numerous other plaintiffs in litigation against Kindred over the past twenty years. (Motion at 1.) B. The Young Case. The Subpoena is based upon an assertion by Kindred that Mr. Marks violated a Protective Order governing confidential information Kindred produced in the Young v. Heritage Manor case filed by the Marks Law Firm on December 11, 2014 (the “Young Case”), alleging the wrongful death of a Kindred resident. The Young Case was initially filed in state court in Graves County, Kentucky. Pursuant to an arbitration agreement between the parties, the Young Case was referred to arbitration (the “Young Arbitration Proceeding”). (Motion at 2 and 2 n.1.) Relator was the Director of Nursing at Heritage Manor from April to June 2014 and testified in the Young Arbitration Proceeding as both a fact witness and an expert witness, providing an affidavit dated July 21, 2015 (“Relator's Affidavit.” Motion at Ex. D) and deposition testimony on September 16, 2015 (“Relator's Deposition,” Motion at Ex. C). See Motion at 3-4. The issues in the Young Case included, inter alia, staffing levels at Heritage Manor. *2 On July 7, 2015, the arbitrator in the Young Case (the “Young Arbitrator”) denied Kindred's motion to keep the Young Arbitration Proceeding confidential. See Order on Confidentiality of Proceedings (“Young Confidentiality Order”), Motion at Ex. A. On July 10, 2015, after granting the plaintiffs' motion to compel and ordering Kindred to produce numerous documents, the Young Arbitrator issued a Protective Order directing, subject to Kindred marking the documents as “confidential and for use in this case only,” that “[a]ll documents produced subject to [the] Protective Order shall be use[d] by Plaintiff(s) and her attorneys and staff in this case only and may be given only to the parties in this action, their counsel and staff as necessary, and witnesses, as necessary, in the prosecution and defense of this case, unless otherwise agreed upon by counsel for both parties.” See Protective Order at 1-2 (“Young Protective Order”), Motion at Ex. B. As a fact and expert witness at the Young Arbitration Proceeding. Relator viewed documents subject to the Young Protective Order. C. The Subpoena. Pursuant to Federal Rule of Civil Procedure 45, Kindred served the Subpoena on Mr. Marks, see Motion at Ex. 3, seeking production of “Kindred Information” from Mr. Marks, the Marks Law Firm, and their agents and/or representatives. See Subpoena at 2 ¶ 11. The terms “Kindred Information” is defined in the Subpoena as follows: The term “Kindred Information” means any documents or other information you received from Defendants or any Defendants SNF through or as a result of litigation you filed against Defendants or any Defendant SNF, other than documents or information produced by Defendants in United States ex rel. Sirls v. Kindred Healthcare et al. (Subpoena at 2 ¶ 10.) “Defendant SNF” is defined as any skilled nursing facility owned or operated by the Kindred Defendants. Id. at 2 ¶ 9. In the Subpoena. Kindred requests four categories of documents: 1. All Kindred Information You obtained or otherwise received prior to February 11, 2016, that You relied upon in drafting the Complaint, First Amended Complaint, and/or Second Amended Complaint in United States rel. Sirls v. Kindred Healthcare et al. 2. All Kindred Information You obtained or otherwise received prior to February 11, 2016, that You relied upon in preparing Timothy Sirls for his deposition on August 22, 2024. 3. All Kindred Information You obtained or otherwise received prior to February 11, 2016, that You relied upon in drafting any discovery request issued to Defendants in United States ex rel. Sirls v. Kindred Healthcare et al. 4. All Kindred Information You obtained or otherwise received prior to February 11, 2016[,] that you provided to any testifying or consulting expert you retained to support United States ex rel. Sirls v. Kindred et al. (Subpoena at 4-5 ¶¶ 1-4.) See also Motion at 7. Kindred asserts that the Subpoena is warranted to assess the scope of Mr. Marks misuse in the instant litigation of Kindred documents produced in the Young Case in violation of the Young Protective Order. Some of the requested Kindred Information has been produced by Mr. Marks. Mr. Marks asserts as follows: Without waiving any privileges or work-product protections. Relator's counsel affirms that in drafting the original Complaint, the First Amended Complaint and/or the Second Amended Complaint, Mr. Marks and (the Marks Law Firm] did not rely upon any “Kindred Information” that was confidential and where the use of such documents or information would violate a protective order. Marks Decl at ¶ 5. Further, in drafting and [sic] discovery request issued to Defendants in this matter. Mr. Marks and [the Marks Law Firm] did not rely upon any “Kindred Information” that was confidential and where the use of such documents or information would violate a protective order. Id. at ¶ 5. Additionally, [the Marks Law Firm] has not provided any “Kindred Information,” as defined in the subpoena, to any testifying or consulting expert retained in United States ex rel. Sirls v. Kindred Healthcare et al. Id. at ¶ 6. *3 (Motion at 7.) See also Marks Declaration. Mr. Marks requests relief from the Subpoena on the following grounds: (1) he never used any documents subject to the Young Protective Order in preparation of the original or amended complaints in this matter, or in preparing Relator or any expert in this matter; and (2) the requests made in the Subpoena call for core work product which would reveal protected information. The Special Master finds significant that Kindred did not raise this issue until nearly nine years after the Complaint initiating this matter was filed and at the end of a lengthy and difficult discovery period. See Motion at 9-10. II. DISCUSSION A. Protective Order. Federal Rule of Civil Procedure 26(c) allows a “party or person from whom discovery is sought ... to move for a protective order.” (Fed. R. civ. p 26(c)(1).) The Rule states generally, that “[t]he court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense,” and lists several examples of the orders the court may order. Id. Rule 26(c)(1)(A) provides that the court may enter an order “forbidding the disclosure or discovery”; Rule 26(c)(1)(D) provides that the court may enter an order “forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters.” B. The Relator's Affidavit and the Relator's Deposition are Not Subject to the Limitations of the Young Protective Order. At issue are Relator's Affidavit and the transcript from Relator's Deposition, including certain emails that were attached as Exhibits thereto addressing, inter alia, staffing levels related to the Young Case.[5] (Motion at 8, Marks Decl at ¶ 7; Kindred's Opposition at 4-6.) Specifically, Kindred refers to Relator's deposition in this matter in which Relator was questioned regarding staffing numbers in paragraph 69 of the original complaint that were similar to staffing numbers used in the Young Case. Kindred asserts that the staffing numbers in the complaints in this case. Complaint at ¶ 69. and Second Amended Complaint at ¶ 88, were based upon confidential information from the Young Case and. also, that confidential emails from the Young Case were provided to Relator by counsel to prepare Relator tor his deposition in this case. (Kindred's Opposition at 4-6.) *4 “A protective order should be read in a reasonable and common sense manner so that its prohibitions arc connected to its purpose.” On Command Video Corp. v. LodgeNet Ent. Corp., 976 F Supp. 917, 921 (N.D. Cal. 1997). Alter consideration of the Young Confidentiality Order and the Young Protective Order, and the submissions of the parties, the undersigned finds that to the extent Mr. Marks utilized Relator's Affidavit and/or Relator's Deposition transcript in this case, he would not be in violation of the Young Protective Order since those documents were not marked “confidential and for use in this case only” by Kindred. Further, any exhibits attached to either Relator's Affidavit or Relator's Deposition transcript, to the extent they originally were marked “confidential and for use in this case only,” subsequently lost their confidential status when attached to non-confidential documents and/or used at the nonconfidential Young Arbitration Proceeding. Kindred's assertion that all documents it produced in the Young Case were subject to the limitations in the Young Protective Order would render the Young Arbitrator's requirement in the Young Protective Order that Kindred mark documents subject to the order as “confidential and for use in this case only” meaningless. The Special Master cannot impose restrictions on Mr. Marks not included in the Young Protective Order. Mr. Marks represents that the source of the staffing numbers contained in the Complaint at ¶ 69 and the Second Amended Complaint at ¶ 88 was Relator's Affidavit. See Motion at 3 (citing Relator's Affidavit at ¶ 20)[6] At stated above. Relator's Affidavit was not marked “confidential and for use in this case only” as required by the Young protective Order. Additionally, the staffing numbers were contained in Exhibit I to Relator's Deposition transcript, which was not marked “confidential” for purposes of the Young protective Order. Consequently, Mr. Marks' use of the Relator Affidavit and the Relator Deposition in drafting the complaints in this matter docs not violate the Young Protective Order. Kindred further argues that because portions of the Relator's Affidavit addressing the staffing levels was based upon protected documents, Relator's Affidavit became subject to the Young Protective Order even though the Affidavit itself was not marked “confidential” by Kindred. See Kindred's Opposition at 6 (“That Mr. Marks and [the Marks Law Firm ] used the numbers in the Kindred document produced to Mr. Marks to draft Relator's July 2015 affidavit and then used the affidavit to draft the complaint in this case seven months later docs not remove or exempt the information from the scope of the Protective Order.”) Kindred's argument is unpersuasive. The Young Protective Order clearly required Kindred to mark documents subject to the order as “confidential and for use in this case only.” Relator's Affidavit and Relator's Deposition transcript were not so marked and, therefore, those documents and all exhibits thereto are not subject to the Young Protective Order. Lastly, Kindred urges that the very fact that Mr. Marks sought an agreement before producing these documents to Kindred in discovery in this case proves that Mr. Marks knew the documents at issue were subject to the Young Protective Order. See Kindred's Opposition at 4. Mr. Marks has been very clear that he is aware of the requirements of the Young Protective Order. Mr. Marks states that “in an abundance of caution,” he informed Kindred that Relator “had numerous documents that were potentially responsive” to Kindred's discovery requests, “some of which were arguably subject” to the Young Protective Order; Mr. Marks withheld production of those documents “until alter Relator's counsel had sought and received from Kindred an agreement [dated June 12, 2024] that the production of the Young documents in this case would not violate the protective order.” (Motion at 8.) Mr. Marks' request for an agreement from Kindred prior to producing documents that might violate the Young Protective Order's restrictions was a proper exercise of his duties and not an admission that all such documents produced were subject to the Young Protective Order. Kindred argues that Mr. Marks violated the Young Protective Order when he permitted Relator to review documents subject to the June 12, 2024 agreement with Kindred in preparation for Relator's deposition in this matter. The Special Master rejects this argument. Kindred agreed that Mr. Marks' production of the documents requested by Kindred would not violate the Young Protective Order. Moreover, Relator had previously seen the documents at issue as a fact and expert witness in the Young Case. As noted by Mr. Marks, with respect to the documents covered by the June 12, 2024 agreement. “|Relator] had been provided certain of these documents prior to his deposition in the Young case on September 16, 2015. However, [Relator] was not provided any of these documents a second time until after the June 12, 2024 agreement.” (Relator's Post-Hearing Brief at 5.) Kindred used these documents to question Relator at his deposition. *5 Kindred's stated basis for the Subpoena was to discover the extent of Mr. Marks' “misuse” of documents in this litigation that Kindred claims were subject to the limitations of the Young Protective Order. See Kindred's Opposition at 1 (“Kindred does not take lightly that it has subpoenaed opposing counsel for documents on the basis of opposing counsel violating a protective order.”) The Special Master concludes that for the reasons set forth herein, to the extent Mr. Marks used Relator's Affidavit and Relator's Deposition transcript, and any exhibits attached thereto in this litigation, he did not violate the Young Protective Order and Relator's Motion for a Protective Order relieving Mr. Marks of the obligation to respond to the Subpoena should be granted. C. Work Product Doctrine. Additionally, Mr. Marks asserts that the information requested by Kindred in the Subpoena is subject to the protections of the work product doctrine. (i) Work Product Doctrine. A subpoena “must fall within the scope of proper discovery under Fed. R. Civ. P. 26(b)(1).” first Sealord Sur. v. Durkin & Devries Ins. Agency, 918 F. Supp. 2d 362, 382 (E.D. Pa. 2013). Generally, a party may obtain discovery regarding matters that are not privileged and that are not attorney work product. “([A] party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party's attorney, consultant... or agent).” Fed. R. Civ. P. 26(b)(3)(A). The party asserting the work product doctrine bears the burden of proving its applicability. Fed. Trade Comm'n v. Abbvie, Inc., 2016 WL 4478803, at *6 (E.D. Pa. Aug. 25, 2016). The work product doctrine provides that “a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative.” Fed. R. Civ. P. 26(b)(3). See Upjohn Co. v. United States, 449 U.S. 383, 399 (1981); Hickman v. Tavlor, 329 U.S. 495, 509-12 (1947). See also In re Cendant Corp. Sec. Litig., 343 F.3d 658. 661-62 (3d Cir. 2003) (The work product doctrine “shelters the mental processes of the attorney, providing a privileged area within which he can analyze and prepare his client's case.”) (quotation omitted). See also King Drug Co. of Florence, Inc. v. Abbott Labs., 2023 WL 2646926. at *1 (E.D. Pa. Mar. 27, 2023) (same). Moreover, when a Rule 45 subpoena is directed to an opposition party's attorney, such as Mr. Marks, courts tend to scrutinize the request with a “jaundiced eye.” Patrick v. Equifax Info. Servs., MX, 2024 WL 4404187. at * 3 (D.N.J. Oct. 3, 2024) (quoting 8A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2102 at 27 (2d ed. 1994)). Relator asserts that the documents requested in the Subpoena are “core work product.” Core or “opinion work product includes such items as an attorney's legal strategy, his intended lines of proof, his evaluation of the strengths and weaknesses of his case, and the inferences he draws from interviews with witnesses.” Sporck v. Peil, 759 F.2d 312, 316 (3d Cir. 1985). As explained by the court in In re Cendant Corp. Sec. Litig, 343 F.3d 658, 663 (3d Cir. 2003). Rule 26(b)(3) establishes two tiers of work product protection: [F]irst. work prepared in anticipation of litigation by an attorney or his agent is discoverable only upon a showing of need and hardship; second “core” or “opinion” work product that encompasses the “mental impressions, conclusions, opinion, or legal theories of an attorney or other representative of a party during the litigation” is “generally afforded near absolute protection from discovery.” ... Thus, core or opinion work product receives greater protection than ordinary work product and is discoverable only upon a showing of rare and exceptional circumstances. *6 Id. (quoting In re Ford Motor Co., 110 F.3d 954, 962 n.7 (3d Cir. 1997)). When the discovery sought would reveal core or opinion work product, the burden shifts to the requesting party to establish “a heightened showing of extraordinary circumstances.” In re Cendant Corp., 343 F.3d at 664 Counsel's opinion work product is “only discoverable upon a showing of rare and exceptional circumstances.” Id. at 668 (citing Hickman, 329 U.S. at 512). If the discovery would reveal “the mental impressions, conclusions, opinions, or legal theories of counsel, the inquiry ends, and no discovery will be permitted except possibly in rare and exceptional circumstances,” United States v. Vepuri, 623 F. Supp. 3d 512, 516 (E.D. Pa. 2022). (ii) The Documents Requested are Core Work Product. The documents requested in the Subpoena go to the mental impressions, conclusions, opinions, or legal theories of counsel and arc clearly core work product entitled to near absolute protection From discovery. As detailed above, Kindred seeks four categories of documents in the Subpoena: (1) Kindred Information relied upon in drafting the Complaint, first Amended Complaint, and or Second Amended Complaint in the instant litigation; (2) Kindred Information obtained or otherwise received prior to February 11, 2016, relied upon in preparing Relator tor his deposition on August 22, 2024; (3) Kindred Information obtained or otherwise received prior to February 11, 2016, relied upon in drafting any discovery request issued to Defendants in the instant litigation: and (4) Kindred Information obtained or otherwise received prior to February 11, 2016 that was provided to any testifying or consulting expert retained to support the instant litigation. Kindred has demonstrated no rare or exceptional circumstance which would justify production of the documents. Kindred has not established that an exception should apply. Relator's Motion tor a Protective Order to protect these documents from production should be granted. (iii) Potential Deposition of Mr. Marks. In the Subpoena, Kindred seeks only documents from Mr. Marks. However, at the Hearing. Kindred's counsel anticipated a subsequent deposition of Mr. Marks depending on the production. While the Federal Rules of Civil Procedure do not bar the deposition of attorneys, or even an attorney for a party in the litigation, the “general rule is that the deposition of counsel to an adversary is disfavored.” Patrick v. Equifax Info. Servs., LLC, 2024 WL 4404187, at *3 (citation omitted). In determining whether a deposition of opposing counsel is permissible, courts in the Third Circuit Court of Appeals have applied the test set forth in Shelton v. Am. Motors Corp., 805 F.2d 1323 (8th Cir. 1986). The Shelton analysis was established to guard against the harassing practice of deposing opposing counsel ... [that] prolongs and increases the cost of litigation, demeans the profession, and constitutes an abuse of the discovery process, Id. at 1330. Under this test, the party seeking to depose opposing trial counsel must establish: “(1) no other means exist to obtain the information than to depose opposing counsel; (2) the information sought is relevant and not privileged; and (3) the information is crucial to the preparation of the case.” Id. at 1327. And see. e.g., U.S ex rel. Salomon v. Wolff, 2022 WL 989317, at *2(D.N.J. Mar. 23. 2022). aff'd, 2023 WL 6058833 (D.N.J. Sept. 18, 2023); States Farm Mut. Auto. Ins. Co. v. Stavronolskiy, 2017 WL 3116284, at *2 (E.D. Pa. July 21, 2017).[7] *7 For the reasons that follow, the Special Master concludes that Kindred has not satisfied all of the Shelton factors, and any future request to depose Mr. Marks should be denied. Specifically, Kindred has not established that the information sought in the Subpoena is not privileged, or that the information is crucial to Kindred's preparation for this case. This is clearly core work product that is subject to an almost absolute privilege. Kindred has not shown that this privilege should be disregarded. In addition, Kindred has not shown that this information is crucial to the preparation of its defense in this case. Even if alter production of the requested documents and subsequent deposition of Mr. Marks, Kindred were able to show that there some documents subject to the Young Protective Order were used by Mr. Marks in preparation of the complaints in this case, that is not crucial to Kindred's defense to the merits of the instant litigation. If anything, it presents a potential collateral issue that will divert the parties' and the court's resources to an issue that is not crucial to deciding the merit of this long pending case. Especially relevant is the fact that this case has been pending for almost nine years and the issues raised in the Subpoena are being presented for the first time at this very late stage. An extremely lengthy and difficult course of discovery is almost complete: dispositive motions are due to be filed. The issues raised in the Subpoena divert the parties attention from the matters in this case.[8] III. CONCLUSION For all the above reasons, the Special Master finds that: 1. Relator's Affidavit, Relator's Deposition and transcript, and all exhibits attached to the documents, are not subject to the limitations of the Young Protective Order. 2. The documents Kindred seeks in the Subpoena are protected from production In the work produce doctrine and, as core work product, are entitled to the highest of protections from discovery. AND NOW, this day of November, 2024, for the reasons set forth above, it is respectfully RECOMMENDED 1. Relator's Motion for Protective Order, or in the Alternative, Motion to Quash Subpoena Served on David Marks, Marks Balette Young & Moss, should be granted; and 2. A protective order should be issued relieving Mr. Marks, and any other person or entity to whom the Subpoena is directed, from the obligation to respond to the Subpoena. Honorable Thomas J. Ruder (Ret.) Special Master ORDER AND NOW, this day of , 2024. upon consideration of the Report and Recommendation of Special Master Honorablc Thomas J. Ructer (Ret.) dated November 13. 2024. and any objections thereto, the Report and Recommendation is APPROVED and ADOPTED, and the court enters the following Order: 1. Relator's Motion for Protective Order, or in the Alternative, Motion to Quash Subpoena Served on David Marks, Marks Balette Young & Moss, is GRANTED. 2. A Protective Order is hereby entered relieving the individuals and entities named in the Subpoena at issue of the obligation to respond to the Subpoena. Footnotes [1] Reference to Mr. Marks herein shall include reference to the Marks Law Firm, and any other individuals or entities from whom documents are sought by Kindred in the Subpoena. [2] Consistent with the practice of the parties, Defendants are collectively referred to herein as “Kindred.” [3] By Order dated June 1, 2021, the Honorable Karen S. Marston appointed the undersigned as a Special Master “to facilitate the resolution of discovery disputes.” (Doc. No. 119.) [4] Although the Special Master does not address herein every argument raised by the parties in their submissions, the Special Master has considered all such arguments in issuing this Report and Recommendation. [5] The parties agree that the main documents at issue herein, Relator's Affidavit and Relator's Deposition transcript, were not marked “confidential and for use in this case only” as required by the Young Protective Order. At Relator's Deposition in the Young Case, Relator's Affidavit was marked as Exhibit 5. At no time during the Young Case did Kindred designate the Relator's Affidavit as “confidential and for use in this case only” as required by the Young Protective Order. (Motion at 4 n.4.) Kindred did not designate Relator's Deposition and transcript, or exhibits marked thereat, as “confidential and for use in this case only” as required by the Young Protective Order. Id. at 4-5. When Relator's Deposition transcript and exhibits, including Relator's Affidavit, were marked as exhibits at the Young Arbitration Proceeding, Kindred knew the Young Arbitrator had denied its request that the Young Arbitration Proceedings be confidential and documents introduced at that proceeding would not be confidential. Id. at 5. [6] At the Hearing, Mr. Marks stated that staffing information contained in other paragraphs of the complaints in this matter were based upon Relator's personal knowledge. See also Relator's Post-Hearing Brief at 3-4 and 3 n.6 (Relator had independent and personal knowledge of the staffing and budgeting issues at the Kindred facilities). [7] Kindred asserts that the Shelton analysis is inapplicable to the instant matter noting that while some courts have applied Shelton, the Third Circuit Court of Appeals has not adopted that ruling. See Kindred's Post-Hearing Brief at 8 (citing Fleming Stell Co. v. Jacobs Eng'g Grp., Inc., 2017 WL 6539309, at *2 (W.D. Pa. Dec. 21, 2017) (“The Third Circuit has not adopted the ‘Shelton Rule.’ Some courts within the Circuit have adopted it. and some have not. The Court's research has shown that more courts choose not to adopt it.”)). Kindred further argues that the Shelton analysis, even if it were applicable to requests to depose opposing counsel, it is “less clear that it is applicable to non-deposition discovery on opposing counsel.” Id. But see Monster Energy Co. v. Vital Pharm., Inc., 2020 WL 2405295. at *8-9 (C.D. Cal. Mar. 10. 2020) (Shelton factors apply to document requests and other non-deposition forms of discovery.). The Special Master is applying the Shelton analysis in the context of Kindred's representation that it may seek to depose Mr. Marks. The Special Master finds that the Shelton analysis provides helpful guidance in considering this issue. [8] With respect to the fourth category of documents requested in the Subpoena, namely, Kindred Information “obtained or otherwise received prior to February 11, 2016 that you provided to any testifying or consulting expert you retained” in the instant litigation, Relator represents that Mr. Marks has “not provided any ‘Kindred Information’ obtained or otherwise received prior to February 11, 2016, to any testifying or consulting expert retained in this matter.” (Relator's Motion at 10 n.6.) Relator interprets Kindred's discovery request regarding experts as an attempt to circumvent the scope and deadline for expert discovery as set by the Court that should not be countenanced. Id. at 10. The Special Master will not address Relator's concerns regarding the scope and deadline for expert discovery set by the Court in this case, as this issue is not the subject of the Motion.