INSULET CORPORATION, Plaintiff, v. EOFLOW CO., LTD.; EOFLOW, INC.; NEPHRIA BIO, INC.; JESSE J. KIM (a/k/a JAE JIN KIM); LUIS J. MALAVE; STEVEN DIIANNI; and IAN G. WELSFORD, Defendants Civil Action No. 1:23-cv-11780-FDS-JDH United States District Court, D. Massachusetts Filed October 11, 2024 Hedges, Jessica D., United States Magistrate Judge ORDER ON PLAINTIFF'S MOTION TO COMPEL (NO. 598), DEFENDANTS’ MOTION TO COMPEL (NO. 587) AND PLAINTIFF'S MOTION FOR PROTECTIVE ORDER (NO. 595) *1 On October 10, 2024, Plaintiff Insulet Corporation (“Insulet”) and Defendants EOFlow Co., Ltd. and EOFlow, Inc. (collectively “EOFlow”) and Nephria Bio, Inc., Jesse J. Kim, Luis J. Malave, Steven DiIanni, and Ian Welsford (together with EOFlow, “Defendants”) appeared before this Court for a hearing on Insulet's motion to compel the production of certain Computer-Aided Design (“CAD”) files in the possession of EOFlow, see Docket No. 598; Defendants’ motion to compel and to permit further discovery into the work of Arthur Schick (“Mr. Schick”), a third-party consultant that Insulet hired in 2021, see Docket No. 587; and Insulet's motion for a protective order limiting the scope of a Rule 30(b)(6) deposition concerning Mr. Schick's work, see Docket No. 595. The timing of these discovery disputes warrants emphasizing. The parties filed these motions months after the close of fact discovery, which was on May 24, 2024, and mere weeks away from trial, which is scheduled to begin on November 4, 2024. Each party claims that further limited discovery is warranted due to recently discovered information revealing the existence of relevant documents that were not previously produced. After the close of fact discovery, the Court allowed additional limited discovery concerning certain CAD files in EOFlow's possession and the scope of Insulet's engagement of Mr. Schick. See Docket Nos. 427, 483 at 49:15-18, 589-2 at 20:23-21:15. At the parties’ September 27, 2024 Status Conference and in their Joint Status Report, see Docket No. 567, the parties raised additional discovery disputes related to the Court's orders on the CAD and Schick issues, requiring further intervention by this Court. The parties thereafter filed the instant motions. I. Applicable Law Pursuant to Federal Rule of Civil Procedure 26(b)(1), the “[p]arties may obtain discovery regarding any nonprivileged 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 parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1). “A party who has made a disclosure under Rule 26(a)—or who has responded to an interrogatory, request for production, or request for admission—must supplement or correct its disclosure or response [ ] in a timely manner ... or [ ] as ordered by the court.” Fed. R. Civ. P. 26(e)(1). The “[d]iscovery procedures set forth in the Federal Rules of Civil Procedure seek to further the interests of justice by minimizing surprise at trial and ensuring wide-ranging discovery of information.” See Doelger v. JPMorgan Chase Bank, N.A., No. CV 21-11042-AK, 2022 WL 22837136, at *2 (D. Mass. Oct. 20, 2022). However, discovery is not unrestricted. The court must limit discovery if it determines that “(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).” Fed. R. Civ. P. 26(b)(2)(C). “District courts exercise broad discretion to manage discovery matters and to tailor discovery narrowly.” HealthEdge Software, Inc., 2021 WL 1821358, at *2 (internal citations and quotations omitted). “The party resisting discovery bears the burden of showing some sufficient reason why discovery should not be allowed.” Id. (quotation omitted). *2 Having considered the parties’ briefing and arguments presented at the hearing, and mindful of the parties’ need for a prompt ruling given the looming trial date, I issued my rulings and reasons therefore from the bench. I provide a short summary of my conclusions, for the reasons I stated at the October 10, 2024 hearing, here. It is hereby ORDERED: II. Order on Insulet's Motion to Compel Production of Computer-Aided Design (CAD) Files (Docket Nos. 598, 663) Insulet's Motion to Compel is ALLOWED. EOFlow shall produce to Insulet the 7,609 files that hit on Insulet's search parameters, together with metadata pursuant to the parties’ ESI protocol, no later than midnight on October 17, 2024. EOFlow shall also produce to Insulet the metadata associated with the CAD file named “13800-Pod-Assembly” consistent with the parties’ previous agreement, as represented to the Court on September 20, 2024. EOFlow shall make this production no later than midnight on October 17, 2024. III. Order on Defendants’ Motion to Compel and to Permit Further Discovery into Insulet's ‘Reasonable Measures Review’ (Docket No. 587) Defendants’ Motion to Compel is ALLOWED in part and DENIED in part, as follows: 1. Insulet shall produce, no later than midnight on October 17, 2024, all documents and communications concerning Mr. Schick's engagement with Insulet pursuant to the Consulting Agreement (Docket No. 589-1), including: a. Emails concerning Mr. Schick's review of Insulet's trade secret protections and his advice on how those measures could be improved; b. Documents Insulet shared with Mr. Schick concerning Insulet's trade secret protections or what Insulet believed its trade secrets to be; c. Emails from the first month of Mr. Schick's engagement with Insulet, including emails between Insulet employees and Mr. Schick's personal and/or Insulet.com email addresses concerning Insulet's trade secret protections; and d. Mr. Schick's final or draft reports reflecting his recommendations and findings concerning Insulet's trade secret protections. 2. Insulet need not produce any invoices or bills related to Mr. Schick's work, any emails showing how the final version of the Trade Secret Summary came to be, or any notes from Mr. Schick's meetings with various Insulet employees. 3. Insulet shall produce, no later than midnight on October 17, 2024, unredacted versions of communications between Mr. Schick and Insulet employees other than Insulet's in-house counsel, Thomas Andersen (“Mr. Andersen”). Insulet need not produce privileged communications between Mr. Schick and Mr. Andersen. 4. Insulet shall produce, no later than midnight on October 17, 2024, the two emails discussed at the hearing for which Mr. Andersen is “one of many individuals on a ‘CC’ line.” Docket No. 588 at 21. To the extent Insulet believes these two emails contain privileged information, it may redact such information. 5. Insulet need not produce an unredacted version of the Trade Secret Summary. 6. Insulet shall produce, no later than midnight on October 17, 2024, a privilege log covering all documents or communications that it withholds or redacts on the basis of privilege. 7. Defendants’ request for an order allowing them to subpoena Mr. Schick for a deposition or the production of documents is DENIED. IV. Order on Insulet's Motion for Protective Order on Defendants’ 30(b)(6) Deposition (Docket No. 595) *3 Insulet's Motion for Protective Order is ALLOWED in part and DENIED in part, as follows: 1. Topic 1 shall be limited to testimony concerning the “origins and commencement” of Insulet's engagement of Mr. Schick and/or Alpha Sierra Global, LLC (“ASG”) in 2021, as set forth in the Consulting Agreement. 2. Topics 2 and 3 shall be limited to testimony related to the Consulting Agreement and the 2021 engagement. Any testimony concerning “invoices or bills related to the Consulting Agreement” shall be excluded. 3. Topic 5 shall be limited to testimony concerning “communications between Insulet and Mr. Schick and/or ASG” as it relates to the Insulet's engagement of Mr. Schick in 2021, as set forth in the Consulting Agreement. 4. Topic 7 shall be excluded. 5. Topic 8 shall be excluded. 6. Topic 10 shall be excluded. Insulet's requests to limit or exclude other topics contained in Defendants’ September 26, 2024, Rule 30(b)(6) Deposition Notice are hereby DENIED. I am not ordering Insulet's 30(b)(6) designee to testify about privileged communications with Insulet's in-house counsel. To the extent any testimony elicited seeks privileged information, Insulet may make appropriate privilege objections during the deposition. The parties shall cooperate in this regard. As agreed by the parties, the 30(b)(6) deposition shall take place by October 22, 2024. I encourage the parties to continue to work through these issues cooperatively wherever possible. To the extent that the parties reach a mutually agreeable compromise that deviates from these Orders, the parties are ordered to file a joint status report with the Court reflecting those agreements, to avoid any ambiguity or confusion on the eve of, or during, trial.[1] Footnotes [1] The parties are advised that under Federal Rule Civil Procedure 72(a) and Rule 2(b) of the Rules for United States Magistrate Judges in the United States District Court for the District of Massachusetts, any party seeking review by a district judge of these determination(s) and order(s) must serve and file any objections within fourteen (14) days of being served a copy of this Order, unless a different time is prescribed by the magistrate judge or the district judge.