Opinion
23-MC-206 (ALC) (BCM)
09-21-2023
OASIS MEDICAL, INC., Plaintiff, v. I-MED PHARMA USA INC., I-MED PHARMA INC., and ILAN HOFMANN, Defendants.
MEMORANDUM AND ORDER
BARBARA MOSES, UNITED STATES MAGISTRATE JUDGE
Now before the Court are a series of motions to quash and/or compel compliance with three subpoenas served on Wesley Domareki, the former president of Biocia, Inc. (Biocia), by the parties to Oasis Medical, Inc. v. I-Med Pharma USA Inc., I-Med Pharma Inc., and Ilan Hofmann, No. 21-CV-8879 (C.D. Cal.) (the California Action).
The first motion was filed on June 20, 2023, by Biocia, which was once but is no longer a defendant in the California Action. Biocia moved to quash, in part, a subpoena duces tecum (the Oasis Document Subpoena) (Dkt. 3-5) served on Domareki by plaintiff Oasis Medical, Inc. (Oasis) on June 7, 2023, as well as an earlier subpoena ad testificandum (the Oasis Deposition Subpoena) (Dkt. 12-7), served on Domareki by Oasis on September 2, 2022. (Dkt. 2.) The second motion was filed on June 28, 2023, when Oasis opposed Biocia's motion and filed a cross-motion to enforce both the Oasis Document Subpoena and the Oasis Deposition Subpoena. (Dkt. 15.) The third motion was filed on August 1, 2023 - after the first two were fully briefed - by the remaining defendants in the California Action, I-MED Pharma Inc. (I-MED Pharma), I-MED Pharma USA Inc. (I-MED USA), and Ilan Hofmann (together, the I-MED Defendants), who seek to enforce a competing subpoena ad testificandum (the I-MED Deposition Subpoena) (Dkt. 49-2), served on Domareki by the I-MED Defendants on June 8, 2023. (Dkt. 48.)
All three subpoenas nominally require Domareki to appear or produce documents in New York City, which is approximately 60 miles from his home in Port Murray, New Jersey. See Domareki Decl. (Dkt. 23) ¶ 28. Thus, although the documents may well be produced electronically - and the parties have already agreed that the deposition will be conducted via Zoom - the Southern District of New York is the appropriate venue for motions to quash, modify, or enforce those subpoenas. See Fed.R.Civ.P. 37(a)(2), 45(d)(2)(B)(i), 45(d)(3). The Court heard oral argument on all three motions on August 2, 2023, but withheld decision until the last motion was fully briefed and the parties had one more opportunity to resolve the dispute among themselves, see 8/2/23 Tr. (Dkt. 53) at 8:23-9:7, 76:22-23, 81:9-23, which they were unable to do.
For the reasons set forth below, Biocia's motion to quash and Oasis's cross-motion to compel compliance with the Oasis Document Subpoena and the Oasis Deposition Subpoena will be granted in part and denied in part, while the motion to compel compliance with the competing I-MED Deposition Subpoena will be denied.
I. BACKGROUND
A. The Parties
Biocia is a New Jersey corporation that develops and licenses eye care products, including eyedrops, for manufacture and distribution by others. See Oasis Med., Inc. v. Biocia, Inc., 2022 WL 2189616, at *1 (C.D. Cal. Jan. 10, 2022). Biocia was founded by Domareki and Hofmann, who - until the events described below - each owned 49.2% of the company through intermediary entities. Id.; see also Domareki Decl. ¶¶ 4-5. The remaining 1.6% was owned by Jack Miller, through another entity. Oasis Med., 2022 WL 2189616, at *1; Domareki Decl. ¶ 9. Domareki was the president of Biocia and managed its day-to-day affairs. Oasis Med., 2022 WL 2189616, at *4.
Biocia licensed its eyedrops to Oasis, a California corporation, for manufacture and sale in the United States pursuant to a Core Technology Agreement (CTA). Oasis Med., 2022 WL 2189616, at *2. Additionally, it licensed one of its eyedrop products to I-MED Pharma, a Canadian corporation, for manufacture and sale in Canada. Id. at *2-3. Hofmann was the founder, Chairman, and Chief Science Officer of I-MED Pharma. Id. at *1. Domareki had no interest in I-MED Pharma or its affiliate, I-MED USA.
B. The California Action
On November 10, 2021, Oasis filed the California Action against Biocia and the I-MED Defendants, together with a motion for a preliminary injunction against the I-MED Defendants. Oasis Med., 2022 WL 2189616, at *3. Oasis alleged, inter alia, that Biocia breached the CTA by permitting I-MED USA to sell - in the United States - a version of the eyedrop licensed to I-MED Pharma for Canadian sales only, and that the I- MED Defendants induced the breach and tortiously interfered with Oasis's contractual rights. Id. Although Biocia was named as a defendant in the California Action, its then-president, Domareki, submitted a declaration in support of Oasis's motion. Id. at *4; see also Kachner Decl. (Dkt. 12) ¶ 17 & Ex. 15.
On January 10, 2022, the California court entered a preliminary injunction against the I-MED Defendants, precluding them from selling any version of the challenged eyedrop in the U.S. Oasis Med., 2022 WL 2189616, at *12. On February 7, 2022, the parties to the California Action stipulated to a protective order, which remains in effect. D'Elia Decl. (Dkt. 3) ¶¶ 8-9 & Ex. C (Cal. Prot. Order). On February 15, 2022, Biocia voluntarily dismissed all of its claims against Oasis. Id. ¶¶ 6-7 & Ex. B. Thereafter, Oasis served Biocia with a non-party subpoena duces tecum, to which Biocia (under Domareki's leadership) responded in September 2022, producing more than 5,000 pages of documents. Id. ¶ 15.
Fact discovery is scheduled to close in the California Action on September 22, 2023. Ben-Meir Decl. (Dkt. 49) ¶ 25. Subject-matter jurisdiction in that action is based upon diversity of citizenship. See D'Elia Decl. Ex. A, ¶¶ 6-8.
C. The New Jersey Action, Mediation, and Settlement
Shortly after the California Action was filed, Domareki sued Hofmann and Miller (and the companies through which they owned their Biocia shares) in a New Jersey state court (the New Jersey Action), asserting claims for breach of fiduciary duty and shareholder oppression. Oasis Med., 2022 WL 2189616, at *4; see also D'Elia Decl. ¶ 10. Biocia was a nominal defendant (or "party in interest") in that action. See Kachner Decl. Ex. 3 (NJ Order), at ECF p. 1. On February 18, 2022, the New Jersey court issued an order finding that "Hofmann's interests conflict with those of Biocia," N.J. Order at ECF p. 8, and restraining Hofmann and his company from taking any action to remove Domareki as an officer or director of Biocia or having "any involvement" in Biocia's management or operations, including its defense of the California Action. See id. at ECF pp. 1-2.
In November 2022, the parties to the New Jersey Action entered into a mediation agreement, see D'Elia Decl. ¶¶ 12-13 & Ex. D (Med. Ag.); Dowd Decl. (Dkt. 22) ¶¶ 9-12 & Ex. A (Med. Ag.). The agreement provides, among other things:
The Mediation Agreement, as submitted to this Court, is neither dated nor signed. However, no party before this Court has disputed that it bound the participants in the mediation.
Nothing said or disclosed during mediation, nor any document produced in mediation which is not otherwise discoverable, shall be admissible as evidence or usable for impeachment or other purposes in any judicial or arbitration proceeding. The parties agree that all discussions concerning settlement remain confidential. No party or participant, including counsel who is involved in the mediation process, shall be permitted to . . . produce in any civil action, arbitration or other legal or administrative proceeding of any kind whatsoever, any notes or documents related to the mediation or to testify regarding any notes or documents or the Mediator's thoughts, or impressions.Med. Ag. ¶ 5. It goes on to state:
All offers, promises, conduct and statements, oral or written, made in the course of the mediation by any of the parties or their agents, experts and attorneys, and by the Mediator, are confidential and will not be disclosed to any court or third parties except persons associated with the parties to the mediation process, and persons
and entities to whom a party has a legal or contractual obligation to report, and are privileged and inadmissible for any purposes, including impeachment, under any applicable rule of evidence, statute or common law doctrine. However, evidence previously disclosed or known to a party shall not be rendered confidential, inadmissible or non-discoverable solely as a result of its use in the mediation.Id. ¶ 10.
Beginning on February 8, 2023, the parties to the New Jersey Action conducted a two-day mediation before a retired New Jersey judge, which continued thereafter "via email, telephone and Zoom for approximately three months." Dowd Decl. ¶ 14. On May 23, 2023, the parties (including Biocia) entered into a settlement agreement under which Domareki sold all of his Biocia shares to the Hofmann and Miller entities, and resigned his positions as a Biocia officer, director, and employee, thereby giving Hofmann control of the company. D'Elia Decl. ¶ 14; see also Dowd Decl. ¶ 15; Kachner Decl. ¶ 8 & Ex. 6 (Sett. Ag. (excerpts)). The complete Settlement Agreement has been produced in the California Action, and Hofmann was questioned about it at his deposition on June 27, 2023. See Kachner Decl. ¶ 8; 8/2/23 Tr. at 32:6-7 (Oasis counsel, confirming that "[w]e have now obtained the final settlement agreement").
Although Domareki no longer has any ownership interest in or employment relationship with Oasis, the Settlement Agreement imposes various cooperation requirements on him. As relevant here:
Domareki agrees to cooperate with Biocia's reasonable requests for information or assistance related to . . . Biocia's defense of, or other participation in, any administrative, judicial, or other proceeding arising from any charge, complaint, or other action that has been or may be filed relating to any dispute with Oasis Medical, Inc. regarding the scope of the [CTA] and any claim by Oasis Medical, Inc, that it is entitled to worldwide rights to the Biocia products governed by the [CTA].
Sett. Ag. ¶ 12. Conversely, absent a subpoena or other legal compulsion, Domareki is prohibited from communicating with any third party "concerning the operations of Biocia or the legal positions taken by Biocia," without Biocia's consent. Id. Domareki is also required to return all Biocia documents and records in his possession to Biocia. Id. ¶ 14. As of August 2, 2023, he was still in the process of doing so. See 8/2/23 Tr. at 13:9-11.
In the Settlement Agreement itself, Domareki makes various factual representations, including representations concerning his "intent, on behalf of Biocia," in entering into the CTA. Sett. Ag. ¶ 11.
D. The Subpoenas
On September 2, 2022, Oasis served a subpoena ad testificandum on Domareki, calling for him to appear for deposition on September 30, 2022, at the office of Oasis's counsel in New York City. Kachner Decl. ¶ 9 & Ex. 7. There were no objections to the subpoena at that time. Id. ¶ 24. However, in a series of emails among counsel for the parties and the witness, the deposition was postponed several times, initially to allow Biocia produce documents prior to the deposition, see Kachner Decl. Ex. 9, at ECF p. 6, and then because Domareki underwent heart surgery on October 10, 2022. Id. at ECF p. 3.
On February 3, 2023, Domareki signed another declaration, which he provided to Oasis for use in the California Action. Domareki Decl. ¶ 16; see also Kachner Decl. ¶ 18 & Ex. 16 (2/3/23 Domareki Decl.). In that declaration, Domareki set forth a detailed account of the events at issue in the California Action, and attached more than two dozen documents. Domareki Decl. ¶¶ 16-17; see also 2/3/23 Domareki Decl. ¶¶ 6-47. Domareki understood that he was providing that declaration "in lieu of a deposition." Domareki Decl. ¶ 18.
No further efforts were made to schedule Domareki for an oral deposition until a week after he relinquished his interests in Biocia. On May 30, 2023, Oasis notified the I-MED Defendants that it had set the Domareki deposition for June 22, 2023, by Zoom, but that, due to the witness's health, the initial session would be limited to three hours, with further sessions "as needed." Kachner Decl. Ex. 10, at ECF p. 15; see also Dowd Decl. ¶¶ 26-27.
On June 1, 2023, counsel for the I-MED Defendants stated that they too "would like some time to examine Mr. Domareki." Kachner Decl. Ex. 10, at ECF p. 14. During the ensuing negotiations, the parties agreed that Oasis would go first, see id. at ECF p. 13, but disagreed as to how to divide the available seven hours, see Fed.R.Civ.P. 30(d)(1), which Domareki's counsel refused to extend voluntarily due to his client's fragile health. On June 7, 2023, the I-MED Defendants suggested that each side be allowed three and a half hours. See Kachner Decl. Ex. 10, at ECF p. 9. On June 13, 2023, Oasis objected, arguing it needed more time in light of Domareki's recent sale of "his half of Biocia" to Hofmann, and proposed that it be allocated five hours, leaving defendants with two. Id. at ECF p. 8. Defendants retorted that since Domareki "has assisted Plaintiff throughout this litigation, including providing declarations and other help," defendants should have "at least as much time with him, if not more, than Plaintiff." Id. at ECF p. 7. Domareki's attorney suggested that Oasis get four hours with the witness and the I-MED Defendants get three, see Kachner Decl. Ex. 18, at ECF p. 5, but, according to Oasis, defendants rejected that proposal "and insisted on equal deposition time." Id.
Domareki has submitted a letter dated July 6, 2023, from his cardiologist, David James, M.D., stating that he suffers from heart failure and related conditions, which "greatly limit[] his physical capabilities and tolerance for stress." Domareki Decl. Ex. B. Dr. James recommended that Domareki be "exempted" from giving a deposition, Id., but Domareki states that he is "willing to do so remotely via Zoom provided that the duration is limited to two sessions of three and one-half hours, for a total of seven hours and I have an ability to stop the deposition if I become physically compromised or otherwise do not feel well enough to proceed." Domareki Decl. ¶ 26.
On June 7, 2023 - during these negotiations - Oasis served its subpoena duces tecum on Domareki, seeking 14 categories of documents. D'Elia Decl. ¶ 16 & Ex. E. The next day, the I-MED Defendants served their own subpoena ad testificandum on Domareki, commanding him to appear for deposition at 9:00 a.m. on September 22, 2023, at the office of Hofmann's counsel in New York City. See Ben-Meir Decl. ¶ 9; I-MED Dep. Subp. at ECF p. 2.
Later that month, on June 18, 2023, Oasis served a similar document subpoena on Biocia. Kachner Decl. ¶ 16 & Ex. 14. The Biocia subpoena - which is not presently before this Court -seeks 25 categories of documents, including the 14 categories sought from Domareki.
On June 16, 2023, Biocia (acting through new counsel, retained after the New Jersey Action was settled) sent a letter to Domareki's counsel, objecting to the production (by Domareki) of most of the documents sought in the Oasis Document Subpoena. Dowd Decl. ¶ 33 & Ex. J. Specifically, Biocia objected to the production of documents that were in Domareki's possession "only in his capacity as an officer or employee of Biocia," documents covered by the mediation privilege, the attorney-client privilege, or the attorney work product doctrine, and documents "containing I-Med's highly sensitive commercial information." Id. Ex. J, at 1. Later that day, Domareki's counsel sent an objection letter in similar terms to Oasis. Dowd Decl. Ex. K; Kachner Decl. Ex. 13. Domareki also objected to the I-MED Deposition Subpoena, noting that it "directly conflicts with what had been the previously scheduled deposition" by Oasis, and arguing that by failing to agree on a sensible allocation of time adding up to no more than seven hours, the I-MED Defendants failed to comply with their obligation under Fed.R.Civ.P. 45(a)(1) "to take reasonable steps to avoid imposing undue burden and expense" on the witness. Ben-Meir Decl. Ex. 3, at 1-2.
In a June 17, 2023, email to Domareki's counsel, Oasis made another offer:
In the interest of compromise, out of respect for Mr. Domareki's health, and to ensure the June 22 deposition remains on track, Oasis is willing to attempt to complete its deposition of Mr. Domareki in 3.5 hours[.] However, Oasis reserves its right to seek additional deposition time if it is unable to complete Mr. Domareki's deposition in 3.5 hours and/or if Mr. Domareki's or Biocia's later produced document require some additional time. Accordingly, on June 22 Oasis will plan to use three hours, and will reserve the balance of its time for a future session.
Ben-Meir Decl. Ex. 4, at ECF p. 2. According to the I-MED Defendants, they believed, upon receiving this email, that the dispute regarding "the length and allocation of time with respect to Mr. Domareki's depositions had been resolved." Id. ¶ 16.
They were mistaken. On June 19, 2023, Domareki's attorney advised that his client would not appear for deposition on June 22, 2023 - anywhere - until Oasis and the I-MED Defendants "reached an agreement on the allocation of time for your respective interrogations and we have resolved all issues with respect to the documents to be produced[.]" Kachner Decl. Ex. 18, at ECF pp. 3-4; Dowd Decl. Ex. O, at ECF p. 1.
This miscellaneous action followed.
II. THE PARTIES' POSITIONS
In its moving brief, Biocia argued that "every request in the [Oasis Document Subpoena], with the possible exceptions of requests 4, 5, and 14, should be quashed on grounds of privilege, confidentiality, proprietary interest, or some combination of the three." Biocia Mem. (Dkt. 4) at 6. According to Biocia, Requests 1-3, 6, and 7 seek documents protected by the mediation communication privilege (under both New Jersey and New York law), see Biocia Mem. at 7-10; Requests 8-10 ask Domareki to produce "highly confidential" information that Oasis's lawyers could only have learned about through their receipt of discovery categorized as "CONFIDENTIAL-ATTORNEYS EYES ONLY" pursuant to the California Protective Order and therefore were forbidden from "disclosing," which they improperly did by serving Requests 8-10, see id. at 11-12; and Requests 11-13 call for the production of confidential commercial information belonging to Biocia, which Domareki should no longer possess. see id. at 13. Biocia has no objection to Domareki responding to the remaining requests, "provided, however, that Domareki does not produce any documents which are covered by the attorney-client privilege or work product privilege." Id. at 14. As to the Oasis Deposition Subpoena, Biocia asks that it be quashed "to the extent" it seeks to compel Domareki to testify about "any of the topics outlined therein." Id. at 14-15.
Because Biocia does not ask the Court to block either the Oasis Document Subpoena or the Oasis Deposition Subpoena in its entirety, its motion is properly viewed, in substance, as a motion to modify the subpoenas pursuant to Rule 45(d)(3) and/or for a protective order pursuant to Rule 26(c)(1)(D). Nonetheless, in summarizing Biocia's position, I have preserved the language used in its motion papers.
Request 1 asks for "[a]ll documents and communications relating to arbitration or mediation, threatened or actual, between I-Med and Biocia." Request 2 seeks "[a]ll documents and communications filed with, submitted to, or otherwise given to an arbitrator or mediator in connection with any arbitration or mediation between I-Med and Biocia." Request 3 directs Domareki to product "[a]ll documents and communications relating to any settlement of any arbitration or mediation between I-Med and Biocia." Request 6 asks for "[a]ll documents and communications relating to any settlement of the Shareholder Litigation." Request 7 seeks "[a]ll documents and communications relating to anyone, including Ilan Hofmann or IMed, acquiring Biocia shares or an ownership interest in Biocia previously held by You."
Request 8 asks for "[a]ll documents and communications relating to Biocia's consideration of Ectoin or Ectoine." Request 9 seeks "[a]ll documents and communications relating to Bloomage Freda or Bitop as a potential supplier of Ectoin or Ectoine." Request 10 directs Domareki to produce "[a]ll documents and communications relating to Jubilant HollisterStier as a potential manufacturer or service provider related to any artificial tear or dry eye products." Notwithstanding Biocia's argument that the content of these requests improperly disclosed confidential information, in violation of the Protective Order, it submitted the entire Oasis Document Subpoena to this Court, unsealed, with its initial moving papers.
Request 11 seeks "[d]ocuments and communications shared with any third party relating to any analysis performed by Norton Rose Fulbright concerning the Core Technology License Agreement between Oasis and Biocia, including but not limited to documents and communications shared with I-Med." Request 12 asks for "[d]ocuments and communications relating to any analysis performed by Norton Rose Fulbright, referenced and described in emails between Wes Domareki, Daniel Hofmann, and Ilan Hofmann, produced in the litigation at BIOCIA-CA 003389." Request 13 directs Domareki to produce "[d]ocuments and communications relating to any analysis performed by Norton Rose Fulbright, referenced and described in emails between Wes Domareki, Daniel Hofmann, and Ilan Hofmann, produced in the litigation at BIOCIA-CA 002928 through BIOCA-CA 002931."
The Oasis Deposition Subpoena does not list any topics. In its reply brief, Biocia clarified that it sought to prevent Domareki from providing oral testimony concerning "any of the topics outlined in the motion to quash." Biocia Reply Mem. (Dkt. 28) at 1, 2.
In its reply brief, Biocia argues that to the extent the Oasis Document Subpoena seeks documents that are "not covered by some form of privilege," those documents are "more properly obtained from I-Med and/or Hofmann," since both Domareki and Biocia are non-parties to the California Action. Biocia Reply Mem. at 1-2, 6. It adds that Oasis has failed to establish its "need" for any of the information sought in the objected-to requests, Id. at 5-9, and denies that it bears any responsibility for the cancellation of Domareki's scheduled June 22 deposition, because he "cancelled it himself." Id. at 9.
Biocia filed many of its motion papers under seal (see Dkts. 11-12, 32, 43, 58), accompanied by sealing motions (see Dkts. 10, 31, 42, 57), and simultaneously filed redacted versions on the public docket. (See Dkts. 13-14, 33, 44, 59.) Because this Memorandum and Opinion discusses evidence currently under seal, it too will be filed under seal, in the first instance, until the sealing motions are resolved and the parties have an opportunity to propose any necessary redactions.
Finally, in a post-argument letter, Biocia withdrew "that part of its motion to quash that relates to Requests 8 - 10." Biocia Ltr. dated Aug. 4, 2023 (Dkt. 52), at 1.
Oasis argues that both of its subpoenas should be enforced in full, see Oasis Mem. (Dkt. 11) at 8-14, and that Biocia should reimburse Oasis for its deposition cancellation fees, because Domareki cancelled his June 22 deposition in response to Biocia's motion to quash. Id. at 15. Additionally, although Oasis remains willing to take Domareki's deposition by Zoom, split over two sessions, it contends that it is entitled to use the full seven hours contemplated by Rule 30(d)(1), leaving the I-MED Defendants no examination time. Oasis Reply Mem. (Dkt. 32) at 23. This is fair, according to Oasis, because Domareki now has a contractual obligation to "cooperate with Biocia (controlled and owned by Defendant Hofmann)," such that, as a practical matter, the I-MED Defendants do not require a deposition to obtain relevant information from him. Id. at 3; see also Oasis Opp. to I-MED Mtn. (Dkt. 58) at 2-3 (arguing that the Settlement Agreement "gives Hofmann (who owns and controls Biocia) the benefit of obligating Mr. Domareki to cooperate in the California [Action]"); 8/2/23 Tr. at 38:16-21 (Oasis counsel, arguing that, as a result of the Settlement Agreement, Domareki is "not even allowed to speak with us off the record," but is "obligated to cooperate with" Hofmann and Biocia).
In its final brief, submitted after the I-MED Defendants moved to compel compliance with their competing subpoena (and after this Court expressed disappointment that the parties "have not been able to work this out," 8/2/23 Tr. at 39:23-24, 47:17-19), Oasis pledges to conduct the deposition efficiently, and represents that it will "attempt to limit its questioning to 3.5 hours," but urges the Court not to limit it to those 3.5 hours, as "Oasis has a greater need [than the I-MED Defendants] for time with Mr. Domareki in his deposition." Oasis Opp. to I-MED Mtn. at 2, 4.
In a July 24, 2023, email to the I-MED Defendants' counsel, Oasis refused to be bound by the compromise it offered on June 17, 2023 (3.5 hours for each side), explaining that it made that agreement "under duress," in a last-ditch attempt to preserve its June 22 deposition date with Domareki, which ultimately proved unsuccessful. Ben-Meir Decl. Ex. 5, at ECF pp. 2-3. Thus, in Oasis's view, "[a]ny agreement by Oasis to forego any deposition time with Domareki was null and void when Domareki unilaterally cancelled his June 22, 2023 deposition and Biocia (owned and controlled by Hofmann) moved to quash that deposition." Id. at ECF p. 3.
The I-MED Defendants took no position during the initial round of motions, but joined the fray on July 26, 2023, claiming that they were not aware until July 21, 2023, when they received an unredacted copy of Oasis's reply brief, that Oasis sought a "7-hour deposition of Mr. Domareki," in violation of what they described as a "prior agreement" that they and Oasis would have "equal time" with the witness. I-MED Ltr. dated July 26, 2023 (Dkt. 41), at 1. In their formal brief in support of their own motion to compel, filed on August 1, 2023, the I-MED Defendants state that Oasis "renounce[d]" the equal-time agreement, leaving them no choice but to ask the Court to enforce the I-MED Deposition Subpoena in full, including "up to seven (7) hours of testimony." I-MED Mem. (Dkt. 50) at 1-2, 5-7. In support of their motion, the I-MED Defendants argue that they have "no other means of securing Mr. Domareki's testimony," because Domareki does not "read" the cooperation clause in the Settlement Agreement as requiring him to cooperate with the I-MED Defendants regarding the California Action. Id. at 8. They further argue that Domareki's "generalized health complaints" fail to demonstrate that sitting for two depositions will be an "undue burden." I-MED Mem. at 9-12.
At oral argument, the I-MED Defendants explained that the cooperation clause runs only to Biocia, which is no longer a party in the California Acton, and thus that they have "no access to [Domareki] at all" except on the record, at his deposition. 8/2/23 Tr. at 46:2-3. Oasis, on the other hand, "has had many communications with him," as a result of which he signed two declarations for Oasis's benefit. Id. at 48:10-17. Similarly, Domareki's counsel took the position at oral argument that "sitting down and discussing possible deposition testimony is not within the ambit of [the] cooperation agreement in any way," Id. at 51:23-25, and represented that his client "has not and will not provide any pre-deposition insight or sit for a prep session or the like with anybody[.]" Id. at 53:10-16.
Although Domareki did not file any motion of his own, he submitted a letter-brief and supporting declarations in opposition to Oasis's motion to compel, arguing that the Oasis Document Subpoena would impose an "undue burden" on him because it seeks documents that in reality belong to Biocia (and therefore should be sought from it, not from him), see Domareki Mem. (Dkt. 24) at 4-6; because it seeks documents that are subject to Biocia's attorney-client privilege, which he is no longer in a position to assert, see id. at 6; and because he is in poor health. Id. at 7-8. Domareki adds that Oasis is not entitled to material protected by the New Jersey mediation privilege, Id. at 9, and that the subpoena is overbroad insofar as it seek "all documents and communications relating to" the New Jersey Action. Id. at 10. If he is required to respond to that subpoena, he says, he should be compensated by Oasis for his expenses incurred in searching for and producing documents. Id. at 10-11.
As to the Oasis Deposition Subpoena, Domareki takes essentially the same position that he took in the parties' pre-motion negotiations: that he is willing to sit for a single deposition, via Zoom, so long as it is limited to seven hours, spread over two days, with breaks as necessary, but that because of his precarious health he should not be required to provide more than seven hours of testimony in toto. Domareki Mem. at 7-9; see also Domareki Opp. Mem. (Dkt. 55) at 3 (same).
III. ANALYSIS
A. Standards and Standing
As relevant here, Rule 45(d)(3)(A) requires the court, "[o]n timely motion," to quash or modify a subpoena that "requires disclosure of privileged or other protected matter, if no exception or waiver applies," or "subjects a person to undue burden." Fed.R.Civ.P. 45(d)(3)(A) (iii)-(iv). Rule 45(d)(3)(B) permits a court, "on motion," to quash or modify the subpoena if it requires "disclosing a trade secret or other confidential research, development, or commercial information." Fed.R.Civ.P. 45(d)(3)(B)(i). Motions to quash are "entrusted to the sound discretion of the district court." In re Fitch Inc., 330 F.3d 104, 108 (2d Cir. 2003). "The movant bears the burden of persuasion on a motion to quash." Universitas Educ., LLC v. Nova Grp., Inc., 2013 WL 57892, at *2 (S.D.N.Y. Jan. 4, 2013); accord Securitas Elec. Sec., Inc. v. DeBon, 2021 WL 639071, at *3 (S.D.N.Y. Feb. 18, 2021); John Wiley & Sons, Inc. v. Doe Nos. 1-30, 284 F.R.D. 185, 189 (S.D.N.Y. 2012).
Here, only Biocia has made a motion to quash. The recipient of the subpoenas, Domareki, has not. "As a general matter, only recipients of a subpoena have standing to seek a protective order quashing or modifying the subpoena." City of Almaty, Kazakhstan v. Ablyazov, 2020 WL 1130670, at *1 (S.D.N.Y. Mar. 9, 2020). In particular, only recipients have standing to challenge subpoenas on grounds of relevance or undue burden. See Silverstone Holding Grp., LLC v. Zhongtie Dacheng (Zhuhai) Inv. Mgmt. Co., 2023 WL 163256, at *2 (S.D.N.Y. Jan. 12, 2023) ("Because Silverstone is not the recipient of the subpoena, it does not have standing to challenge the subpoena on the independent grounds of undue burden or relevance."); Universitas Educ., 2013 WL 57892, at *5 (a non-recipient "lacks standing to challenge subpoenas issued to non-parties on the grounds of relevancy or undue burden").
However, "a non-party individual or entity has standing to quash a subpoena if the individual or entity 'is seeking to protect a personal privilege or right.'" Silverstone Holding Grp., 2023 WL 163256, at *1 (quoting Nova Prods., Inc. v. Kisma Video, Inc., 220 F.R.D. 238, 241 (S.D.N.Y. 2004)). Thus, Biocia has standing to challenge both the Oasis Document Subpoena and the Oasis Deposition Subpoena in order to protect its own privileges, and to safeguard any confidential or propriety business information, but lacks standing to do so "on the grounds of relevancy or undue burden," Universitas Educ., 2013 WL 57892, at *5, except "for purposes of balancing the relevance of the information sought against the litigant's protected interest." Silverstone Holding Grp., 2023 WL 163256, at *2.
Although Domareki did not make a motion to quash (or for a protective order), he did serve objections to two of the three subpoenas now at issue - the Oasis Document Subpoena and the I-MED Deposition Subpoena - in accordance with Rule 45(d)(2)(B). Oasis and the I-MED Defendants then responded with motions to compel compliance with their respective subpoenas, made pursuant to Rule 45(d)(2)(B)(i). Where such a motion is made, "[t]he party issuing the subpoena must demonstrate that the information sought is relevant and material to the allegations and claims at issue in the proceedings." Cuomo v. New York State Assembly Judiciary Comm., 2023 WL 4714097, at *5 (E.D.N.Y. July 21, 2023) (quoting Gov't Emps. Ins. v. Dinesh Verma Med., P.C., 2023 WL 2771638, at *1 (E.D.N.Y. Apr. 3, 2023)). Relevance is assessed under the familiar standard set forth in Rule 26(b)(1). Id.; see also In re Refco Sec. Litig., 759 F.Supp.2d 342, 345 (S.D.N.Y. 2011) ("Subpoenas issued under Rule 45 are subject to the relevance requirement of Rule 26(b)(1)"). Where the subpoena calls for the production of documents, the court must also protect a non-party subpoena recipient "from significant expense resulting from compliance." Fed.R.Civ.P. 45(d)(2)(B)(ii).
B. The Oasis Document Subpoena
Both Domareki and Biocia argue that the documents Oasis seeks from Domareki should be obtained from someone else. See Domareki Mem. at 6 (the Oasis Document Subpoena is unduly burdensome because the documents sought "are Biocia corporate documents and in Mr. Domareki's temporary possession only"); Biocia Reply Mem. at 6 (since both Domareki and Biocia are non-parties to the California Action, the documents are "more properly obtained from I-Med and/or Hofmann"). However, Rule 45 (like Rule 34) reaches otherwise-discoverable documents in the recipient's "possession, custody, or control," Fed.R.Civ.P. 45(a)(1)(A)(iii), regardless of who or what has legal title or equitable claims to those documents. See 8B Wright & Miller, Fed. Prac. & Proc. § 2210 (3d ed.) ("A party may be required to produce documents and things that it possesses even though they belong to a third person who is not a party to the action."); United States v. Nat'l Broad. Co., 65 F.R.D. 415, 420 (C.D. Cal. 1974) ("a subpoena may be issued directing a person to produce documents or objects which are within his possession, but which belong to another person"). Thus, while some (perhaps most) of the responsive documents remaining in Domareki's physical custody may be characterized as Biocia's property, that does not shield them from production by Domareki in response to the Oasis Document Subpoena.
Domareki is correct that since he is no longer a Biocia officer, director, or employee, he should not be "forced to make determinations of which Biocia documents or communications are covered by Biocia's attorney client or work product privileges." Domareki Mem. at 6 (emphasis added). The Court is confident, however, that Biocia, now under Hofmann's control, is equally unenthusiastic about the prospect of Domareki making privilege decisions on its behalf, and will be more than willing to undertake that task itself - as it must do, in any event, in response to the separate document subpoena that Oasis served upon it on June 18, 2023. Kachner Decl. Ex. 14.
In any event, some of the documents sought by Oasis and in contention here (such as Domareki's personal documents concerning the mediation and settlement of the New Jersey Action) are clearly not the property of Biocia. Other responsive documents (for example, emails in furtherance of Biocia's business that Domareki sent or received using one of his personal email addresses, see Oasis Mem. at 10) may never have been in Biocia's physical (or electronic) possession, such that they can only be obtained from Domareki. See 8/2/23 Tr. at 15:3-4 (Biocia counsel, agreeing that, "[o]bviously, we don't have control over Mr. Domareki's personal email address"). I therefore reject the suggestion that the Oasis Document Subpoena should be quashed in its entirety, and turn to Oasis's more specific objections to certain categories of documents.
1. Mediation Privilege
Oasis is understandably interested in the arrangements made by Domareki to settle the New Jersey Action. Because that settlement included a share buyout, its terms are potentially relevant to Biocia's valuation - and hence to damages in the California Action - as well as to Domareki's credibility, particularly if his deposition testimony is at variance with his prior sworn statements. The Court therefore accepts that the documents responsive to Requests 1, 2, 3, 6, and 7 meet the threshold test for relevance. However, Oasis does not need a subpoena to review the public file in the New Jersey Action (and has agreed that Domareki need not produce publicly available court filings, see 8/2/23 Tr. at 25:24-25), nor to obtain the Settlement Agreement, which has already been produced. Id. at 32:6-7.
The parties disagree as to whether Oasis can obtain, via subpoena, confidential communications exchanged by and among the parties to the New Jersey Action (and the mediator) during the process of negotiating the Settlement Agreement. Requests 1, 2, 3, 6, and 7, by their terms, would require the production of such documents, including, for example, mediation position papers, letters of intent, memoranda of understanding, redlined settlement drafts, and related notes and emails. Biocia and Domareki argue that these materials are protected by the Mediation Agreement and are privileged under the laws of New Jersey and/or New York. See Biocia Mem. at 8-9; Biocia Reply Mem. at 8; Domareki Mem. at 9. Oasis responds - correctly - that there is no mediation privilege under New York law, and takes issue with Biocia's reliance on In re Teligent. Oasis Mem. at 13. However, Oasis does not discuss New Jersey law, and none of the parties engages in any choice of law analysis.
Regarding New Jersey law, both Biocia and Domareki rely on the New Jersey Uniform Mediation Act (NJMA), N.J.S.A. § 2A:23C-1 et seq., which creates a privilege protecting "mediation communications" from discovery. Id. § 2A:23C-4. Regarding New York law, Biocia relies on In re Teligent, Inc., 640 F.3d 53, 58 (2d Cir. 2011), which held that since "[c]onfidentiality is an important feature of the mediation and other alternative dispute resolution processes," a party seeking disclosure of "confidential mediation communications must demonstrate (1) a special need for the confidential material, (2) resulting unfairness from a lack of discovery, and (3) that the need for the evidence outweighs the interest in maintaining confidentiality." Id. However, Teligent was a federal question case arising from a bankruptcy proceeding. There is no indication, anywhere in the opinion, that its analysis owes anything to the privilege law of New York, which has not adopted the Uniform Mediation Act. New York has not enacted a general mediation privilege. See Gen. Elec. Co. v. APR Energy plc, 2020 WL 2061423, at *8 (S.D.N.Y. Apr. 29, 2020) (overruling defendant's objections to document requests seeking mediation-related documents because "New York has not adopted the Uniform Mediation Act, and no mediation privilege exists under New York law") (citing Hauzinger v. Hauzinger, 43 A.D.3d 1289, 1290, 842 N.Y.S.2d 646, 647 (4th Dep't 2007)).
In Teligent, the underlying mediation was conducted pursuant to a court order providing for confidentiality of the mediation process. 640 F.3d. at 56-57. According to Oasis, the "heightened standard" set forth in that case does not apply to private mediations. Oasis Mem. at 13. Oasis relies on Rocky Aspen Mgmt. 204 LLC v. Hanford Holdings LLC, 394 F.Supp.3d 461 (S.D.N.Y. 2019), in which the court agreed that the ordinary "good cause" standard of Fed.R.Civ.P. 26(c) (which requires the party resisting discovery to show "good cause" for an order protecting it from producing relevant documents) "is the proper test to govern discovery disputes involving the disclosure of settlement discussions and settlement agreements where there was no promise of confidentiality by a court." Id. at 464-65. But there is no consensus on this point within our Circuit. See, e.g., Accent Delight Int'l Ltd. v. Sotheby's, 505 F.Supp.3d 281, 288 (S.D.N.Y. 2020) ("whether Teligent itself compels the conclusion or not, the Court concludes that its heightened standard should and does apply to private mediations in which there was an explicit promise of confidentiality"). Like Teligent itself, neither Rocky Aspen nor Accent Delight appears to rely in any way on New York law.
Oasis is correct that the Mediation Agreement, standing alone, is not grounds for withholding otherwise discoverable documents. Just as the parties to a settlement agreement cannot render it undiscoverable by inserting a confidentiality clause, see Morgan Art Found. Ltd. v. McKenzie, 2020 WL 3578251, at *5 (S.D.N.Y. July 1, 2020) (collecting cases), neither can the parties to a mediation create their own privilege - enforceable against third parties - by contract alone. However, many of the documents sought in Requests 1, 2, 3, 6 and 7 are privileged under New Jersey law, and may therefore be withheld.
Where, as here, subject matter jurisdiction is premised on diversity, a federal district "applies the choice-of-law rules of the forum state." Kinsey v. New York Times Co., 991 F.3d 171, 176 (2d Cir. 2021) (quoting Md. Cas. Co. v. Cont'l Cas. Co., 332 F.3d 145, 151 (2d Cir. 2003)); see also Fed.R.Evid. 501 ("[I]in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.").
The New York choice-of-law rules give "controlling effect to the law of the jurisdiction which, because of its relationship or contact with the occurrence or the parties, has the greatest concern with the specific issue raised in the litigation." Tartaglia v. Paul Revere Life Ins. Co., 948 F.Supp. 325, 326 (S.D.N.Y. 1996); see also Philips Credit Corp. v. Regent Health Group, Inc., 953 F.Supp. 482, 501 (S.D.N.Y. 1997) (New York's choice-of-law rules "require application of the law of the state having the most significant contacts with the matter in dispute") (internal citations omitted). "This approach - sometimes referred to as the 'center of gravity' or 'grouping of contacts' approach - follows the Restatement (Second) Conflict of Laws, which makes clear that the law of the state with the 'most significant relationship with the communication[s]' at issue should apply to questions of privilege." Conti v. Doe, 2019 WL 5198882, at *2 (S.D.N.Y. Oct. 1, 2019) (quoting Restatement (Second) Conflict of Law § 139 (1971)).
"In cases requiring a choice of privilege law, the interest analysis usually has led New York courts to apply the law of the jurisdiction in which the assertedly privileged communications were made, which in most of the cases was also the jurisdiction in which the party that made the communications resided." Lego v. Stratos Lightwave, Inc., 224 F.R.D. 576, 579 (S.D.N.Y. 2004) (applying Illinois accountant's privilege to motion to enforce subpoena against non-party Ernst & Young, because "[a]ll or substantially all of E & Y's audit work" was performed in Illinois, where Stratos was headquartered). As the Lego court explained, "the parties who made the communications expected that those communications would remain confidential under the law of that jurisdiction, and the state has an interest in furthering the policies behind the privilege at issue." Id.; see also Bild v. Konig, 2012 WL 13109963, at *1 (E.D.N.Y. Jan. 20, 2012) (applying Florida's accountant-client privilege because "New York courts typically apply the law of the jurisdiction in which the assertedly privileged communications were made when deciding privilege questions"); Satcom Int'l Grp., P.L.C. v. Orbcomm Int'l Partners, L.P., 1999 WL 76847, at *1 (S.D.N.Y. Feb. 16, 1999) (applying Virginia privilege law to question whether communications between a Virginia corporation and its general counsel were privileged); Tartaglia, 948 F.Supp. at 326-27 (applying New York privilege law where plaintiff physician sought to subpoena records from a non-party hospital, because "[t]he hospital is a New York corporation and, during the relevant time period, Dr. Tartaglia practiced in New York. In addition, all of the records were created and maintained in New York, with the expectation that they would remain confidential in accordance with New York law").
Here, the state with the "most significant relationship with the communications at issue," Conti, 2019 WL 5198882, at *2, is New Jersey. That is where the New Jersey Action was litigated; where the mediation took place (before a retired New Jersey judge); and where the parties asserting the mediation privilege reside (in the case of Domareki) or are incorporated (in the case of Biocia).
I note as well that four of the five signature lines on the Mediation Agreement identified New Jersey attorneys. The fifth signature line identified Oasis's attorney, Mark Kachner, who practices in California. See Med. Ag. at 5.
Recognizing that "[t]he success of mediation as a means of encouraging parties to compromise and settle their disputes depends on confidentiality," Willingboro Mall, Ltd. v. 240/242 Franklin Ave., L.L.C., 215 N.J. 242, 253, 71 A.3d 888, 895 (2013), New Jersey has enacted broad protections for mediation-related documents and communications. The NJMA applies to both court-ordered and voluntary mediations, so long as "the mediation parties and the mediator agree to mediate in a record that demonstrates an expectation that mediation communications will be privileged against disclosure." N.J. Stat. Ann. § 2A:23C-3(a)(2). The Mediation Agreement more than adequately "demonstrates an expectation that mediation communications will be privileged against disclosure." Thus, the NJMA applies. It provides, in relevant part:
a. [A] mediation communication is privileged as provided in subsection b. of this section and shall not be subject to discovery or admissible in evidence in a proceeding unless waived or precluded[.]
b. In a proceeding, the following privileges shall apply:
(1) a mediation party may refuse to disclose, and may prevent any other person from disclosing, a mediation communication.
* * *
c. Evidence or information that is otherwise admissible or subject to discovery shall not become inadmissible or protected from discovery solely by reason of its disclosure or use in a mediation.N.J. Stat. Ann. § 2A:23C-4.
A "mediation communication" is "a statement, whether verbal or nonverbal or in a record, that occurs during a mediation or is made for purposes of considering, conducting, participating in, initiating, continuing, or reconvening a mediation or retaining a mediator." N.J. Stat. Ann. § 2A:23C-2. Thus, for example, where the parties to a written settlement agreement reached through mediation disagree as to the agreement's material terms, the NJMA bars either side from obtaining (through discovery) or presenting (to the court) testimony concerning what the parties "agreed during the mediation." Straus Assocs. II v. Berman, 2017 WL 4781699, at *2-4 (N.J.Super.Ct.App.Div. Oct. 24, 2017); see also Marina Del Rey Assocs., LLC v. Cmty. Realty Mgmt., Inc., 2016 WL 4197303, at *4 (N.J.Super.Ct.App.Div. Aug. 10, 2016) (NJMA barred plaintiff from calling mediator to testify about stipulation allegedly entered into during mediation).
As the NJMA makes explicit, the mediation privilege does not protect otherwise discoverable information "solely by reason of its disclosure or use in a mediation." N.J. Stat. Ann. § 2A:23C-4(c). Thus, pre-mediation events and documents do not become privileged simply because they are disclosed or discussed during the mediation.
The NJMA does not require that the person asserting the mediation privilege show "good cause" or identify a specific injury that would result from the disclosure. It is enough that the communications or documents at issue are covered by the statute, and that the privilege has not been "expressly waived by all parties to the mediation." N.J.S.A. § 2A:23C-5(a). Oasis does not contend that any such waiver has occurred. Nor does it contend that any of the narrow statutory exceptions set forth in N.J. Stat. Ann. § 2A:23C-6 applies in this case. Consequently, both Domareki and Biocia are entitled (and, in the absence of unanimous waiver, required) to assert the mediation privilege in response to the Oasis Document Subpoena, and need not produce communications made or documents prepared for the purpose of the mediation. Similarly, Domareki is entitled (and, in the absence of a unanimous waiver, required) to invoke the mediation privilege during deposition.
2. Confidential Commercial Information
Requests 11-13 call for the production of documents concerning an "analysis performed by Norton Rose Fulbright concerning the Core Technology License Agreement between Oasis and Biocia," references to which apparently appear in various emails, previously produced in discovery, among Domareki, Hofmann, and his son Daniel Hofmann. Norton Rose Fulbright (NRF) represents the I-MED Defendants in the California Action (and before this Court). Biocia does not contend that the NRF analysis is protected by the attorney-client privilege, the work product doctrine, or the common interest privilege. Rather, it argues that the documents sought in Requests 11-13 are contain "'proprietary information,' which is not publicly available, in which Biocia possesses a 'privacy interest in maintaining . . . confidentiality' that 'is particularly heightened . . . where the information is sought by a competitor.'" Biocia Mem. at 13 (quoting Solow v. Conseco, Inc., 2008 WL 190340, at *4 (S.D.N.Y. Jan. 18, 2008)).
In Solow, the court weighed "the relevance or probative value of the documents being sought against the privacy interests Macklowe has asserted," Id., but only after satisfying itself that the information sought about non-party Macklowe (a direct competitor of Solow regarding a specific real estate opportunity) was in fact "highly sensitive." 2008 WL 190340, at *4. But Biocia, which bears the burden of persuasion on its motion to quash, provides no information at all concerning the NRF analysis - not even its subject matter - and thus furnishes the Court with no tools to evaluate either the relevance of the documents sought to the California Action or the strength of Biocia's asserted privacy interest. I note as well that the I-MED Defendants, who would presumably have an equally strong interest in protecting the NRF analysis from discovery if its disclosure were likely to cause competitive harm, have made no effort to do so. I therefore conclude that the existing safeguards in the California Action, including a protective order that permits Biocia to designate documents "CONFIDENTIAL-ATTORNEYS EYES ONLY," see Cal. Prot. Order §§ 2.4, 5.2(a), 7.2, are sufficient to protect Biocia from competitive harm from the disclosure of the NRF analysis in response to the Oasis Document Subpoena.
C. The Competing Deposition Subpoenas
"Unless otherwise stipulated or ordered by the court, a deposition is limited to one day of 7 hours." Fed.R.Civ.P. 30(d)(1). "A party seeking a court order to extend the time for examination or otherwise alter the limitations is expected to show good cause to justify such an order." Robinson v. De Niro, 2022 WL 274677, at *2 (S.D.N.Y. Jan. 26, 2022) (quoting 7 James Wm. Moore, et al., Moore's Federal Practice, § 30.45 (3d. ed. 2006)). The need for more than one party to examine the witness may "warrant additional time," depending on "the circumstances of the case." Pierre v. City of New York, 2022 WL 2384150, at *1 (S.D.N.Y. July 1, 2022) (internal quotation marks and citations omitted). That common scenario does not, however, warrant the service of multiple deposition subpoenas (even if they all "otherwise comply with the Federal Rules," I-MED Mem. at 1), nor require the witness to sit for multiple depositions, each "including up to seven (7) hours of testimony." Id. at 2. To the extent the I-MED Defendants believed they could evade Rule 30(d)(1) altogether, and require Domareki to sit for a second deposition by the stratagem of serving him with a second subpoena (rather than moving for an enlargement or allocation of time under Rule 30(d)(1) and/or 26(b)(2)(A)), they are mistaken. Their motion to enforce that second subpoena will therefore be denied.
See, e.g., Hunt Constr. Grp., Inc. v. Cobb Mech. Contractors, Inc., 2018 WL 6834511, at *1-2 (W.D. Tex. Dec. 21, 2018) (relying on Rule 26(b)(2)(A) as well as Rule 30(d)(1) to allocate deposition time among multiple parties).
Notwithstanding the I-MED Defendants' procedural error, the Court proceeds to the allocation issue, which was also raised (albeit late in the briefing cycle) by Oasis's Rule 45(d)(2)(B)(i) motion. Domareki is unquestionably a significant witness in the California Action. Moreover, the importance of his deposition testimony is magnified by his likely unavailability at trial (since he resides beyond subpoena range, see Fed.R.Civ.P. 45(c)(1)) and by the fact that, after initially supporting Oasis's claims against the I-MED Defendants and executing two declarations for its benefit, Domareki sold his Biocia stake to Hofmann, in the process giving up the ability to cooperate informally with Oasis and making various factual representations that presumably benefit Biocia and/or the I-MED Defendants. Sett. Ag. ¶¶ 1-2, 11-12. Under the circumstances, if Domareki were in good health, and if either Oasis or the I-MED Defendants had made an enlargement motion pursuant to Rule 30(d)(1), some additional examination time may well have been granted.
After it filed the California Action, Oasis instituted an arbitration against Biocia concerning another contract dispute. See 8/2/23 Tr. at 19:13-20:9. Some of the factual representations made by Domareki in the Settlement Agreement appear designed to assist Biocia in the arbitration.
But no party has moved this Court to extend the deposition, and Domareki is not in good health. He underwent heart surgery last October, see Kachner Decl. Ex. 8, at ECF p. 3, and has provided a letter from his cardiologist supporting his claim that he presently suffers from "several severe medical conditions," including heart failure, a "left ventricular thrombus, which poses an ongoing risk of serious cardiovascular events," renal disease, and a history of bone marrow transplantation. Domareki Decl. Ex. B. These conditions "greatly limit[] his physical capabilities and tolerance for stress." Id. His physician therefore recommends that he be "exempted from giving a deposition," to guard against the potentially "life-threatening deterioration" that he could experience "in response to the stress and exertion such an activity would demand." Id.
The I-MED Defendants argue that Domareki's health concerns are too "generalized" to "establish any undue burden, as is required to quash a deposition subpoena." I-MED Mem. at 9. The cases they cite, however, discuss the quantum of medical evidence required to "prohibit a deposition entirely." E.g., Pearson v. Univ. of Chicago, 2021 WL 194725, at *8 (D. Conn. Jan. 20, 2021). Domareki has not moved to quash either of the deposition subpoenas served upon him. He asks only that his deposition not be extended beyond the standard seven hours, and that those hours be spread over two days, with breaks as needed. The evidence he has supplied is adequate to support those modest limitations. See Michelo v. Nat'l Collegiate Student Loan Tr. 2007-2, 2020 WL 4041058, at *3-4 (S.D.N.Y. July 17, 2020) (refusing to quash deposition subpoena based on "a conclusory two-sentence note, scrawled on a prescription pad more than a year and a half ago, stating vaguely that the Employee should avoid 'duress' or 'significant stress,'" but directing that the deposition proceed remotely, be limited to four hours, and include "breaks as needed"), objections overruled, 2021 WL 568124 (S.D.N.Y. Feb. 16, 2021); Pearson, 2021 WL 194725, at *8-9 (refusing to quash deposition subpoena based on witness's lay assessment of his health, but limiting examination to no more than 3.5 hours per day).
The only remaining question is how to divide the seven hours. Both sides begin with some advantages: Oasis worked cooperatively with the witness throughout 2022, and has already secured favorable written testimony, which Domareki will presumably confirm at deposition, while one of the I-MED Defendants, Hofmann, has known and worked with Domareki for decades, and now controls Biocia, which is contractually entitled to the return of all of Domareki's "Biocia documents and records" and to at least some degree of "cooperation." Sett. Ag. ¶¶ 12, 14. Both sides also face some challenges: Oasis is no longer able to communicate informally with Domareki, and fears that he has effectively been paid to change sides in the California Action, while the I-MED Defendants assert (and Domareki confirms) that notwithstanding his cooperation obligation, they have no "access" to him, outside of a formal deposition, because that obligation, which runs to Biocia, does not extend to providing information to the I-MED Defendants for use in the California Action. 8/2/23 Tr. at 46:2-3, 51:23-52:2, 53:10-16, 71:13-17.
The Federal Rules "give district courts broad discretion to manage the manner in which discovery proceeds," In re Subpoena Issued to Dennis Friedman, 350 F.3d 65, 69 (2d Cir. 2003), including the manner in which examination time is allocated among competing parties at a timelimited deposition. See, e.g., Pierre, 2022 WL 2384150, at *3 (extending length of deposition and allocating remaining time). In this case, having carefully considered all of the parties' submissions, I see no reason to depart from the "equal time" arrangement that the I-MED Defendants repeatedly proposed and that Oasis agreed to - albeit briefly - on June 17, 2023. See Ben-Meir Decl. ¶ 15.
D. Costs
The Court declines to assess or reallocate the costs associated with the challenged subpoenas, or with the parties' dueling motions. While complying with the Oasis Document Subpoena will undoubtedly impose some degree of burden on Domareki, he has failed to demonstrate that the burden (including searching "four separate email addresses," see Domareki Mem. at 11) will be "undue," particularly given that, in his capacity as president of Biocia, he voluntarily took an active role in the California Action even after Biocia itself was dismissed as a party. As a practical matter, moreover, Biocia will undoubtedly shoulder the burden of reviewing any Biocia documents that are still in his physical (or electronic) possession for Biocia's privileges.
Nor is Oasis entitled to recoup its deposition cancellation fees from Biocia. The record does not support its claim that it was "Biocia's wrongful interference" that caused Domareki's counsel to cancel his planned June 22, 2023 deposition on two days' notice. Oasis Mem. at 8. Rather, the record suggests that the last straw was the inability of Oasis and the I-MED Defendants to assure Domareki that he would not have to testify for more than seven hours. Both sides bear some responsibility for that failure.
IV. CONCLUSION
Biocia's motion to quash the Oasis Document Subpoena and the Oasis Deposition Subpoena (Dkt. 2), and Oasis's motion to enforce those subpoenas (Dkt. 15) are GRANTED IN PART AND DENIED IN PART. The I-MED Defendants' motion to enforce the I-MED Deposition Subpoena (Dkt. 48) is DENIED. Domareki shall promptly produce all documents within his possession, custody, and control that are responsive to the Oasis Document Subpoena, except for documents protected by the attorney client privilege, the work product doctrine, or the New Jersey mediation privilege. Unless the parties agree otherwise, documents withheld on privilege grounds must be logged, see Local Civ. R. 26.2, by the party claiming the privilege.
Domareki must sit for a single deposition, by Zoom, which is no longer than seven hours in the aggregate, spread over two days, with reasonable breaks as needed to accommodate the witness's health concerns. He is not to be questioned about matters protected by the attorney client privilege, the work product doctrine, or the New Jersey mediation privilege. Three and a half hours of questioning are allocated to Oasis, and three and a half hours to the I-MED Defendants. The Court will not hesitate to extend these limits, and impose an appropriate sanction, if Domareki is uncooperative, or if the attorneys interpose excessive or inappropriate objections or otherwise act to unreasonably prolong the deposition. See Fed.R.Civ.P. 30(d)(1)-(2).
All relief not expressly granted herein is DENIED.
The Clerk of Court is respectfully directed to close the motions at Dkts. 2, 15, and 48, and to file this Memorandum and Order under seal, at the "selected parties" viewing level, such that only the attorneys appearing for the parties, and court personnel, may view it . By separate order, the Court will give the parties an opportunity to submit proposed redactions before this Memorandum and Order is filed in public view.
SO ORDERED.