Procaps S.A. v. Patheon Inc. et al
ORDER granting in part and denying in part #690 Patheon's Motion for Leave to Take Depositions. Signed by Magistrate Judge Jonathan Goodman on 5/5/2015. (tr00)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 12‐24356‐CIV‐GOODMAN
ORDER ON PATHEON’S MOTION FOR LEAVE
TO TAKE DEPOSITIONS
After taking its limit of 10 depositions and after the Court entered an Order [ECF
No. 689] permitting Defendant Patheon, Inc. (“Patheon”) and the Special ESI Master to
take the deposition of the Court‐Appointed Forensic Expert, Patheon now wants
authority to take additional fact depositions. In its Motion for Leave to Take
Depositions [ECF No. 690] Patheon seeks to take another 30(b)(6) deposition and to take
a second round of depositions of six Procaps S.A. (“Procaps”) officers and/or employees
whose depositions were previously taken. Patheon wants each of the seven depositions
it requests to be a full seven hours, which means that Patheon is seeking 49 hours of
The defendant in Procaps’ federal antitrust lawsuit seeking more than $350
million in treble damages, Patheon asserts two primary grounds for its request for more
depositions: (1) Procaps is now pursuing its antitrust claims under a rule of reason
analysis but the depositions previously taken were when Procaps proclaimed it would
pursue only a per se or quick look case and successfully resisted discovery designed to
obtain documents and information concerning rule of reason issues; and (2) Procaps
recently produced approximately 115,000 documents ‐‐ as the byproduct of a forensic
analysis performed by a Court‐appointed ESI retrieval expert ‐‐ and Patheon did not
have these materials available the first time it took the depositions.
Not surprisingly, Procaps objects. It contends [ECF No. 707] that Patheon has not
met its burden to justify the depositions. Procaps argues that “most” of the claims and
defenses remain “exactly the same” and notes that it has already stipulated that it is not
proceeding under a theory that an inference of anticompetitive effects made from
projected or present market shares or market power.
The parties are also feuding over procedural aspects of the requested
depositions; Patheon wants them in Washington, D.C. and Procaps’ position is that
Miami is the more‐appropriate venue (assuming that any depositions are permitted in
the first place).
For the reasons outlined below, the Court grants in part and denies in part
Patheon’s motion. Patheon may take one seven‐hour 30(b)(6) deposition and may take a
total of seven hours of deposition from one or more of the six fact witnesses mentioned
in Patheon’s motion. Thus, Patheon will be able to take 14 (not 49) hours of additional
depositions. The depositions will be in Miami.
The background and analysis are outlined below:
Procaps represented on several occasions that it was pursuing a “per se” or “quick
look” type of antitrust claim.
For example, Patheon moved to dismiss the Complaint because, it argued,
Procaps did not allege a full rule of reason claim. [ECF No. 34‐1]. Procaps objected to
the dismissal motion, arguing that the Complaint alleged only a per se theory of liability
or a quick look analysis. Therefore, Procaps argued then, it did not need to plead the
elements of a rule of reason claim, such as market power or market effects. [ECF No.
37]. The District Court ‐‐ which presided over the case before there was full consent to
the Undersigned ‐‐ denied the motion to dismiss, finding that Procaps had sufficiently
alleged a per se antitrust claim [ECF No. 50].
In addition, during discovery disputes, Procaps explained that it would not be
pursuing a full‐fledged rule of reason approach and argued that this concession
rendered certain discovery irrelevant.
Patheon and the Court relied upon Procaps’ position and the Court, in effect,
brokered an acceptable (to the parties) resolution of significant discovery disputes. That
compromise enabled Procaps to avoid providing certain discovery related to the rule of
reason type of analysis.
In response to competing summary judgment motions, the Court determined
that Procaps’ claims would not be assessed under a per se analysis. Instead, the Court
concluded that the rule of reason theory would govern. Since that ruling and a later,
related ruling denying a reconsideration motion, Procaps has been proceeding on a rule
of reason approach. Procaps’ lawsuit was filed in December 2012. The Order on the
summary judgment motions [ECF No. 565] was entered on July 30, 2014. Procaps filed
the reconsideration motion [ECF No. 569] on August 14, 2014, and the Court denied it
[ECF No. 603] on October 2, 2014.
Given this change in approach, the Undersigned granted, in part [ECF No. 648],
Patheon’s motion for leave to serve additional rule of reason discovery. Specifically, the
Court required [ECF No. 648] Procaps to answer 16 rule of reason interrogatories.
Patheon then filed a motion [ECF NO. 662] to compel better interrogatory answers,
which the Court granted in part [ECF No. 678]. That Order required Procaps to provide
supplemental answers, with details, and also directed Procaps to formally advise the
Court and Patheon of its position on how it intends to prove an anticompetitive effect
on the market.
Still not satisfied with the supplemental answers, Patheon has now filed [ECF
No. 699] a motion for failure to comply with discovery order. Patheon has not yet
responded to that motion (and the deadline to do so has not yet expired), so the motion
is still pending but is not yet ripe.
In its motion for leave to take additional (or renewed) depositions, Patheon
advised that it would not comply with Procaps’ demand that it define the scope of the
depositions because to do so would reveal work product. Nevertheless, Patheon offered
to submit a sample under seal for in camera inspection. The Undersigned took Patheon
up on its offer and directed [ECF No. 692] Patheon to submit for in camera review a
sample of 20 recently‐produced documents. Before Patheon complied, Procaps filed a
motion for reconsideration [ECF No. 696], arguing, among other things, that it would be
unfair to proceed with an arrangement where the Court would substantively evaluate
and rely upon documents which Procaps had no opportunity to address.
The Court held a hearing on April 30, 2015 and gave Patheon a choice: it could
either not submit any documents for the Undersigned to review in connection with its
motion to take additional depositions or it could publicly (i.e., not under seal) file the 20
sample documents (which were concededly not privileged)1 and explain, on a witness‐
by‐witness basis, why a document (or group of documents) supported the request to
take additional depositions. Patheon chose to not submit any documents. [ECF No. 701].
Patheon took the position that its selection of 20 documents (from the
approximate 115,000 produced during the forensic examination) is privileged work
product. Procaps challenged that legal position. The Undersigned makes no ruling on
the question of whether a Patheon submission of 20 documents for review by the Court
constitutes attorney work product.
Therefore, Patheon’s motion for additional depositions is not based on the
argument that the newly produced documents contain some type of “smoking gun”
document, nor is it based on the argument that a specific document changes the factual
landscape to such a degree that renewed depositions of the seven witnesses are
The newly produced documents arose in connection with the Court’s
appointment of a neutral forensic expert, who conducted an analysis of Procaps’ ESI.
The expert was appointed without objection from Procaps, which acknowledged that its
ESI search efforts were inadequate. The ESI forensic expert who ultimately performed
the project in this case was appointed on March 25, 2014. [ECF No. 432]. Although
Procaps was permitted to review the ESI located by the neutral ESI expert for privilege,
it was not permitted to withhold documents on relevancy grounds. Patheon has not
explained how many of the 115,000 documents are relevant to this lawsuit, nor has it
pinpointed how many are, for all practical purposes, duplicates of documents or ESI
previously produced. According to Patheon’s motion (filed April 27, 2015), Procaps
produced 91,000 documents from the forensic analysis as of the time the motion was
prepared, and it advised that Procaps expected to produce an additional 24,000
documents later that same day, which explains how Patheon arrived at the 115,000‐
document description it uses in the motion.
Over Procaps’ objection, the Undersigned recently entered an Order [ECF No.
689] permitting the ESI Special Master and the parties to take the neutral forensic
expert’s deposition. To the best of the Court’s understanding, that deposition has not
Federal Rule of Civil Procedure 30(a)(2) requires a party to obtain leave of court
to take depositions, in the absence of a stipulation, in four situations, two of which
apply here. In particular, Rule 30(a)(2)(A)(i) requires leave if the deposition would
“result in more than 10 depositions being taken” by one side and Rule 30(a)(2)(A)(ii)
requires leave if the deponent “has already been deposed in the case.”
Subsection (i) applies to all seven depositions requested by Patheon and
subsection (ii) applies to at least six of the seven and may arguably apply to the seventh,
the request for another 30(b)(6) deposition, as well.2
The Advisory Committee Notes to the 1993 Amendments explain that “[a]
deposition under Rule 30(b)(6) should, for purposes of this limit [of 10 depositions], be
treated as a single deposition even though more than one person may be designated to
testify.” See Loops, LLC v. Phoenix Trading, Inc., No. C08‐1064, 2010 WL 786030 (W.D.
Wash. March 4, 2010) (concluding that “there is no reason to count the depositions as
two simply because Plaintiffs divided the topics into two subgroups rather than
lumping them into one”). But this does not necessarily answer the question of whether
leave of court is necessary in order to take a second 30(b)(6) deposition, regardless of
who Procaps produces as the designee and regardless of whether the issues listed are
different from those listed on the first corporate deposition. See generally State Farm Mut.
Auto. Ins. Co. v. New Horizont, Inc., 254 F.R.D. 227, 234‐235 (E.D. Pa. 2008) (summarizing
split in district court decisions). See also 8A, Wright, Miller & Marcus, Federal Practice &
Procedure (3d Ed.), § 2104 (noting that “the one‐deposition provision could be an
Courts typically make case‐by‐case determinations when asked to determine if
additional depositions beyond the ten‐deposition limit may be taken and when
confronted with a request to take a second deposition of a witness whose deposition
was already taken. See e.g., San Francisco Health Plan v. Mckesson Corp., 264 F.R.D. 20 (D.
Mass. 2010) (denying permission to take depositions of two additional witnesses but
authorizing depositions of nine additional witnesses on the condition that the party
seeking the additional depositions would pay the reasonable costs incurred by the
opposing party for any additional depositions beyond the first five); Byrd v. District of
Columbia, 259 F.R.D. 1 (D.D.C. 2009) (in an action by former city employees alleging
sexual discrimination and harassment, the trial court granted plaintiffs’ motion for
leave to take depositions, finding that none of the three depositions at issue “are
cumulative or duplicative or impose a burden that outweighs their likely benefit”);
obstacle to sensible handling of Rule 30(b)(6) organizational depositions” and urging
flexibility because, “although such a deposition is properly regarded as the deposition
of an organizational party, rigid insistence on adhering to the one‐deposition rule in
such circumstances would not make sense”). But see Ameristar Jet Charter, Inc. v. Signal
Composites, Inc., 244 F.3d 189, 192 (1st Cir. 2001) (not plainly wrong for district court to
quash a 30(b)(6) subpoena issued without leave when the corporate deponent
previously provided two designees to provide deposition testimony two years earlier).
Cf. Quality Aero Technology, Inc. v. Telemetrie Elektronik, GMBH, 212 F.R.D. 313, 319
(E.D.N.C. 2002) (noting that 30(b)(6) “depositions are different from depositions of
individuals” and holding that “there is no aspect of the Rules which either restricts a
party to a single 30(b)(6) deposition[.]”).
The Undersigned is not deciding whether leave is required to take a second
30(b)(6) deposition under the “deponent has already been deposed in the case”
provision of Rule 30(a)(2)(A)(ii). Instead, the Undersigned is granting leave, which
obviates the need to wrangle with this thorny question.
ClearOne Commc’ns, Inc. v. Chiang, 276 F.R.D. 402, 404 (D. Mass. 2011) (judgment debtor
failed to demonstrate good cause for protective order preventing judgment creditor
from taking his deposition a second time in a two‐year period; court granted mirror
image motion to compel deposition, noting that creditor was seeking information that
was “unavailable” when the debtor gave a deposition two years earlier). Cf. Flintkote Co.
v. Gen. Acc. Assur. Co. of Canada, 692 F. Supp. 2d 1194 (N.D. Cal. 2010) (permitting
further deposition testimony of insurer’s witnesses, who previously gave depositions
but who were instructed to not answer certain questions about reserves, and directing
that additional depositions were warranted to understand charts concerning reserves
which were provided after the depositions were taken).
Given that courts evaluate requests for additional depositions on a case‐by‐case
basis, it is hardly surprising to find cases going both ways. See Andrews v. Fowler, 98
F.3d 1069, 1080 (8th Cir. 1996) (civil rights claimant not entitled to take additional
depositions of city council members and other witnesses when she was already
permitted to take twelve depositions, two more than permitted without leave of court);
Alexander v. Federal Bureau of Investigation, 192 F.R.D. 20 (D.D.C. 2000) (allowing
plaintiffs to take the deposition of a new nonparty witness even though they had
exhausted the limit for the number of depositions because the witness’ knowledge had
only recently come to plaintiffs’ attention).
Because of the fact‐intensive nature of decisions on the issue of the number of
depositions and the ability to take another deposition of a deponent, decisions from
other courts are typically not persuasive. The Court has discretion to permit or deny the
Moreover, the reality is that there is not a large, well‐developed body of case law
on the deposition limits imposed by Rule 30, perhaps because the parties usually
resolve any disputes without court intervention. Given the level of acrimony in this
case, however, it would be overly optimistic to expect that the two parties here would
reach a compromise on Patheon’s request for additional depositions. But given the
parties’ chronic inability to resolve discovery disputes, the Undersigned finds that the
following language from Fresenius Med. Care Holdings, Inc. v. Roxane Lab., Inc., No. 2:05‐
cv‐0889, 2007 WL 764302, at *3 (S.D. Ohio March 9, 2007) to be instructive and
The Court adds an additional comment. There is little motions practice in
this district over any issues presented by Rule 30(a), whether those issues
relate to taking more than ten depositions, taking the second deposition of
the same witness, or exceeding the 7‐hour limit on a deposition set forth in
Rule 30(d). That is because most counsel understand that the Court
attempts to interpret these rules in light of reason and practical experience
and that the Court will enforce the rules strictly when necessary and relax
them when required. The circumstances presented here would, in almost
every other case pending in this District, have led to a consensual
resolution of the issue because the party at fault in failing to produce an
important document would understand that it would be unfair to
preclude the opposing party from examining an important witness about
the document and that the Court would consider the non‐production of
the document to be the type of circumstance which would justify a short
additional deposition. The fact that the parties in this case were unable to
reach such a resolution is, taken together with the extensive amount of
motions practice devoted to discovery, a strong indicator that they have
lost sight of the goal of resolving discovery disputes reasonably and
without intervention of the Court and have chosen instead to litigate
every issue, no matter how minor, with a view toward increasing the cost
and expense of litigation rather than streamlining its resolution.
Accepting the reality that Procaps and Patheon have generated a substantial
number of discovery disputes and that counsel appear to genuinely dislike each other,
the Court is nevertheless sensitive to both parties’ concerns. From Patheon’s
perspective, it believes it needs to take significant amounts of additional discovery to
adequately defend against the comparatively new rule of reason theory and to explore
the new documents which have been produced. From Procaps’ perspective, it has
already provided significant amounts of discovery and does not believe that an early
discovery snafu (i.e., not adequately searching for ESI) should haunt it for the
remainder of the case.
The Undersigned finds that both parties have legitimate concerns. Neither side is
completely persuasive, however. The Undersigned finds that Patheon would be unduly
prejudiced if no additional depositions were permitted. On the other hand, the
Undersigned also finds that Procaps would be unduly prejudiced if all seven
depositions were to occur. Therefore, the Court needs to engage in an equity‐based
In doing so, the Undersigned notes that Patheon has not pinpointed the
significance of any specific documents recently produced by Procaps. Regardless of
whether a document might be deemed a “smoking gun” or merely substantively
significant, Patheon has not targeted any specific documents and has not explained the
significance of any of the newly released documents. It could be that much of the new
production is cumulative or irrelevant. Although Patheon was (apparently) prepared to
submit 20 sample documents under seal for in camera review, it decided to not pursue
that option. To be sure, the Undersigned understands that Patheon might not want to
reveal its strategy by highlighting which of 115,000 documents it deems most significant
or which it wants to use at new depositions or which documents relate to specific
witnesses. But Patheon cannot expect the Court to somehow assume that all or most of
the documents have substantive significance or that they concern new facts not revealed
in previously‐produced documents.
On the other hand, it would be naïve and illogical to assume the contrary ‐‐ i.e.,
that none of the 115,000 documents have substantive significance not otherwise
disclosed in earlier production.
Concerning Procaps’ change in theory (from a per se or quick look approach to a
rule of reason approach), it may well be true, to use Procaps’ comments, that “most” of
the factual claims and defenses raised in the pleadings “remain exactly the same.” But
most is not all. Therefore, the converse of Procaps’ description is that some of the claims
and defenses are not “exactly the same.” Patheon is entitled to obtain discovery on the
comparatively new rule of reason theory now being advanced by Procaps.
The Undersigned appreciates Procaps’ desire to obtain more information about
the scope of the requested depositions, but I also acknowledge Patheon’s logical
preference to not reveal its strategies about depositions it hopes to soon take. Therefore,
the Court does not have much information about the specific information which
Patheon wishes to explore, especially on a witness‐by‐witness basis.
Under these circumstances, the Court needs to accommodate both parties’ views,
and has done so with the following ruling:
Patheon may take a 30(b)(6) deposition on issues concerning: (1) the rule
of reason theory, (2) new information revealed in the new document production (from
the forensic audit project), and/or (3) potential spoliation.
This 30(b)(6) deposition is limited to seven hours.
Patheon must provide a specific, pinpoint list of the precise issues for the
30(b)(6) deposition. If Procaps objects to any issue and is unable to resolve the dispute
after a good faith conferral, then it must immediately contact chambers and request a
discovery hearing as quickly as possible. What it cannot do, however, is simply lodge
an objection and then not have an appropriately‐prepared designee appear at the
Procaps may use one or more designees to answer questions on the topics
which Patheon puts on its list. The designation decision is Procaps’ and Procaps need
not advise Patheon in advance of the 30(b)(6) deposition how many designees it will be
producing or their names. It can, of course, disclose that information if it is willing to
Patheon may take seven hours’ of deposition testimony from one or more
of the six witnesses listed in its motion, limited to the same three topics listed above
concerning the 30(b)(6) deposition. Patheon may take the depositions of one, some or
all of the six witnesses listed ‐‐ but the total amount of deposition time for all witnesses
combined will be limited to seven hours. Therefore, to provide an example, Patheon
may decide to take Mr. Franco’s deposition again for seven hours. If it does so, then it
may not take any other fact witness depositions. Alternatively, it can take Mr. Franco’s
deposition again for 3 hours (but only on the permissible topics), take Mr. Minski’s
deposition again for 3 hours (only on the three permissible topics) and take Mr. Green’s
deposition for one hour (on the three categories).
To the extent that interpreters are used for either the 30(b)(6) deposition or
the fact witness depositions, the time will be adjusted, based on the rule that the use of
an interpreter doubles the deposition time. To provide an example, if Patheon retakes
the deposition of Mr. Minski for two hours with an interpreter, then Patheon will have
used one hour of the seven hours allotted in this order.
The depositions will be in Miami. Counsel shall cooperate in coordinating
the scheduling of these depositions. The Undersigned will not micromanage these
depositions by selecting deposition dates or imposing a precise deadline by which they
must be completed. Nevertheless, the parties are by now familiar with the Court’s
policy of keeping everyone focused on the November 16, 2015 trial date and the overall
philosophy that doing something sooner is better than later.
The depositions are not designed to give Patheon a second bite at the
apple, nor are they intended to permit Patheon to seek to take better depositions or to
follow up on issues it now believes it did not adequately cover previously. To the
contrary, the depositions are provided solely to prevent undue prejudice to Patheon
caused by either the change in legal theory, the new production of documents or the
deletion of ESI. Questions not related to these three categories are not permitted at the
depositions authorized by this Order.
Each side will bear its own costs and attorney’s fees for the limited
depositions permitted in this Order.
The Court declines to award attorney’s fees to either party in connection
with Patheon’s motion for leave to take additional depositions. Both sides’ positions
The Court grants in part and denies in part Patheon’s motion and additional
depositions may be taken under the rules outlined above.
DONE AND ORDERED in Chambers, in Miami, Florida, May 5, 2015.
Copies furnished to:
All Counsel of Record
John Barkett, Special Master
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