Case No. 1:18-cv-00691-PAB-STV Document 362-1 filed 04/30/21 USDC Colorado pg 1
`of 8
`
`EXHIBIT 1
`
`
`of 8
`
`EXHIBIT 1
`
`
`
`Case No. 1:18-cv-00691-PAB-STV Document 362-1 filed 04/30/21 USDC Colorado pg 2
`of 8
`Case 0:21-cv-60447-WPD Document 34 Entered on FLSD Docket 04/23/2021 Page 1 of 7
`
` UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF FLORIDA
`
`CASE NO. 21-60447-CIV-DIMITROULEAS/SNOW
`
`
`
`ROBERT PALMISANO
`
`Plaintiff,
`
`v.
`
`PARAGON 28, INC.,
`
`Defendant.
`
`_______________________________________________/
`
`
`ORDER
`
`
`
`
`THIS CAUSE is before the Court on Robert Palmisano’s and Wright Medical
`
`Technology,
`
`Inc.’s
`
`(Movants) Motion
`
`for Reconsideration/Clarification and
`
`Incorporated Memorandum of Law. (ECF No. 29, 32)
`
`
`
`Factual Background
`
`On April 7, 2021, this Court entered an Order denying Movants’ motions for
`
`protective order and motions to quash the deposition subpoenas of Robert Palmisano.
`
`(ECF No. 27) Movants filed a Motion for Reconsideration/Clarification and
`
`Incorporated Memorandum of Law on April 21, 2021. (ECF No. 29) the Court issues
`
`this Order prior to full briefing, finding that no response is required for resolution of
`
`this Motion.
`
`
`
`
`
`1
`
`
`
`Case No. 1:18-cv-00691-PAB-STV Document 362-1 filed 04/30/21 USDC Colorado pg 3
`of 8
`Case 0:21-cv-60447-WPD Document 34 Entered on FLSD Docket 04/23/2021 Page 2 of 7
`
`Discussion
`
`The purpose of a motion for reconsideration is “to correct manifest errors of law
`
`or fact or to present newly discovered evidence.” Z.K. Marine Inc. v. M/V Archigetis,
`
`808 F. Supp. 1561, 1563 (S.D. Fla. 1992). There are “three major grounds that justify
`
`reconsideration: (1) an intervening change in controlling law; (2) the availability of
`
`new evidence; and (3) the need to correct clear error or prevent manifest injustice.”
`
`Association for Disabled Americans, Inc. v. Amoco Oil Company, 211 F.R.D. 457, 477
`
`(S.D. Fla. 2002) (internal citations omitted). It is within the Court’s discretion to
`
`reconsider its order. See Am. Home Assurance Co. v. Glenn Estess & Assoc. Inc., 763
`
`F.2d 1237, 1238-39 (11th Cir 1985). The Court finds that Movants fail to satisfy any
`
`of the requirements for reconsideration or clarification of this Court’s prior Order.
`
`I. The Court’s factual findings do not warrant reconsideration
`
`Movants argue that the Court mischaracterized the agreement between
`
`Wright and Paragon when it stated that the “parties agreed to defer the deposition
`
`until after Paragon deposed Wright Medical’s Rule 30(b)(6) representative, Patrick
`
`Fisher.” (ECF No. 29 at 5) According to Movants, the parties agreed that Paragon
`
`could re-notice Palmisano’s deposition if, after deposing Wright’s 30(b)(6) and 30(b)(1)
`
`witnesses and reviewing Wright’s and Palmisano’s documents, Paragon could not
`
`obtain discovery, and Palmisano possessed unique, firsthand knowledge. (ECF No.
`
`29 at 2)
`
`First, the Court finds that the facts were correctly characterized. The Court
`
`stated that the parties agreed to defer the deposition until after Paragon sought the
`
`
`
`2
`
`
`
`Case No. 1:18-cv-00691-PAB-STV Document 362-1 filed 04/30/21 USDC Colorado pg 4
`of 8
`Case 0:21-cv-60447-WPD Document 34 Entered on FLSD Docket 04/23/2021 Page 3 of 7
`
`information from Wright’s Rule 30(b)(6) representative, and Paragon would re-notice
`
`the deposition if it believed that Palmisano still possessed personal, unique
`
`information. (ECF No. 27 at 2) The Court also noted that Paragon’s previous
`
`document requests were futile, and Paragon already had deposed more than 25
`
`Wright witnesses. (ECF No. 27 at 2–3, 9) Because the Rule 30(b)(6) deposition was
`
`conducted immediately before the discovery deadline, the Court found that Movants
`
`should have expected the subpoena to be re-noticed after Wright’s 30(b)(6) witness
`
`was unable to answer relevant questions. (ECF No. 27 at 2–5) Accordingly, the
`
`Court’s understanding of the agreement was consistent with that of the Movants:
`
`once Paragon deposed Wright’s witnesses, including its Rule 30(b)(6) witness, and
`
`reviewed relevant documents, it would re-notice the deposition subpoena if it believed
`
`Palmisano had unique, personal knowledge.
`
` Even if the Court were to agree with Movants’ characterization, it is of no
`
`moment. Movants argue that the misunderstanding affected the Court’s finding that
`
`eight-days’ notice was reasonable. (ECF No. 29 at 6) However, Movant’s prior notice
`
`of the possibility that Paragon would re-notice Palmisano’s deposition was one factor,
`
`among others, that made the timeframe reasonable. The Court also noted that the
`
`subpoena did not require the production of documents and was made promptly
`
`following Fisher’s deposition. (ECF No. 27 at 4–5) Accordingly, the Court’s analysis
`
`would have remained the same.
`
`
`
`
`
`
`
`3
`
`
`
`Case No. 1:18-cv-00691-PAB-STV Document 362-1 filed 04/30/21 USDC Colorado pg 5
`of 8
`Case 0:21-cv-60447-WPD Document 34 Entered on FLSD Docket 04/23/2021 Page 4 of 7
`
`II. The Court’s application of the apex doctrine does not warrant
`reconsideration
`
`Under the apex doctrine, courts generally restrict the deposition of high-
`
`ranking executives unless: (1) the executive has unique, personal knowledge of
`
`relevant facts, and (2) other less intrusive means of discovery have been exhausted
`
`without success. Noveshen v. Bridgewater Assocs., LP, No. 13-61535-CIV, 2016 WL
`
`536579, at *1 (S.D. Fla. Feb. 3, 2016).
`
`a. Palmisano likely has unique, personal knowledge
`
`Movants cite the Court’s footnote at page seven to argue that Palmisano does
`
`not possess unique, personal knowledge. (ECF No. 29 at 7) Movants argue that even
`
`if Palmisano was speaking “off the cuff,” his statements most likely were based upon
`
`information provided by other Wright employees who were present during the
`
`earnings call. (ECF No. 29 at 6–7) Movants’ contention, however, is belied by
`
`testimony from Wright’s Rule 30(b)(6) representative who, when asked whether he
`
`knew where Palmisano got the information, said “I don’t know.” (ECF No. 24-2 at 26)
`
`Moreover, Movants’ primary arguments in their Motions were that Palmisano relied
`
`upon a script, and Wright’s Rule 30(b)(6) representative answered all relevant
`
`questions. (ECF No. 1 at 7) (ECF No. 4 at 9–10) The evidence shows that Palmisano
`
`went off-script, and Wright’s representative did not know the basis or source for those
`
`statements. (ECF No. 27 at 7) Accordingly, the Court properly founds that Palmisano
`
`may possess unique, personal knowledge about statements he made in the earnings
`
`reports.
`
`
`
`4
`
`
`
`Case No. 1:18-cv-00691-PAB-STV Document 362-1 filed 04/30/21 USDC Colorado pg 6
`of 8
`Case 0:21-cv-60447-WPD Document 34 Entered on FLSD Docket 04/23/2021 Page 5 of 7
`
`Movants also challenge the Court’s conclusion that Palmisano had unique
`
`knowledge about Wright’s compensation structure. (ECF No. 29 at 7) Movants claim
`
`that the Court’s conclusion was based on the erroneous assumption that Palmisano
`
`independently developed his own personal understanding. (ECF No. 29 at 7–8)
`
`According to Movants, Palmisano’s knowledge was based solely upon information
`
`shared with him during meetings. (ECF No. 29 at 7)
`
`As stated in its Order, the evidence demonstrates that Palmisano likely
`
`developed a unique understanding of the compensation structure based on his
`
`involvement during meetings and conversations with other employees. (ECF No. 27
`
`at 8–9) Based upon the information he learned, Palmisano developed opinions that
`
`differed from others present during the meetings and from other employees. (ECF
`
`No. 27 at 8) Thus, Palmisano likely has unique knowledge that cannot be obtained
`
`through other sources.
`
`b. Paragon met the exhaustion prong of the apex doctrine
`
`Movants state that prong two of the apex doctrine requires two inquiries. (ECF
`
`No. 29 at 9) First, whether the opposing party sufficiently exhausted less intrusive
`
`means of discovery. Second, whether those exhaustion efforts were “without success.”
`
`Movants claim the Court applied the first half of the test but failed to analyze whether
`
`Paragon’s exhaustion efforts were “without success.” (ECF No. 29 at 9) This argument
`
`is likewise incorrect.1
`
`
`1 If the Court determines that the apex deponent possesses unique, personal, non-
`repetitive information, and that less intrusive means of discovery were sufficiently
`
`
`
`5
`
`
`
`Case No. 1:18-cv-00691-PAB-STV Document 362-1 filed 04/30/21 USDC Colorado pg 7
`of 8
`Case 0:21-cv-60447-WPD Document 34 Entered on FLSD Docket 04/23/2021 Page 6 of 7
`
`The Court found that Paragon made sufficient efforts to obtain the
`
`information, and those efforts were unsuccessful. (ECF No. 27 at 9) The Court noted
`
`that Paragon’s document requests were not fruitful, and Fisher was unable to answer
`
`specific questions about statements made during earnings calls. (ECF No. 27 at 9)
`
`The Court also found that Palmisano’s statements contradicted testimony from other
`
`Wright witnesses. See Salter v. Upjohn, 593 F. 2d 649, 651 (5th Cir. 1979) (stating
`
`that a court should allow an apex deposition when the testimony of other witnesses
`
`contradicts statements made by the apex deponent). (ECF No. 27 at 8–9) Moreover,
`
`the Court explained that complete exhaustion was not required because the apex
`
`doctrine stems from the Court’s broad discretion to control the timing of discovery.
`
`Id. (ECF No. 27 at 9) Accordingly, the Court properly exercised its discretion when it
`
`found that Paragon sufficiently exhausted less intrusive methods of discovery. See
`
`Apple Inc. v. Corellium, LLC, No. 19-81160-CV, 2020 WL 1849404, at *3 (S.D. Fla.
`
`Apr. 13, 2020) (rejecting apex doctrine when less intrusive discovery methods were
`
`not completely successful and discovery deadline was one week away); Reilly v.
`
`Chipotle Mexican Grill, Inc., No. 15-CV-23425, 2016 WL 10644064, at *6 (S.D. Fla.
`
`Sept. 26, 2016) (finding second prong satisfied despite plaintiff having taken just four
`
`individual depositions and no 30(b)(6) deposition).
`
`
`
`
`
`
`exhausted, those exhaustion efforts were necessarily unsuccessful. Any further
`analysis of “success” would be duplicative.
`
`
`
`
`6
`
`
`
`Case No. 1:18-cv-00691-PAB-STV Document 362-1 filed 04/30/21 USDC Colorado pg 8
`of 8
`Case 0:21-cv-60447-WPD Document 34 Entered on FLSD Docket 04/23/2021 Page 7 of 7
`
`III. The requested discovery on the underlying facts is relevant
`
`Movants argue that Wright’s pre-suit investigation and Wright’s decision to
`
`file suit lack any relevance to the case. (ECF No. 29 at 10) Movant’s claim that the
`
`difficulty of “unwinding” facts and communications should be weighed against the
`
`probative value of the information. (ECF No. 29 at 11)
`
`The Court found that Palmisano could be questioned about the factual basis
`
`for specific factual allegations made in the Complaint. (ECF No. 4 at 5) (ECF No. 14
`
`at 3, 14) Such information is clearly relevant to the case. Paragon may also ask about
`
`Paragon’s rumored acquisition, and if so, when he became aware of that information.
`
`(ECF No. 27 at 16) That information may also lead to information that proves or
`
`disproves allegations in the Complaint. The Court finds that any burden should be
`
`minimized given the narrow scope of the topics and the instructions provided in the
`
`Court’s Order.
`
`CONCLUSION
`
`Having carefully reviewed the Motion, the court file and applicable law, and
`
`finding no response necessary, it is hereby
`
`
`
`ORDERED
`
`AND
`
`ADJUDGED
`
`that Movants’ Motion
`
`for
`
`Reconsideration/Clarification is DENIED.
`
`DONE AND ORDERED this 23rd day of April, 2021 in Ft. Lauderdale, Florida.
`
`
`
`
`
`
`
`Copies furnished to:
`The Honorable William P. Dimitrouleas
`All Counsel of Record
`
`
`
`7
`
`
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
