Opinion

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

_____________________________________

MOSAIC HEALTH, INC. and CENTRAL

VIRGINIA HEALTH SERVICES, INC.,

individually and on behalf of all those

similarly situated,

DECISION AND ORDER

Plaintiffs,

6:21-CV-06507 EAW CDH

v.

SANOFI-AVENTIS U.S., LLC, ELI

LILLY AND COMPANY, LILLY USA,

LLC, NOVO NORDISK INC., and

ASTRAZENECA PHARMACEUTICALS

LP,

Defendants.

_____________________________________

BACKGROUND

In this putative class action, plaintiffs Mosaic Health, Inc. and Central

Virginia Health Services, Inc. (collectively “Plaintiffs”) allege that defendant

pharmaceutical companies Sanofi-Aventis U.S., LLC, Eli Lilly and Company and

Lilly USA, LLC, Novo Nordisk Inc., and AstraZeneca Pharmaceuticals LP

(collectively “Defendants”) have violated state and federal antitrust laws by

“coordinating to retract a long-standing discount for safety-net hospitals and clinics.”

(Dkt. 93 at ¶ 1).

This case has been referred to the undersigned for all non-dispositive pretrial

matters. (Dkt. 107). On June 25, 2026, consistent with the undersigned’s individual

practices1, the Court received a letter from Defendants regarding “a discovery dispute

concerning outreach by Plaintiffs’ counsel to Defendants’ former employees.” (Dkt.

168 at 1). Defendants attached to their letter a proposed protective order2 requiring

that any party intending to contact another party’s former employee provide a

“modest ten-day notice period.” (Id. at 1, 7-9). Defendants noted Plaintiffs’ opposition

to this proposal and requested the Court’s intervention. (Id. at 1). On July 1, 2026,

Plaintiffs sent a responsive letter to the Court setting forth the basis for their

opposition. (Dkt. 169).3

The Court scheduled a hearing for July 9, 2026, at which it heard oral

argument on this dispute. (Dkt. 151; Dkt. 156; Dkt. 160). The Court afforded the

parties an opportunity to file further written submissions on the matter, but the

parties agreed that no such additional submissions were required. (Dkt. 156; see also

Dkt. 160 at 40-42). The Court accordingly took the matter under advisement. (Dkt.

156).

1 See United States District Court, Western District of New York, Judges’ Info,

Magistrate Judges, Hon. Colleen D. Holland, Discovery Disputes,

https://www.nywd.uscourts.gov/content/hon-colleen-d-holland (last accessed August

11, 2026).

2 Defendants captioned this document as a proposed “case management

protocol,” but agreed at the hearing held on July 9, 2026, that it would function as a

protective order. (Dkt. 160 at 8-9).

3 For purposes of the record, the Court has filed copies of the parties’ letters on

the docket in this case contemporaneously with the filing of the instant Decision and

Order.

Having carefully considered the parties’ respective positions, and for the

reasons below, the Court denies Defendants’ request for a protective order requiring

ten days’ advance notice before engaging in communications with an opponent’s

former employees.

DISCUSSION

I. Legal Standard

A federal court has “‘broad discretion to manage’ or otherwise limit discovery

based on the circumstances.” Garcia v. Benjamin Grp. Enter. Inc., 800 F. Supp. 2d

399, 403 (E.D.N.Y. 2011) (quoting In re Subpoena Issued to Dennis Friedman, 350

F.3d 65, 69 (2d. Cir. 2003)). Consistent with such authority, Federal Rule of Civil

Procedure 26(c) provides that “[t]he court may, for good cause, issue an order to

protect a party or person from annoyance, embarrassment, oppression, or undue

burden or expense[.]” Fed. R. Civ. P. 26(c)(1).

“The burden of showing good cause for the issuance of a protective order falls

on the party seeking the order.” Ampong v. Costco Wholesale Corp., 550 F. Supp. 3d

136, 139 (S.D.N.Y. 2021). “To establish good cause under Rule 26(c), courts require a

particular and specific demonstration of fact, as distinguished from stereotyped and

conclusory statements.” Jerolimo v. Physicians for Women, P.C., 238 F.R.D. 354, 356

(D. Conn. 2006) (citations and quotation omitted).

II. The Court’s Authority to Issue the Requested Protective Order

As a threshold matter, Plaintiffs have argued that the Court lacks the

authority to issue the protective order requested by Defendants. (See Dkt. 160 at 9).

Plaintiffs’ argument rests on the New York Rules of Professional Conduct and this

District’s Local Rules of Civil Procedure—specifically, Local Rule 83.3(a), which

provides that “[a]ttorneys practicing in this Court shall faithfully adhere to the New

York Rules of Professional Conduct” and that “[i]n interpreting the New York Rules

of Professional Conduct, absent binding authority from the United States Supreme

Court or the United States Court of Appeals for the Second Circuit or significant

federal interests, this Court . . . will give due regard to decisions of the New York

Court of Appeals and other New York State courts.” W.D.N.Y. Loc. R. Civ. P 83.3(a).

Plaintiffs argue that, via Local Rule 83.3(a), the New York Court of Appeals’

decisions in Muriel Siebert & Co. v. Intuit Inc., 8 N.Y.3d 506 (2007), and its progeny

(including Arons v. Jutkowtiz, 9 N.Y.3d 393 (2007)) are “controlling” and foreclose the

possibility of the Court imposing the restrictions requested by Defendants. (Dkt. 169

at 2; Dkt. 160 at 9-10). Defendants disagree and argue that while the New York Rules

of Professional Conduct govern the conduct of the attorneys in this case, the Court’s

ability to impose discovery restrictions is defined by the Federal Rules of Civil

Procedure and federal common law. (See Dkt. 160 at 16).

The Court agrees with Defendants that Muriel Siebert and its progeny do not

define the scope of the Court’s authority. The relevant line of New York cases

addresses two related but distinct questions: first, what ethical restrictions apply

when a party conducts an ex parte interview with an opponent’s former employee;

and second, what additional restrictions a court may impose on such interviews.4

4 For example, in Arons, the New York Court of Appeals considered the impact

As to the former question, Plaintiffs are correct that under Local Rule 83.3(a),

the New York Rules of Professional Conduct apply and the interpretations thereof set

forth in Muriel Siebert and its progeny need to be given due regard. If, for example,

Defendants were seeking sanctions or disqualification based on Plaintiffs’ counsel

having conducted an ex parte interview with one of Defendants’ former employees,

Muriel Siebert would be relevant. See, e.g., Bacote v. Riverbay Corp., No.

16CIV1599GHWAJP, 2017 WL 945103, at *8 (S.D.N.Y. Mar. 10, 2017) (applying

Muriel Siebert in denying motion to disqualify counsel).

But that is not the procedural posture before the Court. As Defendants

emphasized at oral argument (see Dkt. 160 at 17), they are seeking not retrospective

sanctions, but instead prospective procedural limitations. Local Rule 83.3(a) and the

New York Rules of Professional Conduct do not provide the rule of decision as to

whether this Court can impose discovery restrictions that go beyond those required

by the ethical rules. The Rules of Professional Conduct set the floor for the conduct of

attorneys. They do not impose a ceiling on a federal court’s ability to manage the

discovery process and to impose appropriate limitations in accordance with Rule

26(c).

Indeed, post-Muriel Siebert, multiple courts in this Circuit have acknowledged

that “a protective order [governing ex parte communications with an opponent’s

former employees] may issue where there exists a real risk that the former employees

of Article 31 of the New York Civil Practice Laws and Rules on ex parte discussions

with non-parties, including former employees. See 9 N.Y.3d at 409.

unintentionally would disclose privileged information or communications.” Judd v.

Take-Two Interactive Software, Inc., No. 07 CIV. 7932 (GEL), 2008 WL 906076, at *1

(S.D.N.Y. Apr. 3, 2008); see also Walker v. United States, No. 18CV2829ARRCLP,

2021 WL 4988151, at *4 (E.D.N.Y. Aug. 10, 2021); Arista Recs. LLC v. Lime Grp. LLC,

784 F. Supp. 2d 398, 416 (S.D.N.Y. 2011); In re SLM Corp. Sec. Litig., No. 08 CIV.

1029 (WHP), 2011 WL 611854, at *2 (S.D.N.Y. Feb. 15, 2011). This Court agrees, and

rejects Plaintiffs’ threshold contention that it lacks the authority, in an appropriate

case, to impose restrictions on ex parte communications with an opposing party’s

former employees.

III. Lack of Good Cause for the Requested Protective Order

Of course, that the Court has the authority to issue the requested protective

order does not necessarily mean that it ought to exercise that authority. See G-I

Holdings, Inc. v. Baron & Budd, 199 F.R.D. 529, 534 (S.D.N.Y. 2001) (“To say that a

protective order may issue, however, does not mean that it always should. Nor does

it answer the question of the appropriate nature and scope of such an order.”).

Consistent with the applicable legal standard, the Court must separately

assess whether there is good cause for entry of the requested protective order. In the

context of ex parte communications with an opposing party’s former employees,

courts have stated that the primary concern is the “risk that the former employees

unintentionally would disclose privileged information or communications.” Judd,

2008 WL 906076, at *1; see also Walker v. United States, 2021 WL 4988151, at *3

(explaining that the potential that there were privileged communications involving

the former employees “alone is insufficient to satisfy [the moving party’s] burden”).

The Court must take care to respect the “time-honored and decision-honored

principles . . . that counsel for all parties have a right to interview an adverse party’s

witnesses (the witness willing) in private[.]” Int’l Bus. Machines Corp. v. Edelstein,

526 F.2d 37, 42 (2d Cir. 1975). As such, “a general fear that privileged information

could be unwittingly divulged during an ex parte interview” will not satisfy the

moving party’s burden. In re SLM Corp., 2011 WL 611854, at *2.

Instead, the “party seeking a protective order in this situation has the burden

of establishing the essential elements of the privilege.” Judd, 2008 WL 906076, at *2.

This may require the moving party to “identify the individuals who may have had

access to privileged information, or describe the nature or extent of their exposure[.]”

Id. “However, generalized assertions that a former employee may have had exposure

to privileged information are insufficient to allow the Court to craft a meaningful

protective order.” Id.; see also In re SLM Corp., 2011 WL 611854, at *2 (“Sallie Mae

articulates a general fear that privileged information could be unwittingly divulged

during an ex parte interview. Without more, the Court cannot craft a meaningful

protective order and is not willing to further infringe on Plaintiffs’ ‘time-honored’

right to conduct ex parte interviews of witnesses.”).

Here, Defendants, as the moving party, have failed to satisfy their burden of

demonstrating a particularized risk that former employees will inadvertently disclose

privileged information if interviewed by Plaintiffs’ counsel. Plaintiffs’ counsel have

confirmed their awareness of the relevant ethical rules and confirmed that they will

abide by those rules in conducting any interviews with former employees. (Dkt. 169

at 2). The Court has no reason to doubt counsel’s representations in this regard. See

Judd, 2008 WL 906076, at *2 (“Here, there is no suggestion that the plaintiff’s

attorneys would not conduct any potential interviews themselves, and, the Court

must assume, until demonstrated otherwise, that all attorneys before this Court will

behave properly as officers of the Court.”); cf. GI-Holdings, 199 F.R.D. at 535

(granting request for protective order where the prospective “investigators [were]

themselves lay persons and, thus . . . in little better position than the interviewees to

assess whether privileged material [was] being disclosed”).

It is thus not the case that, absent the requested protective order, Plaintiffs’

counsel will be allowed to engage in “unfettered outreach to former employees” of

Defendants. (Dkt. 168 at 3). Plaintiffs’ counsel will be constrained by their ethical

obligations. As such:

In conducting any ex parte interviews, the Court expects that

[Plaintiffs’] attorneys would advise any interviewee of the attorneys’

representation and interest in the ongoing litigation, and would direct

the former employee to avoid disclosing privileged or confidential

information, not to answer any questions that would lead to the

disclosure of such information, and would ensure that the interviewee

understands those admonitions before conducting the interview.

Judd, 2008 WL 906076, at *2; see also Arista Recs., 784 F. Supp. 2d at 417 (instructing

counsel not to request privileged information from opposing party’s former employee

and “to stop [the former employee] from revealing privileged information, if Plaintiffs

become aware that he is doing so”); Muriel Siebert, 8 N.Y.3d at 512 (explaining that

“the right to conduct ex parte interviews” is not “a license for adversary counsel to

elicit privileged or confidential information from an opponent’s former employee” and

that “[c]ounsel must still conform to all applicable ethical standards when conducting

such interviews”).

Defendants have not identified specific employees (or even classes of

employees) who have been exposed to extensive amounts of privileged information,

but seek a blanket order that would apply to every one of their former employees.

Defendants note that they are involved in many different lawsuits, some of which

have overlapping subject matters with this case, and argue generally that “[m]any of

Defendants’ former employees had direct, repeated exposure to privileged work-

product and attorney-client communications concerning . . . topics at issue in

Plaintiffs’ discovery requests[.]” (Dkt. 168 at 2-3). A similar argument could be made

in virtually any litigation involving a large employer in a highly regulated industry,

yet courts have not found such generalized concerns sufficient to justify entry of a

protective order in this context. Defendants’ generalized concerns regarding potential

exposure to privileged information do not satisfy their burden in this context.

Defendants’ assertion that Plaintiffs’ discovery demands address “a wide

swath of . . . topics that will undoubtedly sweep in a significant amount of privileged

information” (id. at 2) does not change the analysis. As Plaintiffs have set forth in

their letter to the Court, one of the requests identified by Defendants is by its own

terms limited to “non-privileged” materials. (Dkt. 169 at 4; see Dkt. 168 at 16). The

other requests to which Defendants point seek communications with Congress and

other governmental entities, which are definitionally not within the scope of the

attorney-client privilege, and information about antitrust compliance training, which

is an unremarkable request in the context of this litigation. (See Dkt. 168 at 14-16).

These discovery demands are insufficient to demonstrate a real, particularized risk

that Defendants’ former employees would inadvertently reveal privileged

information during an ex parte interview by Plaintiffs’ counsel.

Defendants also argue that the protective order they seek is different in kind

from the protective orders that other courts have declined to issue, because they do

not seek (at this stage of the proceedings) to prohibit Plaintiffs’ counsel from engaging

in ex parte communications with their former employees, but only to impose a ten-

day notice period before such communications occur. (See Dkt. 160 at 28-29). They

contend that without such a notice period, they will be “left to guess which former

employees Plaintiffs may contact and to determine preemptively whether each such

individual may have been exposed to privileged information” and that this “is not

realistic.” (Dkt. 168 at 4).

This argument is not persuasive. It overlooks the fact that Defendants, as the

former employers of the individuals at issue, are well positioned in the first instance

to identify those who had extensive exposure to privileged information and are at a

particular risk (because of lack of sophistication or other specific factors) of

inadvertently disclosing such information during an ex parte interview. Defendants

are free to take appropriate measures to address their concerns directly with those

individuals. See In re SLM Corp., 2011 WL 611854, at *2 (“Of course, Sallie Mae

knows which of its former employees are likely to have privileged information

relevant to this case and can take appropriate prophylactic measures[.]”). There is

also nothing preventing Defendants from seeking a narrowly tailored protective order

aimed at such individuals.

Moreover, courts in this Circuit have acknowledged that where “a party

demands a list of persons whom opposing counsel has interviewed,” it “implicates core

policies behind the work product doctrine,” because such a request “is essentially

seeking . . . a roadmap of an adversary’s pretrial investigation[.]” Plumbers &

Pipefitters Loc. Union No. 630 Pension-Annuity Tr. Fund v. Arbitron, Inc., 278 F.R.D.

335, 343 n.8 (S.D.N.Y. 2011) (citing In re Initial Pub. Offering Sec. Litig., 220 F.R.D.

30, 35 (S.D.N.Y. 2003)); see also US Bank Nat. Ass’n v. PHL Variable Ins. Co., No. 12

CIV. 6811 CM JCF, 2013 WL 5495542, at *9 (S.D.N.Y. Oct. 3, 2013) (“[C]ourts in this

district have noted that the identities of people interviewed as part of counsel’s

investigation into the facts of the case have the potential to reveal counsel’s opinions,

thought processes, or strategies, and are therefore protected.”); In re SLM Corp., 2011

WL 611854, at *1 (S.D.N.Y. Feb. 15, 2011) (“the identities of interviewed witnesses

are protected work product and therefore witness names need not be disclosed”).

Requiring Plaintiffs’ counsel to reveal in advance which of Defendants’ former

employees it intends to interview would unduly impede Plaintiffs’ ability to develop

their case and to protect their counsel’s thought processes and strategies from

Defendants.

The Court acknowledges that in Lyondell-Citgo Ref., LP v. Petroleos de

Venezuela, S.A., No. 02 CIV. 0795 (CBM), 2003 WL 22990099 (S.D.N.Y. Dec. 19,

2003), the Court imposed a protocol requiring ten business days’ notice “by a party of

any proposed contact with respect to this litigation with any former employee of an

opposing party, its subsidiaries or predecessors.” Id. at *1. However, the Lyondell-

Citgo court did not explain how it determined that such a protocol was warranted

under Rule 26(c), and its decision thus is not persuasive on this point. And other

courts have declined to enter “a protective order or any other relief” when the moving

party relied only on generalized arguments regarding exposure to privileged

information. See Judd, 2008 WL 906076, at *2.

In sum, the Court finds the arguments and information presented by

Defendants insufficient to justify interfering with Plaintiffs’ “time-honored” right to

conduct ex parte interviews of potential witnesses, including Defendants’ former

employees. The Court therefore denies Defendants’ request for a protective order.

IV. Contact Information for Former Employees with Relevant

Information

The parties have requested the Court’s intervention with respect to a further,

related issue. Plaintiffs state that “[i]n their initial disclosures, Defendants asserted

that all former employees could be contacted only through counsel. Defendants have

thus far refused to provide home contact information for individuals listed on their

initial disclosures and in interrogatory responses.” (Dkt. 169 at 3). At oral argument,

the parties agreed that this issue was appropriately resolved by the Court at this

time. (Dkt. 160 at 43-44).5

In a federal civil matter, a party must produce:

[T]he name and, if known, the address and telephone number of each

individual likely to have discoverable information—along with the

subjects of that information—that the disclosing party may use to

support its claims or defenses, unless the use would be solely for

impeachment.

Fed. R. Civ. P. 26(a)(1)(A)(i). As the court in Judd explained:

[A] [d]efendant may . . . offer to provide its former employees with

counsel. However, defendant has no right to refuse to identify former

employees who may have discoverable information, and no independent

right to have its counsel present at those interviews. . . . If the defendant

knows that a former employee has retained counsel, then defendant may

provide plaintiff with the contact information for that counsel.

Otherwise, defendant must provide plaintiff with the last known

addresses of those former employees who have discoverable information.

Judd, 2008 WL 906076, at *3; see also New York v. Grand River Enters. Six Nations,

Ltd., No. 14-CV-910A(F), 2020 WL 7350335, at *4 (W.D.N.Y. Dec. 15, 2020) (“It is

generally recognized that providing counsel’s address in lieu of that of the disclosed

witness does not comply with Rule 26(a)(1) which requires the home addresses and

telephone numbers of disclosed witnesses who are employees of the disclosing

party.”).

5 Defense counsel noted that Defendants may have relevancy objections that

they wish to pursue with respect to certain former employees. As the Court

acknowledged (see Dkt. 160 at 44), relevance is always an issue that may be raised

during discovery, see also Fed. R. Civ. P. 26(b)(1). Disputes regarding relevancy may

be separately brought to the Court’s attention for resolution.

Having determined that entry of a protective order with respect to Defendants’

former employees is not warranted at this time, the Court agrees with Plaintiffs that

Defendants must provide contact information (to the extent it is known to

Defendants) for former employees within the scope of Rule 26(a)(1). Defendants are

directed to provide such information to Plaintiffs within ten business days of entry of

this Decision and Order.

CONCLUSION

For the foregoing reasons, Defendants’ request for entry of a protective order

requiring ten days’ advance notice before engaging in communications with an

opponent’s former employees is denied. This decision is without prejudice to

Defendants’ ability to seek a more narrowly tailored protective order addressed to

particularly identified individuals.

Defendants are directed to provide contact information for former employees

who fall within the scope of Rule 26(a)(1), to the extent it is known, within ten

business days of entry of this Decision and Order.

SO ORDERED.

COLLEEN D. HOLLAND

United States Magistrate Judge

Dated: August 12, 2026

Rochester, New York

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