UNITED STATES DISTRICT COURT                             
                    DISTRICT OF MINNESOTA                                



North American Science Associates, LLC,                                  
an Ohio limited liability company also  Case No. 24-cv-0287 (JWB/ECW)    
known as NAMSA, and NAMSA Holdco,                                        
LLC, a Delaware limited liability                                        
company,                                                                 

          Plaintiffs,                                                    

v.                                          ORDER                        

Michael Conforti, Pamela Conforti, and                                   
Phoenix Preclinical Labs, LLC, a                                         
Minnesota limited liability company,                                     

          Defendants.                                                    


    This case is before the Court on Plaintiffs North American Science Associates, 
LLC and NAMSA Holdco, LLC’s “Motion to Compel Discovery and Preclude      
Defendants from Asserting the Marital Communications Privilege as a Sword and a 
Sheild [sic].”  (Dkt. 126.)  For the reasons stated below, the Motion is denied. 
                      I.   BACKGROUND                                    
A.   Factual and Procedural Background                                    
    On February 2, 2024, Plaintiff North American Science Associates, LLC filed this 
action against Defendants Michael Conforti, Pamela Conforti, and Phoenix Preclinical 
Labs, LLC (collectively, “Defendants”) alleging misappropriation of trade secrets under 
the Defend Trade Secrets Act, 

 et seq.; breaches of confidentiality 
agreements; and commercial defamation, and also filed a Motion for a Temporary 
Restraining Order and Preliminary Injunction.  (See generally Dkts. 1, 23.)  On February 

5, 2024, U.S. District Judge Jerry W. Blackwell held a status conference (Dkt. 46), 
decided to treat that Motion “as a motion for a preliminary injunction, rather than a 
motion for a temporary restraining order” (see Dkt. 54 ¶ 1), and ordered “expedited 
discovery [relating to the preliminary injunction motion] that is limited to readily 
accessible documents and information necessary to resolve Plaintiff’s motion” (id. ¶ 2).   
    On February 28, 2024, the Court entered a scheduling order as to the expedited 

discovery and set deadlines relating to an amended motion for preliminary injunction.  
(Dkt. 80.)  The Order set an April 19, 2024 close of expedited discovery; an April 22, 
2024 deadline to seek relief concerning expedited discovery, and an April 26, 2024 
deadline for the amended motion for preliminary injunction.  (Id. at 2.)1  The parties later 
stipulated to the consolidation of North American Science Associates, LLC’s action 

against Defendants in this District with an action filed by North American Science 
Associates, LLC and NAMSA Holdco, LLC (collectively, “NAMSA”) against Defendant 
Michael Conforti in the District of Delaware (which had been transferred to this District) 
(Dkt. 81), and the Court consolidated the cases on March 7, 2024 (Dkt. 89). 
    At the Court’s direction, the parties filed an Amended Complaint reflecting the 

consolidation on March 13, 2024.  (Dkts. 89, 97.)  Defendants Pamela Conforti and 
Phoenix Preclinical Labs, LLC (“Phoenix Preclinical”) filed an Answer and 

1    Unless otherwise stated, page citations to the docket are to the CM/ECF 
pagination.                                                               
Counterclaims for defamation and unfair competition against North American Science 
Associates, LLC on April 3, 2024 (Dkt. 118) and Defendant Michael Conforti also filed 

his Answer on April 3, 2024 (Dkt. 119).  Defendants Pamela Conforti and Phoenix 
Preclinical filed an Answer and Amended Counterclaims on April 24, 2024.  (Dkt. 142.) 
    Meanwhile, the parties proceeded with expedited discovery and the Court resolved 
discovery disputes through informal dispute resolution (“IDR”) four times between 
February 28, 2024 and April 30, 2024.  (See Dkts. 88, 106, 121, 191.)  NAMSA filed the 
instant Motion on April 22, 2024.  (Dkt. 126.)  On April 26, 2024, NAMSA filed its 

Amended Motion for Preliminary Injunction (Dkt. 160) along with a Motion for 
Sanctions against Defendants Michael Conforti and Pamela Conforti for Evidence 
Spoliation (Dkt. 151).  Most recently, on May 29, 2024, NAMSA filed a Motion to 
Dismiss Defendants/Counterclaimants Pamela Conforti’s and Phoenix Preclinical Labs, 
LLC’s Amended Counterclaims.2  (Dkt. 279.)                                

    In the Motion at issue here, NAMSA moves to preclude Defendants from asserting 
the marital communications privilege as a sword and a shield.  (Dkt. 126.)  In its brief, 
NAMSA first argued that “the Confortis tried to selectively waive the marital 
communications privilege while simultaneously invoking it to conceal relevant 
communications and facts,” that is, the Confortis (who are married) are “using their 

marital communications as a sword when it suits them” but otherwise “raise the privilege 

2    Although NAMSA filed this Motion during the expedited discovery period and 
has since filed its Amended Motion for Preliminary Injunction (Dkt. 160), the issues 
raised by the Motion are not moot given that discovery is ongoing (see Dkt. 196 at 3 
(setting November 1, 2024 fact discovery deadline)).                      
as a shield.”  (Dkt. 128 at 3, 14; see generally 

.)  NAMSA’s second argument 
was that Defendants waived any potentially applicable marital communications privilege 

over communications made through their business email accounts, specifically their sent 
and received emails while working for NAMSA’s predecessor American Preclinical 
Services (“APS”), which was founded by the Confortis and purchased by NAMSA in 
2021; emails sent and received via IT systems and business accounts at the Confortis’ 
“separate business, FlexSchema”; and emails sent and received over Pamela Conforti’s 
Phoenix Preclinical account.  (Id. at 2, 4-5, 19-22.)  Third, NAMSA asked the Court to 

recognize and apply “a ‘business affairs’ exception to the narrowly construed marital 
communications privilege.”  (Id. at 2, 22-24.)  NAMSA also proposed a set of search 
terms in an appendix to its brief and asked the Court to require Defendants to run those 
terms and produce documents that hit on those terms.  (Id. at 19, 24, 27-28.) 
    Defendants oppose the Motion.  (See Dkt. 188.)  Defendants argue they have 

properly invoked the privilege within the scope of a waiver agreed to by NAMSA and 
they have not used the privilege as a sword and a shield.  (Id. at 18-21.)  Defendants also 
argue that their APS emails dated from before NAMSA acquired APS in 2021 and their 
FlexSchema emails are not relevant, and that they did not waive privilege by 
communicating using email accounts belonging to companies they owned, founded, and 

operated.  (Id. at 21-27.)  Finally, Defendants argue that “[t]he business-affairs exception 
is not recognized in Minnesota, the Eighth Circuit, or the District of Minnesota,” the 
Court should not recognize it here, and even if the Court did recognize it, NAMSA has 
not shown the exception applies to the communications at issue.  (Id. at 27-31.) 
    The Court held a hearing on the Motion on May 9, 2024.  (Dkt. 202.)  This hearing 
clarified the issues raised by the Motion, and the Court will address the parties’ oral 

argument in the discussion below.  However, before turning to the specific arguments, the 
Court highlights three additional facts in this section.                  
    First, on April 5, 2024, Defendants Michael Conforti and Pamela Conforti agreed 
to waive the marital communications privilege (also referred to as the “spousal privilege” 
or “marital privilege”) for three categories of communications between them: those 
(a) “regarding alleged ‘spoliation’ of evidence up to and including the date and time it 

allegedly occurred with respect to that specific alleged ‘spoliation’”; (b) “regarding the 
funding, founding, creation, organization, and operation of Phoenix [Preclinical]”; and 
(c) “the alleged taking of NAMSA’s proprietary information or trade secrets, or the 
alleged exchange of that proprietary information or trade secrets between Ms. Conforti 
and Dr. Conforti” in exchange for NAMSA’s agreement that this waiver, “standing alone, 

does not constitute a broader waiver of the spousal privilege generally.”  (Dkt. 130-3 at 5-
6; Dkt. 130-7 at 2.)  The Court refers to the parties’ agreement as the “Waiver 
Agreement.”  When NAMSA entered into the Waiver Agreement, it also “reserve[d] its 
right to challenge all assertions of privilege, including spousal privilege.”  (Dkt. 130-7 at 
2.)                                                                       

    Second, Defendants have represented that they withheld documents consistent 
with the scope of this Waiver Agreement.  (Dkt. 188 at 13 (“Ms. Conforti and Phoenix 
Preclinical did not withhold and log otherwise maritally privileged documents that fall 
within the three enumerated categories of communications central to NAMSA’s claims in 
this dispute.”); 

 (“Dr. Conforti did not withhold and log otherwise maritally-
privileged documents that fall within the three enumerated categories of communications 

central to NAMSA’s claims in this dispute.”).)  As NAMSA relied on Defendants’ 
privilege logs to support the Motion, the Court will clarify certain aspects of the privilege 
logs.  Pamela Conforti and Phoenix Preclinical produced two privilege logs in this case: a 
“logic image privilege log,” which they state contained logged documents “regardless of 
whether they were responsive to NAMSA’s document requests” because the logic image 
“was produced irrespective of the relevancy of the contents” due to the demands of 

expedited discovery.  (Dkt. 188 at 11-12.)  This logic image privilege log is attached as 
Exhibit 7 to the Declaration of Shannon Lankenau (“Lankenau Declaration”).  (Dkt. 130-
4.)  They later produced a “traditional privilege log,” which identified Pamela Conforti 
and Phoenix Preclinical’s “responsive and privileged documents.”  (Dkt. 188 at 12.)  This 
traditional privilege log is attached as Exhibit 8 to the Lankenau Declaration.  (Dkt. 130-

5.)  Pamela Conforti and Phoenix Preclinical stated: “if a document is not on the 
‘Traditional Privilege Log’ it is not responsive to NAMSA’s First Set of Requests for 
Production.”  (Dkt. 188 at 12.)                                           
    Michael Conforti produced only a “traditional privilege log.”  (Id. at 13-14.)  His 
traditional privilege log is attached as Exhibit 9 to the Lankenau Declaration.  (Dkt. 130-

6.)  For purposes of this Motion, the Court focuses on the traditional privilege logs for 
two reasons.  First, Defendants have represented that those logs identified documents that 
are responsive to NAMSA’s discovery and were withheld on privilege grounds.  Second, 
NAMSA has not offered any evidence calling into question Pamela Conforti and Phoenix 
Preclinical’s distinction between their logic image privilege log and their traditional 
privilege log.  Although NAMSA commented on the number of entries and the 

sufficiency of the privilege logs (see Dkt. 128 at 7-8), it did not seek relief with respect to 
the logs’ sufficiency or specific documents (other than those discussed in this Order) 
when NAMSA filed its Motion.  Then, with the Court’s permission, NAMSA did make 
post-hearing arguments regarding Defendants’ amended traditional privilege logs (Dkts. 
213, 214), to which Defendants responded (Dkt. 278).  The Court addresses those 
arguments in Section III.E, infra.                                        

    Third and finally, there are several important points regarding the APS, 
FlexSchema, and Phoenix Preclinical email accounts.  Counsel for Pamela Conforti and 
Phoenix Preclinical represented to the Court at the May 9, 2024 hearing that they were 
not withholding any responsive documents from Phoenix Preclinical email accounts on 
the basis of marital privilege.  (Dkt. 202 at 66:13-21.)3  Counsel also represented that no 

responsive documents were withheld from the FlexSchema email accounts on the basis of 
marital privilege.  (Id. at 62:12-63:20.)  Finally, NAMSA confirmed at the hearing that 
NAMSA owns and possesses the APS email server and has already searched that email 
server for documents, including emails dating before NAMSA’s acquisition of APS.  (Id. 
at 95:24-96:18.)                                                          





3    Citations to transcripts are in transcript page:line format.         
                    II.  LEGAL STANDARD                                  
    As a starting point, discovery in civil cases is limited to nonprivileged matters that 

are relevant to any party’s claim or defense and proportional to the needs of the case.  
Fed. R. Civ. P. 26(b)(1).  Rule 26(b) further limits the scope to discovery that is: 
    proportional to the needs of the case, considering the importance of the issues 
    at stake in the action, the amount in controversy, the parties’ relative access 
    to  relevant  information,  the  parties’  resources,  the  importance  of  the 
    discovery in resolving the issues, and whether the burden or expense of the 
    proposed discovery outweighs its likely benefit.                     

                                                                       
    As to the law governing the marital communications privilege, the parties disagree 
as to whether federal or state law controls the issues raised by this Motion.  NAMSA 
asserts claims under federal and state law against Defendants.  “Federal common law 
applies to the issue of privilege where subject matter jurisdiction is premised on a federal 
question, whereas state law applies to the issue of the attorney-client privilege when the 
subject matter jurisdiction is based on diversity.”  Sanimax USA, LLC v. City of S. St. 
Paul, No. 20-CV-1210 SRN/ECW, 

, at *7 n.2 (D. Minn. Oct. 18, 
2021) (citing Fed. R. Evid. 501; Simon v. G.D. Searle & Co., 

 (8th 
Cir.), cert. denied, 

 (1987); Ewald v. Royal Norwegian Embassy, No. 11-
CV-2116 SRN/SER, 

, at *5 (D. Minn. Apr. 1, 2014)), modified sub 
nom., 

 (D. Minn. Dec. 6, 2021).  “Where there are both state and 
federal claims, if the evidence sought is only relevant to the state claims, then state law 
applies; however, if the evidence sought is relevant to both the state and federal claims, 
then federal common law applies.”  Sanimax, 

, at *7 n.2 (citations 
omitted).  NAMSA argues that federal law applies because the scope of the Confortis’ 
waiver includes documents relating to NAMSA’s federal trade secret claims.  (Dkt. 128 

at 12-13; Dkt. 202 at 42:21-25.)  Defendants argue that state law applies because the 
documents implicated by the Motion “are exclusively related to Dr. Conforti’s 
involvement in Phoenix Preclinical, not to any alleged trade secret violations”—but also 
says the distinction between federal and Minnesota law does not matter.  (Dkt. 202 at 
69:4-24; Dkt. 188 at 16-18.)                                              
    Under federal common law, the marital communications privilege protects 

“confidential communications arising from the marital relationship.”  See United States v. 
White Owl, 

 (8th Cir. 2022) (quoting United States v. Allery, 

 (8th Cir. 1975)).  “The basis of the immunity given to communications 
between [spouses] is the protection of marital confidences, regarded as so essential to the 
preservation of the marriage relationship as to outweigh the disadvantages to the 

administration of justice which the privilege entails.”  Wolfle v. United States, 

 (1934) (citations omitted).  Under Minnesota law, the marital communications 
privilege applies “to any communication made by one to the other during the marriage,” 
subject to exceptions not relevant here.  

(a).  Notwithstanding 
the parties’ dispute over whether federal or state law applies, the Court need not decide 

this issue because the Court would reach the same conclusion as to the Motion under 
federal or Minnesota law.                                                 
    As to a party’s reliance on an evidentiary privilege such as the marital 
communications privilege, principles of fairness preclude a party “from simultaneously 
using the privilege as both a sword and a shield; that is, it prevents the inequitable result 
of a party disclosing favorable communications while asserting the privilege as to less 

favorable ones.”  In re Seagate Tech., LLC, 

, 1372 (Fed. Cir. 2007) 
(attorney client privilege), abrogated on other grounds by Halo Elecs., Inc. v. Pulse 
Elecs., Inc., 

 (2016); see also United States v. Workman, 

 
(8th Cir. 1998) (holding that “[t]he attorney client privilege cannot be used as both a 
shield and a sword”).  Under Minnesota law:                               

    The  owner  of  the  privilege  of  preventing  the disclosure of  confidential 
    communications cannot, after testifying to or about them, or to or about any 
    substantial part of them, without claiming his privilege, or objecting to testify 
    on the ground of his privilege, invoke that privilege to prevent other parties 
    to the communications from testifying to them. He cannot by his silence lay 
    down the shield of his privilege, and assail another with the sword of his own 
    testimony to the privileged communications, and, when his adversary essays 
    to defend himself, or to attack him by his version of the testimony, or by the 
    testimony of other parties or witnesses to such communications, again seize 
    the shield of his privilege and shut out all testimony as to the confidential 
    communications but his own. He has waived his privilege and “such waiver 
    is in no sense contrary to public policy; indeed, it is in the interest of truth 
    and justice.”                                                        

Swanson v. Domning, 

 (Minn. 1957) (quoting Kelly v. Cummens, 

 (Iowa 1909)).                                           
                        III.  ANALYSIS                                   
    The Court first addresses NAMSA’s sword/shield argument, including whether 
NAMSA is estopped from making this argument based on the Waiver Agreement and 
whether NAMSA has identified specific instances where Defendants’ conduct should 
result in a finding of waiver.  The Court then addresses NAMSA’s arguments relating to 
communications sent on APS, FlexSchema, and Phoenix Preclinical servers, including 
those relating to the Confortis’ reasonable expectation of privacy in such communications 
and whether the Court should adopt the “business affairs” exception to the marital 

communications privilege.                                                 
A.   NAMSA Cannot Seek a Broader Waiver Based Only on the Waiver          
    Agreement                                                            
    The Court begins with the threshold issue of whether, as Defendants argue, 
judicial estoppel preludes NAMSA’s sword/shield argument.  (See Dkt. 188 at 18.)  “The 
doctrine of judicial estoppel prohibits a party from taking inconsistent positions in the 
same or related litigation.”  United States ex rel. Gebert v. Transp. Admin. Servs., 

 (8th Cir. 2001) (quoting Hossaini v. W. Mo. Med. Ctr., 

 (8th Cir. 1998)).                                                    

    NAMSA’s brief led with the following sword/shield argument:          
    First off, there is no real question that Defendants’ waiver is partial and 
    selective. They waived the privilege on three narrow points and no others, 
    while invoking it to withhold thousands of potentially relevant documents 
    and testimony. First, they waived it as to “[a]ny spousal communication 
    regarding alleged ‘spoliation’ of evidence up to and including the date and 
    time it allegedly occurred with respect to that specific alleged ‘spoliation.’” 
    This would leave the Confortis free to claim they never discussed or planned 
    the destruction of troves of relevant evidence before it happened, while 
    simultaneously concealing all of their communications about such serious 
    conduct afterwards. Second, they waived the privilege as to “[a]ny spousal 
    communications regarding the funding, founding, creation, organization, and 
    operation of Phoenix.” This would leave them free to claim they purportedly 
    never “substantively” communicated about those five specific topics, while 
    concealing all communications about other aspects of this competitive, not-
    yet-operational  business  (e.g.,  planning,  promoting,  or  supporting  it,  or 
    interacting with other businesses or potential partners about it). Finally, 
    Defendants  waived  their  privilege  as to “[a]ny  spousal  communications 
    regarding the alleged taking of NAMSA’s proprietary information or trade 
    secrets, or the alleged exchange of that proprietary information or trade 
    secrets  between  Ms.  Conforti  and  Dr.  Conforti.”  This  waiver  on 
    communications  about  “taking”  or  “exchanging”  NAMSA’s  proprietary 
    information would still permit Defendants to conceal communications about 
    other illicit uses of proprietary information, such as copying, exploiting, 
    disclosing, maintaining, deleting, or otherwise interacting with it.” 

    Courts in the Eighth Circuit reject litigants’ attempts to selectively waive 
    other privileges, and these cases are highly instructive. . . . The same principle 
    applies  here:  the  Confortis  needed  to choose  a  single  course  of  action, 
    waiving any applicable privilege over their communications about the facts 
    of this lawsuit, or invoking it and staying silent on those topics. The law does 
    not entitle them to do both.                                         

(Dkt. 128 at 15-16.)4  Based on these arguments, the Court reads NAMSA’s brief as 
seeking a broader waiver because NAMSA viewed the scope of Defendants’ agreed-to 
waiver in the Waiver Agreement as selective and unfair.                   
    Further confirming NAMSA’s focus on the Waiver Agreement as a basis for a 
broader waiver, NAMSA also argued:                                        
    The Confortis have attempted to selectively waive the privilege over specific 
    and limited communications about (1) the spoliation of evidence, (2) the 
    newly created [contract research organization] Phoenix, and (3) their acts of 
    misappropriation. Partially waiving the privilege on these select topics has 
    enabled them deny [sic] having had any real interaction with one another 
    about them, while concealing thousands of communications that may shed 
    light on those claims, and refusing to testify about the topics more generally.  

    This sword-and-shield strategy is improper. NAMSA should not be forced to 
    accept Defendants’ bald, self-serving assertions at face value, such as their 
    claims that Dr. Conforti has had no meaningful or substantive involvement 
    in the new competitive [contract research organization]. NAMSA is entitled 
    to discover the withheld communications about such key issues in the case 
    and question the witnesses on them without restriction. Respectfully, the 
    Court should reject Defendants’ attempts at selective waiver and order the 

4    NAMSA acknowledged (in a footnote) that it “was willing to agree that 
Defendants’ waivers on certain topics ‘standing alone, d[id] not constitute a broader 
waiver of the spousal privilege generally.’”  (Id. at 7 n.5.)  In that footnote, NAMSA 
noted its reservation of rights “to challenge all assertions of privilege, including spousal 
privilege, as it is doing in this motion.”  (Id.)                         
    production of all documents and communications improperly withheld under 
    the marital communications privilege that relate to the subject matter of 
    Defendants’ categorial “selective” waiver or to the issues in this lawsuit 
    generally so that NAMSA can assess the veracity of Defendants’ conclusory 
    claims and follow up with depositions if it deems necessary.         

(Id. at 18.)                                                              
    Based on these and similar passages, NAMSA’s primary argument in its brief 
appears to be that Defendants’ waiver on the “three narrow points” requires a finding of 
waiver over all communications protected by the marital privilege.  If this argument is 
what NAMSA intended, NAMSA’s conduct would constitute a troubling violation of the 
Waiver Agreement.  Indeed, Defendants raised this concern in their brief, invoking 
judicial estoppel to preclude NAMSA from relying on the Waiver Agreement to seek a 
broader waiver.  (Dkt. 188 at 18.)                                        
    Nevertheless, NAMSA at times during the hearing still appeared to be relying on 
the Waiver Agreement to seek a broader waiver, while simultaneously denying it was 
violating that Agreement.  For example, NAMSA apparently disagreed with the date 
Defendants selected as the cut-off for waiver as to the alleged spoliation, and therefore 
took the position that it could seek a broader waiver (notwithstanding the Waiver 
Agreement) because the way the testimony came in was not what NAMSA expected.  
(See Dkt. 202 at 10:12-11:13 (arguing that date cut-off for spoliation was “not in the 

spirit of what’s permitted by selective waiver”); id. at 12:6-12 (arguing that it did not 
violate the Waiver Agreement to contend that the Confortis’ waiver up to the date of the 
alleged spoliation required waiver after that date because NAMSA does not believe “the 
waiver stood alone, and what I mean by that is that we didn’t expect, we didn’t 
understand and, frankly, couldn’t have predicted how the testimony would come out on 
some topics and then be halted”).)                                        

    The Court rejects NAMSA’s broad claims of sword/shield-based waiver.  
NAMSA agreed that it would not rely on Defendants’ waiver of the spousal privilege as 
to three topics, “standing alone,” to seek a broader waiver of the privilege.  (Dkt. 130-10 
at 2.)  To the extent NAMSA seeks a finding of broader waiver based on Defendants’ 
waiver as to those three points—and nothing more—NAMSA is violating the Waiver 
Agreement.  However, the Court is not persuaded that the doctrine of judicial estoppel 

applies, as “[t]he underlying purpose [of judicial estoppel] is to protect the judicial 
process.”  Amtrust Inc. v. Larson, 

 (8th Cir. 2004); see also 

 (“The 
doctrine of judicial estoppel prevents a party from taking a position during litigation 
which is contrary to one taken in a prior judicial or quasi-judicial proceeding.”).  As 
noted in Wright & Miller, “[s]everal cases distinguish the equitable estoppel theory from 

a broader theory of judicial estoppel by noting that equitable estoppel requires reliance by 
a party, while judicial estoppel requires reliance by a tribunal.”  18B Charles Alan Wright 
& Arthur R. Miller, Federal Practice and Procedure § 4477.2 (3d ed.).  Here, no court has 
previously relied on the Waiver Agreement, nor was it previously presented to the Court 
(or any other court), calling into question the applicability of judicial estoppel.   

    But whether judicial estoppel applies does not matter, because the Court need not 
rely on that doctrine to reject any attempt by NAMSA to use Defendants’ waiver on the 
three agreed-upon points to seek a broader scope of waiver.  The Court need only hold 
NAMSA to the Waiver Agreement.  “It is essential to our system of justice that lawyers 
and litigants, above all, abide by their agreements and live up to their own expectations.”  
In re Bristol-Myers Squibb Sec. Litig., 

 (D.N.J. 2002).  The Court 

expects NAMSA to abide by the Waiver Agreement and, if NAMSA will not do so of its 
own volition, the Court will enforce that agreement, especially considering the interests 
protected by the marital privilege.5  Consequently, the Court declines to find a broad 
waiver based on Defendants’ decision to waive the marital privilege as to the three points 
as set forth in the Waiver Agreement.  Doing so would unfairly reward NAMSA for 
making (and then breaking) the Waiver Agreement.  To the extent NAMSA seeks a 

broader waiver because it is unhappy with the results or scope of the Waiver Agreement, 
that makes no difference.  The Waiver Agreement was not conditioned on NAMSA’s 
satisfaction with its results and NAMSA never sought a different scope, including a 
different cut-off date for the waiver as to alleged spoliation, before making the Waiver 
Agreement.  The Court rejects any attempt by NAMSA to walk back the Waiver 

Agreement.6                                                               

5    Because NAMSA entered into the Waiver Agreement, none of its selective waiver 
cases are persuasive to the extent NAMSA seeks any relief that would undermine that 
Agreement.                                                                

6    Relying on interrogatory responses and certain testimony, NAMSA argues that 
statements that Michael Conforti had “no real involvement” and “was not involved in any 
substantive way” with the creation, formation, establishment, or business operations of 
Phoenix Preclinical, or its design, operations, creating any business relevant materials 
including controlled documents, financing, working with vendors or suppliers, etc., are a 
waiver of the marital communications privilege.  (See Dkt. 128 at 3 & n.1.)  NAMSA 
then later described the Confortis as stating their “communications” were not 
“substantive” or “real.”  (Id. at 14 (“It would be manifestly unfair to permit Defendants to 
continue using their marital communications as a sword when it suits them (e.g., 
B.   NAMSA’s Deposition-Based Sword/Shield Arguments                      
    The Court turns to NAMSA’s second sword/shield argument, which is that the 

parties disagree as to the scope of the Waiver Agreement.  (Dkt. 202 at 9:3-20 (stating 
that NAMSA’s sword/shield arguments were based on “an interpretation of those topics” 
while its email communications arguments were based on “broader waivers”).)  NAMSA 
identified specific instances of instructions not to answer during the Confortis’ 
depositions and assertions of privilege over certain exhibits to support this argument.  
(Dkt. 128 at 8-12 (describing specific instances).)  Defendants argue that waiver should 

not be found because these instances were simply misunderstandings that often occur 
during depositions and that, to the extent Defendants later withdrew assertions of 
privilege as to certain documents that NAMSA tried to use during depositions, they 
already agreed to reopen the deposition or offer a declaration as to those exhibits.  (Dkt. 
188 at 18-21, 26-27.)                                                     





describing their communications as limited, not ‘substantive’ or ‘real’ . . . .”); id. at 15 
(“This would leave them free to claim they purportedly never ‘substantively’ 
communicated about those five specific topics, while concealing all communications 
about other aspects of this competitive, not yet operational business . . . .”) (emphases 
removed).)  NAMSA’s latter statements are somewhat imprecise.  There is a distinction 
between “involvement” to the extent it constitutes conduct outside of communications, 
such as analyzing potential sites (e.g., Dkt. 133 at 141:1-5), forming an entity, creating 
materials, etc., and communications between spouses about such conduct.  For purposes 
of this Motion, the Court focuses on the Confortis’ communications and their testimony 
about those communications, because it is communications that are protected by the 
privilege.                                                                
    1.   Pamela Conforti’s Deposition and Exhibits                       
    The Court begins with Pamela Conforti’s deposition.  As background, Pamela 

Conforti asserts she became interested in becoming a landlord in the spring of 2023 and 
formed a single member LLC, Phoenix Investments, in her own name to do so, 
eventually purchasing a building in Coon Rapids, Minnesota.  (Dkt. 133 at 122:19-24, 
125:22-126:10.)  Pamela Conforti testified that Phoenix Investments purchased the Coon 
Rapids building before she decided to form Phoenix Preclinical.  (Id. at 123:4-8, 125:1-
12.)  She incorporated Phoenix Preclinical in September 2023, apparently after a meeting 

with NAMSA in August 2023 “where she felt slighted by NAMSA”; demolition work 
began on the Phoenix Investments building in October 2023; and construction began on 
the building in January 2024.  (Id. at 126:19-127:7; see id. Dkt. 202 at 73:3-8 (counsel 
describing August 2023 meeting).)                                         
    When asked what role, if any, Michael Conforti played in her consideration and 

selection of potential facilities or properties to purchase, Pamela Conforti testified that his 
only role was as “a spouse sounding board” and that “he was not influencing [her] or 
participating in the analysis or any type of the decision-making.”  (Dkt. 133 at 140:7-
141:4.)  After that testimony, Pamela Conforti’s counsel set forth the scope of the Waiver 
Agreement on the record and, when NAMSA’s counsel asked how Michael Conforti 

acted as a “sounding board,” Pamela Conforti’s counsel instructed her not to answer if 
she thought the answer fell outside of the funding, founding, creation, organization, and 
operation of Phoenix Preclinical.  (Id. at 141:9-146:8.)  Ms. Conforti declined to answer 
because the question “relate[d] to the purchase of the building as it is outside the 
founding of and operation of Phoenix, which is defined as Phoenix Preclinical Labs.”  
(Id. at 146:9-13.)  NAMSA now argues that these topics were “well within the scope of 

the waiver that the defendants had offered” but NAMSA was not able to explore them 
because Ms. Conforti would not answer the questions and counsel instructed her not to 
answer them.  (Dkt. 202 at 14:2-17; see also Dkt. 128 at 8-9 (taking issue with Ms. 
Conforti’s “unilateral assessment that the questioning fell outside the narrow scope of her 
selective waiver”).)  According to NAMSA, Pamela Conforti’s testimony about the 
selection of the facility purchased by Phoenix Investments, her knowledge that it could be 

equipped for a life sciences laboratory that would compete with NAMSA, and her use of 
Michael Conforti as a non-influential sounding board falls within the scope of paragraphs 
2 and 3 of the Waiver Agreement.  (Dkt. 202 at 16:20-17:18.)              
    Paragraph 2 of the Waiver Agreement is a waiver of “[a]ny spousal    
communications regarding the funding, founding, creation, organization, and operation of 

Phoenix Preclinical.”  (Dkt. 130-3 at 5.)  At the hearing, NAMSA acknowledged that 
paragraph 2 of the Waiver Agreement did not encompass Phoenix Investments.  (Dkt. 
202 at 12:21-13:9.)  Nevertheless, NAMSA asserts that the questions at issue “relate[d] to 
things such as the operation of Phoenix Preclinical Labs at that site.”  (Id. at 15:1-2.)  
NAMSA contends that “the facts are so intertwined as to be inseparable” such that the 

scope of paragraph 2 “includes any steps the defendants took related to creating or 
organizing or operating Phoenix, including steps they may have taken through other 
entities to provide the very specialized facilities that Phoenix Preclinical Laboratories 
would need.”  (Id. at 18:1-20, 20:9-15.)                                  
    NAMSA’s argument ignores the difference between Phoenix Investments and 
Phoenix Preclinical, the unrebutted testimony that Pamela Conforti started Phoenix 

Investments and began looking at properties before she decided to form Phoenix 
Preclinical, and the distinction between purchasing a property for use as landlord and 
starting the Phoenix Preclinical contract research organization.  The link between 
conversations about Pamela Conforti’s selection of a facility to purchase so Phoenix 
Investments could be a landlord and Pamela Conforti’s decision months later to start 
Phoenix Preclinical is simply too attenuated for the Court to find conversations about 

Phoenix Investment’s facility selection fall within the scope of paragraph 2.  Doing so 
would eviscerate that paragraph’s plain language.  The Court finds that Pamela Conforti’s 
use of Michael Conforti as a “sounding board” with respect to the selection of a facility 
for Phoenix Investment to lease before she decided to form Phoenix Preclinical does not 
fall within the scope of paragraph 2.                                     

    NAMSA also asserted that Michael Conforti’s use as a “sounding board” falls 
within the scope of paragraph 3 of the agreed-upon waiver.  (Dkt. 202 at 16:17-18.)  
Paragraph 3 is a waiver as to “[a]ny spousal communications regarding the alleged taking 
of NAMSA’s proprietary information or trade secrets, or the alleged exchange of that 
proprietary information or trade secrets between Ms. Conforti and Dr. Conforti.”  

However, NAMSA at times described the discussions at issue regarding Phoenix 
Investments’ selection of a building as relating to “allegations about violations of 
noncompetes”—not the taking or exchange of trade secrets or proprietary information.  
(Id. at 13:17-24.)  Noncompete agreements were not within the scope of paragraph 3.7  
And NAMSA has not articulated how communications around Phoenix Investment’s 

purchase of a building with the possibility of leasing it (even to a NAMSA competitor) 
implicates communications around the taking or exchange of NAMSA’s proprietary 
information or trade secrets.  The Court denies the Motion insofar as it seeks relief with 
respect to the Confortis’ discussions about Phoenix Investments’ selection of a facility to 
purchase.                                                                 
    The second issue raised with respect to Pamela Conforti’s deposition is counsel’s 

assertions of privilege over exhibits PC10 and PC11.  (Dkt. 128 at 10-12; see also Dkt. 
202 at 29:24-30:25.)  During Pamela Conforti’s deposition, NAMSA attempted to 
introduce exhibits PC10 and PC11, which were email communications between the 
Confortis using their NAMSA email addresses.  (Dkt. 133 at 69:6-71:20, 73:23-76:6.)  
Defendants’ counsel objected and instructed Pamela Conforti not to answer questions 

about these exhibits based on the marital communications privilege.  (Id.)  Counsel later 
objected to the use of PC10 and PC11 during Michael Conforti’s deposition.  (Dkt. 133-1 
at 47:15-48:17.)  However, Defendants later withdrew their privilege assertions over 
those specific exhibits and agreed to produce them.  (Dkt. 202 at 29:24-30:19.)  During 


7    The Court does not understand NAMSA to have argued that violations of the 
noncompete clauses were included in paragraph 3.  In any event, given NAMSA’s 
arguments that the claims for misappropriation of proprietary information and trade 
secrets relate to federal law (Dkt. 202 at 42:21-25), and while the “noncompete 
obligations” are based on contracts and state law (id. at 19:12-14; see also Dkt. 97 ¶ 91 
(identifying confidentiality agreements as containing non-competition language)), the 
Court declines to import allegations relating to violation of noncompete clauses into 
paragraph 3.                                                              
the hearing, NAMSA stated that the relief it seeks is “to be able to use them without 
restriction in a further deposition.”  (Id. at 30:20-25.)                 

    It appears NAMSA seeks relief to which Defendants had already agreed, as 
Defendants stated in their brief:                                         
    To the extent NAMSA needs to further depose Ms. Conforti regarding the 
    NAMSA emails between Ms. Conforti and Dr. Conforti that Ms. Conforti 
    and  Phoenix  Preclinical  agreed  to  produce,  Ms.  Conforti  has  already 
    indicated  a  willingness  [sic]  reopening  the  deposition  on  the  specific 
    documents at issue, subject to the remaining time limitations expressed a 
    willingness to consider an alternate route, such as a declaration in lieu of 
    testimony, making court intervention unripe and unnecessary.         

(Dkt. 188 at 27 (citing Dkt. 190-1).)  Dr. Conforti’s counsel also agreed to reopening his 
deposition.  (Dkt. 190-1 at 3.)                                           
    Defendants made this offer of reopening the Confortis’ depositions on April 22, 
2024.  (Dkt. 190-1 at 3.)  Given that Defendants offered to reopen the Confortis’ 
depositions on April 22, 2024, and NAMSA had not taken Defendants up on that offer as 
of the May 9, 2024 hearing on this Motion, it does not appear that NAMSA needs to 
reopen depositions for purposes of their Amended Motion for Preliminary Injunction.  
Consequently, to the extent any relief is required, NAMSA may use PC10 and PC11 at 
future depositions in this case, subject to any restrictions imposed by the Protective 
Order, but the Court will not order reopening of Pamela Conforti’s or Michael Conforti’s 
deposition solely for purposes of examining them regarding PC10 and PC11.  The 
Motion is denied as moot insofar as NAMSA seeks to be able to use PC10 and PC11 at 
depositions and denied to the extent NAMSA seeks reopening of the Confortis’ expedited 
discovery depositions.                                                    
    2.   Michael Conforti’s Deposition and Exhibits                      
    The Court turns to Michael Conforti’s deposition.  NAMSA argues that 

inconsistencies in Michael Conforti’s testimony and objections made to certain exhibits 
during his deposition require a finding of waiver.  (Dkt. 128 at 9-10.)  The Court first 
addresses the alleged inconsistent testimony.  NAMSA’s counsel clarified at the hearing 
what testimony NAMSA believes gives rise to the waiver:                   
    So according to his testimony under cross-examination, [Michael Conforti] 
    had communications about Phoenix Preclinical Laboratories with his wife in 
    these variety of different ways.                                     

    But  then  when  we  asked  him  specifically  about  what  we  thought  was 
    undoubtedly  the  subject  of  the  waiver,  asking  him  whether  he  had 
    communicated in a privileged setting about creating the business, Phoenix 
    Preclinical Labs, he was instructed not to answer that question. And that 
    struck us. That’s, again, at Lankenau Exhibit 2. It was towards the end of the 
    day. It was at page 198. And the question was designed to focus on the 
    subject matter that we thought was clearly the topic of the waiver, but he was 
    instructed not to answer.                                            

(Dkt. 202 at 21:12-25.)                                                   
    The Court pointed out to NAMSA’s counsel that Michael Conforti had answered 
the question: “Is it your position that in all of the communications you’ve had with Ms. 
Conforti that you have withheld in this action, there are no communications about the 
funding, founding, creation, organization, or operation of Phoenix?” with “Correct.”  (Id. 
at 22:1-8.)  NAMSA acknowledged that fact and responded: “[W]e’ve been unable to test 
that without what we think should be the full scope of the waiver and to look at 
documents that we suspect relate to exactly those facts” and: “[T]he testimony was 
inconsistent.  On the one hand, he said he had these communications.  Later he denied it.  
And then, as you just read into the record, he also said he never had those 
communications.”  (Id. at 22:9-22.)                                       

    The Court reproduces the relevant portions of the transcript of Michael Conforti’s 
deposition below.                                                         
    Q.  You communicate with your wife, Ms. Conforti, by text from time to 
    time, I imagine?                                                     
    A.  Yes.                                                             
    Q.  And you delete her texts as well?                                
    A.  Yes.                                                             
    Q.  What are the ways in which you communicate with Ms. Conforti, if at 
    all, about Phoenix Preclinical Labs?                                 
    MR. MAGARIAN: As long as we’re talking about the funding, founding,  
    creation, organization or operation of Phoenix, I don’t have an objection. 
    THE WITNESS: Can you repeat those? Sorry. I know you’ve repeated them 
    a thousand times, but give them to me again.                         
    MR. MAGARIAN: Sure.                                                  
    MR. MADEL: Funding, founding, creation, organization and operation. This 
    is our waiver. Is it okay if I show it to him?                       
    MR. GROSS: You can show him. I’m going to ask to see it after you do. 
    (Crosstalk.)                                                         
    MR. MAGARIAN: You’ve had this for --                                 
    MR. MADEL: We can make it an exhibit, if you want, too. Can you email it 
    to him so he has a copy of the document?                             
    MR. MAGARIAN: I think I may have an extra hard copy.                 
    THE WITNESS: All through verbal communication.                       
    BY MR. GROSS:                                                        
Q.  Face to face?                                                    
A.  Sometimes.                                                       
Q.  On the phone?                                                    
A.  Yes.                                                             

Q.  Never by text?                                                   
A.  Potentially by text. Is that by not phone?                       
Q.  How about by email?                                              
A.  Probably not too often.                                          
Q.  But sometimes?                                                   
A.  Maybe.                                                           
MR. MADEL: Just so the record’s clear, I handed [Mr. Gross] a copy of the 
same document that is in front of the witness.                       
MR. GROSS: Which is, as I understand, the defendants’ description of what 
they’re willing to waive with respect to the spousal privilege, right? 
MR. MADEL: Correct.                                                  
MR. GROSS: Okay. Which is not something with which NAMSA agrees,     
but I understand your waiver position.                               
BY MR. GROSS:                                                        
Q.  All right. So any other forms in which you communicate with Ms.  
Conforti about Phoenix Preclinical Labs other than live and in person, face-
to-face, on the phone, by text or by email?                          
A.  Correct.                                                         
Q.  I think you may have misheard my question. Let me ask it again. May I 
please?                                                              
A.  Sure.                                                            
    Q.  Are there any other forms in which you communicate with Ms. Conforti 
    about Phoenix Preclinical Labs other than live in person, face-to-face, by 
    phone or by email?                                                   
    MR. MAGARIAN: Object as to form of the question and vague.           
    MR. MADEL: Join.                                                     
    BY MR. GROSS:                                                        
    Q.  I didn’t mean to leave out texting. You mentioned that, also. Are those 
    all the forms in which you communicate with Ms. Conforti about Preclinical 
    Labs?                                                                
    MR. MAGARIAN: Same objections.                                       
    THE WITNESS: Seemingly, yes.                                         
(Dkt. 133-1 at 138:6-141:6.)                                              
    Then, at the end of deposition, Michael Conforti’s attorney elicited the following 
testimony:                                                                
    BY MR. MADEL:                                                        
    Q.  With that, Dr. Conforti, you were asked some questions by counsel about 
    methods of communications with your wife. Do you recall that?        
    A.  Yes.                                                             
    Q.  And I think that there might have been two ships passing in the night with 
    respect to those questions, so I’m just going to ask you two open-ended 
    questions here. Okay? Number one, what methods of communication have 
    you generally used to communicate with your wife?                    
    A.  Verbal, phone, which includes text, and email.                   
    Q.  What methods of communication did you use to communicate with your 
    wife regarding the funding, founding, creation, organization and operation of 
    Phoenix?                                                             
    MR. GROSS: Objection. Compound. Object to the extent I need to note  
    NAMSA’s disagreement with the --                                     
    MR. MADEL: I will withdraw the question. If you’re going to object on the 
    basis of it being compound, then I’ll break it on up. I was just trying to respect 
    you trying to get to the airport.                                    
    BY MR. MADEL:                                                        
    Q.  So let me break it up. What methods of communication did you use to 
    communicate with your wife regarding the funding of Phoenix?         
    A.  None.                                                            
    Q.  What methods of communication did you use to communicate with your 
    wife regarding the founding of Phoenix?                              
    A.  None.                                                            
    Q.  What methods of communication did you use to communicate with your 
    wife regarding the creation of Phoenix?                              
    A.  None.                                                            
    Q.  What methods of communication did you use to communicate with your 
    wife regarding the organization of Phoenix?                          
    A.  None.                                                            
    Q.  What methods of communication did you use to communicate with your 
    wife regarding the operation of Phoenix?                             
    A.  None.                                                            
(Id. at 195:20-197:15.)                                                   
    This testimony elicited re-examination by NAMSA’s counsel, as set forth below. 
    Q.  Dr. Conforti, is it your testimony today that you have never once ever 
    communicated  with  Ms.  Conforti  about  funding  her  business,  Phoenix 
    Preclinical Labs?                                                    
    A.  Correct.                                                         
    Q.  In any form?                                                     
    A.  In any form.                                                     
    Q.  And the two of you have also never communicated about her founding 
    that business?                                                       
    A.  Correct.                                                         
    Q.  And you have never communicated, even in a privileged setting, about 
    creating the business?[8]                                            
    MR. MAGARIAN: Hold on a sec. Now you’re expressly asking him to      
    disclose privilege.                                                  
    MR. GROSS: I want to know if he’s withholding information on these topics, 
    that’s all.                                                          
    MR.  MAGARIAN:  You’re  instructed  not  to  answer  to  the  extent  that 
    counsel’s  now  asking  you  to  specifically  disclose  privileged  
    communications.                                                      
    MR. MADEL: Agreed.                                                   
    BY MR. GROSS:                                                        
    Q.  Dr. Conforti, your testimony today is that you have never once ever 
    communicated about the organization of Phoenix Preclinical Labs with your 
    wife?                                                                
    A.  Correct.                                                         
    Q.  And your testimony is that you have never once communicated about the 
    operation of Phoenix Preclinical Labs with your wife?                
    A.  Correct.                                                         
    Q.  You have withheld communications as privileged, invoking the spousal 
    privilege in discovery in this action, right?                        

8    NAMSA suggests this instruction not to answer should result in waiver (Dkt. 128 
at 9), but its argument is unclear.  In any event, the Court would not find waiver because 
the Court cannot discern from this question if NAMSA was asking if the Confortis had 
communicated in an attorney-client privileged setting about creating the business, in a 
marital privilege setting, or some other privileged setting.  If NAMSA believed this 
question fell within the scope of the Waiver Agreement, it had the opportunity to explain 
why during the deposition—or in connection with this Motion.              
A.  Say that again.                                                  
Q.  You have withheld communications with Ms. Conforti because you’ve 
invoked your spousal privilege in this action, right?                
MR. MAGARIAN: Objection. Form.                                       
MR. MADEL: Same.                                                     
THE WITNESS: Correct.                                                
BY MR. GROSS:                                                        
Q.  And you’re aware that Ms. Conforti has also withheld communications 
with you, invoking the spousal privilege in this action?             
MR. MADEL: Objection. Form.                                          
MR. MAGARIAN: Objection. Form.                                       
THE WITNESS: Correct.                                                

BY MR. GROSS:                                                        
Q.  Let’s see if your counsel will allow a yes-or-no answer to this question. 
Is it your position that in all of the communications with Ms. Conforti that 
you have withheld in this action, there are no communications about the 
funding, founding, creation, organization or operation of Phoenix?   
MR. MADEL: Hold on one second. Hold on.                              
MR. MAGARIAN: Only because the – I find the question confusing, but  
you’re just basically asking him in what – what’s been withheld, is he 
withholding anything that falls within our waiver.                   
MR. GROSS: I don’t think that’s the way I asked it.                  
MR. MAGARIAN: Huh?                                                   
MR. GROSS: I don’t think that’s the way I asked it.                  
MR. MAGARIAN: Well, I – I’m trying to understand what you’re asking. 
So is what you’re asking, we’ve got our waiver of those -- those – where’s 
the -- I had it in front of me -- thank you.                         
MR. GROSS: It’s actually not related to the waiver, it’s related to what you 
haven’t waived. It’s related to what’s withheld.                     
MR. MAGARIAN: Right. But our waiver is any spousal communications    
regarding  the  funding,  founding,  creation,  organization,  operation  of 
Phoenix. Anything that fits within those, we have produced. And so is your 
question did we not produce something that fits within one of these waiver 
exceptions?                                                          
MR. GROSS: That wasn’t the question. I don’t --                      
MR. MAGARIAN: Then I don’t understand the question.                  
MR. GROSS: I don’t have my realtime. Maybe we’ll have it read back,  
please. The question before the colloquy among counsel.              
(The question was read.)                                             
MR. MADEL: I hear that to be exactly what [Mr. Magarian] just asked. 
MR. MAGARIAN:  And you just told  me it wasn’t, so that’s  why I’m   
confused.                                                            
MR. GROSS: I wasn’t interested in rephrasing it. I’d like an answer to that 
question so I wanted it read back.                                   
MR.  MAGARIAN:  Okay.  But  --  understand.  Where  –  I’m  saying  the 
question’s vague. I’m trying to make sure we understand the question before 
he gives an answer since we’re dealing with an issue of privilege. And if my 
understanding is correct -- and I’m happy to have you ask the question the 
way you’ve asked it but with the understanding that my interpretation is 
correct.                                                             
MR. GROSS: Yeah, I think we’re on the same page.                     
MR. MAGARIAN: Okay.                                                  
THE WITNESS: You guys are going to have to get me on the same page as 
you because I’m thoroughly confused by the whole privilege matter to begin 
with.                                                                
MR. MADEL: Do you need the question read back again?                 
THE WITNESS: Yes, probably a couple times.                           
MR. MAGARIAN: And then maybe with -- and with my understanding of    
the question read back as well.                                      
MR. GROSS: No. You and I can discuss the question, but I get to ask them 
of the witness. So he gets to hear the question again. You can make your 
objection. If there’s an instruction, you’ll make it. I was happy to discuss 
with you how you’re interpreting it, and I think we’re on the same page. But 
the pending question is the pending question, and you have the opportunity 
to make your objection and any instructions you think you need to make. 
MR. MAGARIAN: Well, then I want my objection read back after the -- with 
my understanding after the question’s read back. This is an issue of privilege. 
I’m not --                                                           
MR. GROSS: I understand.                                             
MR. MAGARIAN: Okay. Which is not just, you know, a question about a  
tattoo. So I get -- I need to make sure that the privilege is respected. I 
understand why you don’t want it to be, but I need to make sure that the 
privilege is respected, and so that means that the witness needs to make sure 
he fully understands the question. And if we’re on the same page, I don’t 
know what the big deal is.                                           
MR. GROSS: There’s a pending question.                               
THE WITNESS: Somebody’s going to have to read it back to me.         
MR. GROSS: Would you please read the question before the lawyer colloquy 
again.                                                               
(The question was read.)                                             
MR.  MAGARIAN:  And  if  you  could  read  my  objection  and  my    
understanding of that question.                                      
MR. MADEL: Do you understand the question?                           
THE WITNESS: Can I get the question back again?                      
(Crosstalk.)                                                         
(The question was read.)                                             
THE WITNESS: Can you read it again? Same break.                      
    (The question was read.)                                             
    THE WITNESS: Correct.                                                
(Id. at 197:23-204-2.)                                                    

    The Court includes these lengthy excerpts in this Order because they provide 
context for the “inconsistency” identified by NAMSA at the hearing, that is that Michael 
Conforti gave inconsistent testimony between pages 140-141 and 198-199 of the 
transcript about whether he had communications with Pamela Conforti about the funding, 
founding, creation, organization, or operation of Phoenix Preclinical.  (See Dkt. 202 at 

21:3-7, 21:16-25, 22:18-22.)  The Court disagrees.  The question first asked by NAMSA 
was: “What are the ways in which you communicate with Ms. Conforti, if at all, about 
Phoenix Preclinical Labs?”  (Dkt. 133-1 at 138:11-13.)  This prompted a statement by 
Pamela Conforti’s counsel that he had no objection “as long as we’re talking about the 
funding, founding, creation, organization or operation of Phoenix,” crosstalk related to 

his statement, and counsel’s provision of the waiver scope to Michael Conforti.  (Id. at 
138:14-139:9.)  Then Michael Conforti responded “[a]ll through verbal communication” 
and identified face-to-face, phone, texting, and email as those means.  (Id. at 139:10-23.)  
NAMSA’s counsel then asked: “Are there any other forms in which you communicate 
with Ms. Conforti about Phoenix Preclinical Labs other than live in person, face-to-face, 
by phone or by email?” and clarified: “I didn’t mean to leave out texting.  You mentioned 

that, also.  Are those all the forms in which you communicate with Ms. Conforti about 
Preclinical Labs?”  (Id. at 140:18-141:4.)  Michael Conforti responded: “Seemingly, 
yes.”  (Id. at 141:6.)                                                    
    The problem with NAMSA’s reliance on this testimony is that NAMSA’s  
counsel’s questions at pages 140 and 141 (and page 138) were not limited to questions 

falling within the scope of the Waiver Agreement, that is, the funding, founding, creation, 
organization or operation of Phoenix Preclinical.  It appears that NAMSA thinks that 
counsel’s statement that “[a]s long as we’re talking about the funding, founding, creation, 
organization and operation of Phoenix [Preclinical], I don’t have an objection” beginning 
on page 138 somehow limited the scope of NAMSA’s preceding question as well as 
those on pages 140 and 141.  But it is not at all clear that Michael Conforti interpreted 

any of those questions as so limited, particularly given that NAMSA’s counsel then asked 
(twice) about his communications with Pamela Conforti without any limitation as to their 
subject matter on pages 140 and 141 of the transcript.  In fact, Michael Conforti seemed 
confused about the scope of the waiver and what was being asked.  (See, e.g., id. at 
138:14-18 (asking for waiver scope “again” even though he had heard the categories “a 

thousand times”); id. at 140:10-17 (mishearing question).)                
    Michael Conforti’s lawyer referenced this apparent confusion when initiating his 
“two ships” questioning, at which time Michael Conforti testified that he used “verbal, 
phone, which includes text, and email” to communicate with Pamela Conforti “generally” 
but had no communications with her regarding the funding, founding, creation, 

organization or operation of Phoenix Preclinical.  (Id. at 195:21-197:15.)  On re-
examination by NAMSA’s counsel, Michael Conforti answered “Correct” when asked: 
“Is it your position that in all of the communications with Ms. Conforti that you have 
withheld in this action, there are no communications about the funding, founding, 
creation, organization or operation of Phoenix?”  (Id. at 199:22-204:4.)   

    The bottom line is that the Court is not persuaded there is any inconsistency in 
Michael Conforti’s testimony on pages 140-141 and pages 199-200.  To the extent there 
could be any inconsistency, it is the type that may occur during a deposition and which 
follow-up questioning could have clarified (or sharpened to better present the issue to the 
Court).  The Court declines to find a waiver based on Michael Conforti’s testimony about 
his communications with Pamela Conforti about Phoenix Preclinical and denies the 

Motion insofar as it is based on this testimony.                          
    The Court turns to NAMSA’s challenge based on Defendants’ assertion of 
privilege as to Exhibits MC12 and MC13 from Dr. Conforti’s deposition, which counsel 
described as NAMSA and APS emails.  (Dkt. 202 at 31:10-24.)  During Dr. Conforti’s 
deposition, counsel asserted privilege over MC12 and MC13.  (Dkt. 133-1 at 128:1-

130:10.)  MC12 is an email chain between the Confortis beginning January 13, 2021 and 
ending January 19, 2021 that are “APS emails, not NAMSA.”  (Dkt. 133-2 at 129:3-18.)  
MC13 is an email sent to Dr. Conforti at namsa.com dated May 13, 2022.  (Id. at 129:12-
20.)  NAMSA stated at the hearing that there was still a dispute as to MC12 and MC13.  
(Dkt. 202 at 31:10-24.)  But it appears that the MC13 may fall within the scope of 

Defendants’ agreed-upon production, as it is a communication that occurred on 
NAMSA’s server on or after February 26, 2021.  (See Dkt. 188 at 22.)      
    At this point, the Court is unable to ascertain from the record whether a dispute 
remains regarding MC12 and MC13, and counsel barely addressed these exhibits at the 
hearing.  (See Dkt. 202 at 31:10-20.)  Because the parties have not made clear whether 
there is still a dispute, the Court denies without prejudice the Motion as to MC12 and 

MC13.  To the extent NAMSA still seeks production of MC12 and MC13 and    
Defendants maintain their assertion of privilege, NAMSA may file a letter brief of no 
more than 3 pages submitting the exhibits for in camera review within 7 days after the 
date of this Order, and Defendants may file a letter brief of no more than 3 pages in 
response within 7 days after the date of NAMSA’s filing.  The parties may not raise any 
new issues in those letter briefs.                                        

C.   FlexSchema, Phoenix Preclinical, and APS Emails                      
    NAMSA argues that Defendants waived any potentially applicable marital 
communications privilege over communications made through their business email 
accounts, specifically their FlexSchema, Phoenix Preclinical, and APS emails.  (Dkt. 128 
at 4-5, 19-22.)  NAMSA argues that the Confortis had no reasonable expectation of 

privacy in those emails, because the FlexSchema and Phoenix Preclinical were 
“employer-monitored systems,” and because APS had a policy that “management” had 
the right to monitor all email.  (Id. at 20-21.)  NAMSA further argues that communicating 
in the presence of a third-party employer waives the privilege.  (Id. at 20.)   
    Defendants responded that courts have declined to find a waiver where the persons 

at issue were owners or “the management” of the company, as the Confortis were with 
respect to APS and are with respect to FlexSchema, and as Pamela Conforti is with 
respect to Phoenix Preclinical.  (Dkt. 188 at 24-26.)  Defendants also argue that emails 
sent on the APS server before February 26, 2021 (when NAMSA purchased APS) are not 
relevant to any claim or defense in this matter, nor are emails sent on the FlexSchema 
server, as FlexSchema is not a competitor to NAMSA and in fact was one of NAMSA’s 

vendors.  (Id. at 21-24.)                                                 
    1.   FlexSchema and Phoenix Preclinical Emails                       
    The Court first addresses the FlexSchema and Phoenix Preclinical emails.  
Counsel for Pamela Conforti and Phoenix Preclinical represented to the Court that no 
responsive documents are being withheld from Phoenix Preclinical email accounts on the 
basis of marital privilege.  (Dkt. 202 at 66:13-22.)  Counsel also represented that no 

responsive documents were withheld from the FlexSchema email accounts on the basis of 
marital privilege.  (Id. at 62:12-63:20.)  Based on these representations, the Court denies 
the Motion as moot as to Phoenix Preclinical and FlexSchema emails because, based on 
the representations of counsel, there are no documents for Defendants to produce.  See 
Century Industries Co. v. Rosemount Inc., No. Civ. 01-103 (DWF/AJB), 

 at *2 (D. Minn. May 21, 2002) (affirming denial of motion to compel where: 
“Defendant’s counsel, as officers of the court, have represented to the Court that the full 
documents have been produced.  Plaintiffs have offered no concrete basis to believe that 
Defendant’s counsel have misrepresented themselves to the Court; rather Plaintiffs would 
have the Court disregard the attorneys’ representations to the Court solely on the basis of 

rank speculation.”); Prokosch v. Catalina Lighting, Inc., 

 (D. Minn. 
2000) (“As a matter of practical reality, the Court must accept, at face value, a party’s 
representation that it has fully produced all materials that are discoverable. . . .  Here, we 
must accept [Defendant’s] representation, that it is currently unable to respond to the 
Plaintiffs’ discovery requests because it has no such documents.  If, upon further inquiry, 
[Defendant’s] representation is untrue, and unjustified, then the full panoply of sanctions, 

under Rule 37, are available to us in rectifying such egregious misconduct.”) (cleaned 
up).                                                                      
    2.   APS Emails                                                      
    The Court turns to NAMSA’s request that the Court order Defendants to produce 
emails sent on APS servers before NAMSA acquired APS in February 2021.  (See Dkt. 
128 at 19.)  The Court learned at the May 9, 2024 hearing that NAMSA already has those 

emails, because NAMSA owns and possesses the APS email server or servers, and also 
learned that NAMSA has already searched that server or servers for documents, including 
emails dating before NAMSA’s acquisition of APS.  (Id. at 94:15-96:18.)  It appears that 
NAMSA is asking the Court to order Defendants to produce emails that NAMSA already 
has.  When the Court raised this point at the hearing, NAMSA stated that it was 

concerned that Defendants may have APS emails that NAMSA does not have, and that 
Defendants should have produced the APS emails they do have.  (Id. at 89:1-9.)  The 
Court then confirmed that NAMSA was asking for an order that “to the extent that the 
Confortis have APS emails from before February 26th, 2021 that are responsive to 
discovery in this case, that the Court determine that those emails which you [(NAMSA)] 

don’t have are not protected by the marital privilege.”  (Id. at 89:10-15.)  NAMSA 
confirmed that was its request.  (Id. at 89:16-17.)  The Court declines to make this 
determination for several reasons.  First, NAMSA appears to be asking for a finding of no 
privilege in a vacuum, as NAMSA’s speculation that the Confortis may have pre-
February 26, 2021 APS emails that are not on the APS servers lacks any support in the 
record.  In other words, there do not appear to be any emails at issue.  Second, NAMSA 

has access to the pre-February 26, 2021 APS email servers, but has not made a showing 
that emails between the Confortis before that date contain information relevant to a claim 
or defense in this action, much less any showing that requiring Defendants to search their 
APS emails (if they have any in their possession, custody, or control) and produce 
responsive documents is proportionate to the needs of the case.  Notably, NAMSA’s 
February 26, 2021 purchase of APS occurred over a year before the May 2022 alleged 

misappropriation.  (See Dkt. 97 ¶ 165.)                                   
    As the party seeking discovery, the burden is on NAMSA to show relevance and 
proportionality.  See In re: EpiPen Direct Purchaser Litig., No. 20-CV-827 (ECT/JFD), 

, at *3 (D. Minn. Mar. 29, 2023) (“If the moving party meets its initial 
burden of showing that the requested discovery is relevant and proportional, then the 

burden shifts to the party resisting discovery to show that it is not relevant or is unduly 
burdensome.”); Sadare v. Bosch Automotive Service Solutions Inc., No. 19-CV-3083 
(NEB/ECW), 

, at *3 (D. Minn. Sept. 23, 2021) (“The Eight[h] Circuit 
has held that the party seeking discovery has the burden of showing relevance before the 
requested information is produced.”) (citing Hofer v. Mack Trucks, Inc., 

 (8th Cir. 1992)).  The Court denies this Motion insofar as NAMSA seeks an order 
finding the marital privilege does not apply to pre-February 26, 2021 emails sent on the 
APS servers and requiring Defendants to produce such emails because NAMSA has not 
met its threshold burden of showing this discovery is relevant or proportionate to the 
needs of the case (particularly given that NAMSA has access to and has searched the 
APS email servers and could have relied on pre-February 26, 2021 emails on those 

servers to make this showing).  Because the Court denies the Motion on this ground, the 
Court need not and will not rule at this time on the question of whether the Confortis had 
a reasonable expectation of privacy in their pre-February 26, 2021 emails sent on APS 
servers.                                                                  
    However, as recognized above, it appears that there may still be a dispute over 
MC12, which is an email chain between the Confortis beginning January 13, 2021 and 

ending January 19, 2021 that are “APS emails, not NAMSA.”  (Dkt. 133-2 at 139:3-18; 
see Dkt. 133-1 at 129:1-130:10.)  If there is still a dispute over MC12, NAMSA and 
Defendants must use the 3-page letter brief procedure described above if NAMSA still 
seeks production of that document and Defendants oppose its production.  The parties 
may renew their reasonable expectation of privacy arguments in those letter briefs. 

    3.   “Business Affairs” Exception                                    
    The Court turns to the parties’ dispute over the “business communications” or 
“business affairs” exception to the marital communications privilege, as NAMSA argues 
that exception is a basis for ordering production of emails sent over FlexSchema, Phoenix 
Preclinical, and APS systems.  (Dkt. 128 at 22-24.)  The exception applies when the 

communications “[are] not intended [to be] confidential,” otherwise lack “some other 
indication of confidentiality,” or would likely “have been shared with other persons.”  
Veracities PBS v. Strand, 

 (D. Or. 2022).  NAMSA argues 
that “[a]lthough the Eighth Circuit has not yet had the opportunity to expressly consider 
the ‘business affairs’ exception to the marital communications privilege,” according to 
NAMSA, “the Eighth Circuit has recognized, ‘the fact that the communication relates to 

business transactions tends to show that it was not intended as confidential.’”  (Dkt. 128 
at 22-23 (citing Fowler v. United States, 

 (8th Cir. 1965)) (cleaned 
up).)  NAMSA urges the Court to adopt the exception and order the “production of all 
improperly withheld documents and communications relating to the Confortis’ business.”  
(Id. at 24.)  Defendants oppose the application of the exception, noting that it has not 
been recognized by the Eighth Circuit or the District of Minnesota and asserting that 

NAMSA has not met its burden of establishing that specific withheld communications are 
subject to the exception.  (Dkt. 188 at 27-31.)                           
    Given the Court’s denial of the Motion on other grounds, the Court need not 
decide in this Order whether to adopt the business affairs exception to the marital 
communications privilege.  However, if the parties have not resolved their disputes over 

MC12 and MC13, the parties may make arguments relating to this exception in their 3-
page letter briefs.                                                       
D.   NAMSA’s Appendix A                                                   
    Part of the relief sought by NAMSA is an order requiring Defendants to produce 
all withheld documents and communications that hit on the search terms attached to 

NAMSA’s brief as Appendix A.  (Dkt. 128 at 18-19, 24; see id. at 27-28 (Appendix A).)  
Given the Court’s denial of the Motion, the Court denies this request for relief as moot.  
In any event, the Court would not be inclined to order Defendants to run NAMSA’s 
proposed search terms in Appendix A.  Although Defendants shared some of their search 
terms with NAMSA, the parties did not meet and confer regarding search terms during 
expedited discovery.  (Dkt. 202 at 49:14-25.)  Expedited discovery closed without 

Defendants raising any concerns about search terms, and NAMSA has not met and 
conferred with Defendants regarding any deficiencies in Defendants’ searching.  (See id. 
at 56:10-25.)  If NAMSA wishes to meet and confer with Defendants regarding search 
terms during the regular discovery period, it can and should do so, and if the parties 
cannot reach agreement, NAMSA may bring any disputes to the Court by a motion or 
through IDR.                                                              

E.   Defendants’ Amended Privilege Logs                                   
    NAMSA raised three specific issues relating to PRIV007356,           
PHOENIX_00110619, and PRIV007136 in its notice relating to Defendants’ amended 
privilege logs (Dkts. 213, 214), to which Defendants responded (Dkt. 278).  The Court 
addresses those issues below.                                             

    PRIV007356.  The description for this entry with a document date of March 21, 
2023 has been amended to read: “Spousal communication exclusively between P 
Conforti and M Conforti regarding P Conforti conversation with third party about 
potential Phoenix Investment acquisition.”  (Dkt. 214-1 at 22.)  NAMSA argues this 
document falls within paragraph 2 of the waiver (relating to the funding, founding, 

creation, organization, and operation of Phoenix Preclinical) because, according to 
NAMSA, that category “includes acquiring facilities to support the creation, 
organization, or operation of Defendant Phoenix Preclinical Labs.”  (Dkt. 213 at 1-2.)  
For the same reasons stated in Section III.B.1, supra, relating to Pamela Conforti’s 
testimony about her conversations with Michael Conforti relating to her search for and 
selection of a facility to purchase for Phoenix Investments, the Court rejects this 

argument.                                                                 
    PHOENIX_00110619 and PRIV0716.  The amended subject line for         
PHOENIX_00110619 reads “Redacted email with attachments from M. Conforti to P. 
Conforti regarding PPP loan forgiveness amount appeal.”  (Dkt. 214-1 at 24.)  NAMSA 
asserts that the PPP “loan-related” materials are proprietary and trade secret and fall 
within paragraph 3 of the Waiver Agreement.  (Dkt. 213 at 2.)  Defendants assert that the 

document does not relate to the exchange of proprietary information or trade secrets 
between the Confortis or any documents or information that they allegedly took from 
NAMSA.  (Dkt. 278 at 2.)                                                  
    As for PRIV07136, the amended subject line reads “Spousal communication 
exclusively between P. Conforti and M. Conforti regarding E. Drake email regarding 

NAMSA’s compliance with drug regulations and matters unrelated to the litigation.”  
(Dkt. 214-1 at 22.)  NAMSA claims this relates to business affairs, “specifically 
NAMSA’s compliance with drug regulations and its employee Dr. Drake, and to 
NAMSA’s claim that Dr. Conforti made defamatory statements on such topics.”  (Dkt. 
213 at 2.)  Defendants assert that it “relates in no way to the business affairs of Ms. 

Conforti and Dr. Conforti.”  (Dkt. 278 at 2.)                             
    The parties’ competing characterizations of PHOENIX_00110619 and PRIV0716 
underscore the fact-specific nature of privilege disputes and the difficulty of resolving 
them on a global basis or in the abstract.  The Court declines to find a waiver based on 
competing descriptions of documents when the documents are not before the Court.  
Should NAMSA wish to compel production of these documents, it must meet and confer 

with Defendants and file a properly supported motion if it still seeks relief after doing so.  
The parties are advised that the Court will entertain a request for sanctions in the form of 
reasonable expenses under Rule 37(a)(5)(A), (B), or (C) if the motion is granted, denied, 
or granted in part and denied in part, respectively.                      
    Finally, NAMSA takes issue with Michael Conforti’s removal of “non-  
responsive” documents from his prior log and the sufficiency of his descriptions in the 

amended log.  (Dkt. 213 at 3.)  If NAMSA seeks relief as to the amended privilege log, it 
must meet and confer with Defendants and file a properly supported motion—with the 
same caution to the parties as to reasonable expenses under Rule 37(a)(5)(A), (B), or (C) 
as stated with respect to PHOENIX_00110619 and PRIV0716.  However, NAMSA’s 
non-specific arguments as to Michael Conforti’s amended privilege log do not change the 

Court’s analysis as to this Motion.                                       
                         IV.  ORDER                                      
    For the reasons stated above, and based upon all the files, records, and proceedings 
herein, IT IS ORDERED THAT:                                               
    1.   Plaintiffs North American Science Associates, LLC and NAMSA Holdco, 

LLC’s “Motion to Compel Discovery and Preclude Defendants from Asserting the 
Marital Communications Privilege as a Sword and a Sheild [sic]” (Dkt. 126) is DENIED. 
    2.   To the extent Plaintiffs North American Science Associates, LLC and 
NAMSA Holdco, LLC still seek production of MC12 and MC13 and Defendants   
maintain their assertion of privilege over those documents, Plaintiffs may file a letter 
brief of no more than 3 pages submitting the exhibits for in camera review within 7 days 

after the date of this Order, and Defendants may file a letter brief of no more than 3 pages 
in response within 7 days after the date of that filing.  The parties may not raise any new 
issues in those letter briefs.                                            

DATED: June 25, 2024               s/Elizabeth Cowan Wright               
                                  ELIZABETH COWAN WRIGHT                 
                                  United States Magistrate Judge         

                UNITED STATES DISTRICT COURT                             
                    DISTRICT OF MINNESOTA                                



North American Science Associates, LLC,                                  
an Ohio limited liability company also  Case No. 24-cv-0287 (JWB/ECW)    
known as NAMSA, and NAMSA Holdco,                                        
LLC, a Delaware limited liability                                        
company,                                                                 

          Plaintiffs,                                                    

v.                                          ORDER                        

Michael Conforti, Pamela Conforti, and                                   
Phoenix Preclinical Labs, LLC, a                                         
Minnesota limited liability company,                                     

          Defendants.                                                    


    This case is before the Court on Plaintiffs North American Science Associates, 
LLC and NAMSA Holdco, LLC’s “Motion to Compel Discovery and Preclude      
Defendants from Asserting the Marital Communications Privilege as a Sword and a 
Sheild [sic].”  (Dkt. 126.)  For the reasons stated below, the Motion is denied. 
                      I.   BACKGROUND                                    
A.   Factual and Procedural Background                                    
    On February 2, 2024, Plaintiff North American Science Associates, LLC filed this 
action against Defendants Michael Conforti, Pamela Conforti, and Phoenix Preclinical 
Labs, LLC (collectively, “Defendants”) alleging misappropriation of trade secrets under 
the Defend Trade Secrets Act, 

 et seq.; breaches of confidentiality 
agreements; and commercial defamation, and also filed a Motion for a Temporary 
Restraining Order and Preliminary Injunction.  (See generally Dkts. 1, 23.)  On February 

5, 2024, U.S. District Judge Jerry W. Blackwell held a status conference (Dkt. 46), 
decided to treat that Motion “as a motion for a preliminary injunction, rather than a 
motion for a temporary restraining order” (see Dkt. 54 ¶ 1), and ordered “expedited 
discovery [relating to the preliminary injunction motion] that is limited to readily 
accessible documents and information necessary to resolve Plaintiff’s motion” (id. ¶ 2).   
    On February 28, 2024, the Court entered a scheduling order as to the expedited 

discovery and set deadlines relating to an amended motion for preliminary injunction.  
(Dkt. 80.)  The Order set an April 19, 2024 close of expedited discovery; an April 22, 
2024 deadline to seek relief concerning expedited discovery, and an April 26, 2024 
deadline for the amended motion for preliminary injunction.  (Id. at 2.)1  The parties later 
stipulated to the consolidation of North American Science Associates, LLC’s action 

against Defendants in this District with an action filed by North American Science 
Associates, LLC and NAMSA Holdco, LLC (collectively, “NAMSA”) against Defendant 
Michael Conforti in the District of Delaware (which had been transferred to this District) 
(Dkt. 81), and the Court consolidated the cases on March 7, 2024 (Dkt. 89). 
    At the Court’s direction, the parties filed an Amended Complaint reflecting the 

consolidation on March 13, 2024.  (Dkts. 89, 97.)  Defendants Pamela Conforti and 
Phoenix Preclinical Labs, LLC (“Phoenix Preclinical”) filed an Answer and 

1    Unless otherwise stated, page citations to the docket are to the CM/ECF 
pagination.                                                               
Counterclaims for defamation and unfair competition against North American Science 
Associates, LLC on April 3, 2024 (Dkt. 118) and Defendant Michael Conforti also filed 

his Answer on April 3, 2024 (Dkt. 119).  Defendants Pamela Conforti and Phoenix 
Preclinical filed an Answer and Amended Counterclaims on April 24, 2024.  (Dkt. 142.) 
    Meanwhile, the parties proceeded with expedited discovery and the Court resolved 
discovery disputes through informal dispute resolution (“IDR”) four times between 
February 28, 2024 and April 30, 2024.  (See Dkts. 88, 106, 121, 191.)  NAMSA filed the 
instant Motion on April 22, 2024.  (Dkt. 126.)  On April 26, 2024, NAMSA filed its 

Amended Motion for Preliminary Injunction (Dkt. 160) along with a Motion for 
Sanctions against Defendants Michael Conforti and Pamela Conforti for Evidence 
Spoliation (Dkt. 151).  Most recently, on May 29, 2024, NAMSA filed a Motion to 
Dismiss Defendants/Counterclaimants Pamela Conforti’s and Phoenix Preclinical Labs, 
LLC’s Amended Counterclaims.2  (Dkt. 279.)                                

    In the Motion at issue here, NAMSA moves to preclude Defendants from asserting 
the marital communications privilege as a sword and a shield.  (Dkt. 126.)  In its brief, 
NAMSA first argued that “the Confortis tried to selectively waive the marital 
communications privilege while simultaneously invoking it to conceal relevant 
communications and facts,” that is, the Confortis (who are married) are “using their 

marital communications as a sword when it suits them” but otherwise “raise the privilege 

2    Although NAMSA filed this Motion during the expedited discovery period and 
has since filed its Amended Motion for Preliminary Injunction (Dkt. 160), the issues 
raised by the Motion are not moot given that discovery is ongoing (see Dkt. 196 at 3 
(setting November 1, 2024 fact discovery deadline)).                      
as a shield.”  (Dkt. 128 at 3, 14; see generally 

.)  NAMSA’s second argument 
was that Defendants waived any potentially applicable marital communications privilege 

over communications made through their business email accounts, specifically their sent 
and received emails while working for NAMSA’s predecessor American Preclinical 
Services (“APS”), which was founded by the Confortis and purchased by NAMSA in 
2021; emails sent and received via IT systems and business accounts at the Confortis’ 
“separate business, FlexSchema”; and emails sent and received over Pamela Conforti’s 
Phoenix Preclinical account.  (Id. at 2, 4-5, 19-22.)  Third, NAMSA asked the Court to 

recognize and apply “a ‘business affairs’ exception to the narrowly construed marital 
communications privilege.”  (Id. at 2, 22-24.)  NAMSA also proposed a set of search 
terms in an appendix to its brief and asked the Court to require Defendants to run those 
terms and produce documents that hit on those terms.  (Id. at 19, 24, 27-28.) 
    Defendants oppose the Motion.  (See Dkt. 188.)  Defendants argue they have 

properly invoked the privilege within the scope of a waiver agreed to by NAMSA and 
they have not used the privilege as a sword and a shield.  (Id. at 18-21.)  Defendants also 
argue that their APS emails dated from before NAMSA acquired APS in 2021 and their 
FlexSchema emails are not relevant, and that they did not waive privilege by 
communicating using email accounts belonging to companies they owned, founded, and 

operated.  (Id. at 21-27.)  Finally, Defendants argue that “[t]he business-affairs exception 
is not recognized in Minnesota, the Eighth Circuit, or the District of Minnesota,” the 
Court should not recognize it here, and even if the Court did recognize it, NAMSA has 
not shown the exception applies to the communications at issue.  (Id. at 27-31.) 
    The Court held a hearing on the Motion on May 9, 2024.  (Dkt. 202.)  This hearing 
clarified the issues raised by the Motion, and the Court will address the parties’ oral 

argument in the discussion below.  However, before turning to the specific arguments, the 
Court highlights three additional facts in this section.                  
    First, on April 5, 2024, Defendants Michael Conforti and Pamela Conforti agreed 
to waive the marital communications privilege (also referred to as the “spousal privilege” 
or “marital privilege”) for three categories of communications between them: those 
(a) “regarding alleged ‘spoliation’ of evidence up to and including the date and time it 

allegedly occurred with respect to that specific alleged ‘spoliation’”; (b) “regarding the 
funding, founding, creation, organization, and operation of Phoenix [Preclinical]”; and 
(c) “the alleged taking of NAMSA’s proprietary information or trade secrets, or the 
alleged exchange of that proprietary information or trade secrets between Ms. Conforti 
and Dr. Conforti” in exchange for NAMSA’s agreement that this waiver, “standing alone, 

does not constitute a broader waiver of the spousal privilege generally.”  (Dkt. 130-3 at 5-
6; Dkt. 130-7 at 2.)  The Court refers to the parties’ agreement as the “Waiver 
Agreement.”  When NAMSA entered into the Waiver Agreement, it also “reserve[d] its 
right to challenge all assertions of privilege, including spousal privilege.”  (Dkt. 130-7 at 
2.)                                                                       

    Second, Defendants have represented that they withheld documents consistent 
with the scope of this Waiver Agreement.  (Dkt. 188 at 13 (“Ms. Conforti and Phoenix 
Preclinical did not withhold and log otherwise maritally privileged documents that fall 
within the three enumerated categories of communications central to NAMSA’s claims in 
this dispute.”); 

 (“Dr. Conforti did not withhold and log otherwise maritally-
privileged documents that fall within the three enumerated categories of communications 

central to NAMSA’s claims in this dispute.”).)  As NAMSA relied on Defendants’ 
privilege logs to support the Motion, the Court will clarify certain aspects of the privilege 
logs.  Pamela Conforti and Phoenix Preclinical produced two privilege logs in this case: a 
“logic image privilege log,” which they state contained logged documents “regardless of 
whether they were responsive to NAMSA’s document requests” because the logic image 
“was produced irrespective of the relevancy of the contents” due to the demands of 

expedited discovery.  (Dkt. 188 at 11-12.)  This logic image privilege log is attached as 
Exhibit 7 to the Declaration of Shannon Lankenau (“Lankenau Declaration”).  (Dkt. 130-
4.)  They later produced a “traditional privilege log,” which identified Pamela Conforti 
and Phoenix Preclinical’s “responsive and privileged documents.”  (Dkt. 188 at 12.)  This 
traditional privilege log is attached as Exhibit 8 to the Lankenau Declaration.  (Dkt. 130-

5.)  Pamela Conforti and Phoenix Preclinical stated: “if a document is not on the 
‘Traditional Privilege Log’ it is not responsive to NAMSA’s First Set of Requests for 
Production.”  (Dkt. 188 at 12.)                                           
    Michael Conforti produced only a “traditional privilege log.”  (Id. at 13-14.)  His 
traditional privilege log is attached as Exhibit 9 to the Lankenau Declaration.  (Dkt. 130-

6.)  For purposes of this Motion, the Court focuses on the traditional privilege logs for 
two reasons.  First, Defendants have represented that those logs identified documents that 
are responsive to NAMSA’s discovery and were withheld on privilege grounds.  Second, 
NAMSA has not offered any evidence calling into question Pamela Conforti and Phoenix 
Preclinical’s distinction between their logic image privilege log and their traditional 
privilege log.  Although NAMSA commented on the number of entries and the 

sufficiency of the privilege logs (see Dkt. 128 at 7-8), it did not seek relief with respect to 
the logs’ sufficiency or specific documents (other than those discussed in this Order) 
when NAMSA filed its Motion.  Then, with the Court’s permission, NAMSA did make 
post-hearing arguments regarding Defendants’ amended traditional privilege logs (Dkts. 
213, 214), to which Defendants responded (Dkt. 278).  The Court addresses those 
arguments in Section III.E, infra.                                        

    Third and finally, there are several important points regarding the APS, 
FlexSchema, and Phoenix Preclinical email accounts.  Counsel for Pamela Conforti and 
Phoenix Preclinical represented to the Court at the May 9, 2024 hearing that they were 
not withholding any responsive documents from Phoenix Preclinical email accounts on 
the basis of marital privilege.  (Dkt. 202 at 66:13-21.)3  Counsel also represented that no 

responsive documents were withheld from the FlexSchema email accounts on the basis of 
marital privilege.  (Id. at 62:12-63:20.)  Finally, NAMSA confirmed at the hearing that 
NAMSA owns and possesses the APS email server and has already searched that email 
server for documents, including emails dating before NAMSA’s acquisition of APS.  (Id. 
at 95:24-96:18.)                                                          





3    Citations to transcripts are in transcript page:line format.         
                    II.  LEGAL STANDARD                                  
    As a starting point, discovery in civil cases is limited to nonprivileged matters that 

are relevant to any party’s claim or defense and proportional to the needs of the case.  
Fed. R. Civ. P. 26(b)(1).  Rule 26(b) further limits the scope to discovery that is: 
    proportional to the needs of the case, considering the importance of the issues 
    at stake in the action, the amount in controversy, the parties’ relative access 
    to  relevant  information,  the  parties’  resources,  the  importance  of  the 
    discovery in resolving the issues, and whether the burden or expense of the 
    proposed discovery outweighs its likely benefit.                     

                                                                       
    As to the law governing the marital communications privilege, the parties disagree 
as to whether federal or state law controls the issues raised by this Motion.  NAMSA 
asserts claims under federal and state law against Defendants.  “Federal common law 
applies to the issue of privilege where subject matter jurisdiction is premised on a federal 
question, whereas state law applies to the issue of the attorney-client privilege when the 
subject matter jurisdiction is based on diversity.”  Sanimax USA, LLC v. City of S. St. 
Paul, No. 20-CV-1210 SRN/ECW, 

, at *7 n.2 (D. Minn. Oct. 18, 
2021) (citing Fed. R. Evid. 501; Simon v. G.D. Searle & Co., 

 (8th 
Cir.), cert. denied, 

 (1987); Ewald v. Royal Norwegian Embassy, No. 11-
CV-2116 SRN/SER, 

, at *5 (D. Minn. Apr. 1, 2014)), modified sub 
nom., 

 (D. Minn. Dec. 6, 2021).  “Where there are both state and 
federal claims, if the evidence sought is only relevant to the state claims, then state law 
applies; however, if the evidence sought is relevant to both the state and federal claims, 
then federal common law applies.”  Sanimax, 

, at *7 n.2 (citations 
omitted).  NAMSA argues that federal law applies because the scope of the Confortis’ 
waiver includes documents relating to NAMSA’s federal trade secret claims.  (Dkt. 128 

at 12-13; Dkt. 202 at 42:21-25.)  Defendants argue that state law applies because the 
documents implicated by the Motion “are exclusively related to Dr. Conforti’s 
involvement in Phoenix Preclinical, not to any alleged trade secret violations”—but also 
says the distinction between federal and Minnesota law does not matter.  (Dkt. 202 at 
69:4-24; Dkt. 188 at 16-18.)                                              
    Under federal common law, the marital communications privilege protects 

“confidential communications arising from the marital relationship.”  See United States v. 
White Owl, 

 (8th Cir. 2022) (quoting United States v. Allery, 

 (8th Cir. 1975)).  “The basis of the immunity given to communications 
between [spouses] is the protection of marital confidences, regarded as so essential to the 
preservation of the marriage relationship as to outweigh the disadvantages to the 

administration of justice which the privilege entails.”  Wolfle v. United States, 

 (1934) (citations omitted).  Under Minnesota law, the marital communications 
privilege applies “to any communication made by one to the other during the marriage,” 
subject to exceptions not relevant here.  

(a).  Notwithstanding 
the parties’ dispute over whether federal or state law applies, the Court need not decide 

this issue because the Court would reach the same conclusion as to the Motion under 
federal or Minnesota law.                                                 
    As to a party’s reliance on an evidentiary privilege such as the marital 
communications privilege, principles of fairness preclude a party “from simultaneously 
using the privilege as both a sword and a shield; that is, it prevents the inequitable result 
of a party disclosing favorable communications while asserting the privilege as to less 

favorable ones.”  In re Seagate Tech., LLC, 

, 1372 (Fed. Cir. 2007) 
(attorney client privilege), abrogated on other grounds by Halo Elecs., Inc. v. Pulse 
Elecs., Inc., 

 (2016); see also United States v. Workman, 

 
(8th Cir. 1998) (holding that “[t]he attorney client privilege cannot be used as both a 
shield and a sword”).  Under Minnesota law:                               

    The  owner  of  the  privilege  of  preventing  the disclosure of  confidential 
    communications cannot, after testifying to or about them, or to or about any 
    substantial part of them, without claiming his privilege, or objecting to testify 
    on the ground of his privilege, invoke that privilege to prevent other parties 
    to the communications from testifying to them. He cannot by his silence lay 
    down the shield of his privilege, and assail another with the sword of his own 
    testimony to the privileged communications, and, when his adversary essays 
    to defend himself, or to attack him by his version of the testimony, or by the 
    testimony of other parties or witnesses to such communications, again seize 
    the shield of his privilege and shut out all testimony as to the confidential 
    communications but his own. He has waived his privilege and “such waiver 
    is in no sense contrary to public policy; indeed, it is in the interest of truth 
    and justice.”                                                        

Swanson v. Domning, 

 (Minn. 1957) (quoting Kelly v. Cummens, 

 (Iowa 1909)).                                           
                        III.  ANALYSIS                                   
    The Court first addresses NAMSA’s sword/shield argument, including whether 
NAMSA is estopped from making this argument based on the Waiver Agreement and 
whether NAMSA has identified specific instances where Defendants’ conduct should 
result in a finding of waiver.  The Court then addresses NAMSA’s arguments relating to 
communications sent on APS, FlexSchema, and Phoenix Preclinical servers, including 
those relating to the Confortis’ reasonable expectation of privacy in such communications 
and whether the Court should adopt the “business affairs” exception to the marital 

communications privilege.                                                 
A.   NAMSA Cannot Seek a Broader Waiver Based Only on the Waiver          
    Agreement                                                            
    The Court begins with the threshold issue of whether, as Defendants argue, 
judicial estoppel preludes NAMSA’s sword/shield argument.  (See Dkt. 188 at 18.)  “The 
doctrine of judicial estoppel prohibits a party from taking inconsistent positions in the 
same or related litigation.”  United States ex rel. Gebert v. Transp. Admin. Servs., 

 (8th Cir. 2001) (quoting Hossaini v. W. Mo. Med. Ctr., 

 (8th Cir. 1998)).                                                    

    NAMSA’s brief led with the following sword/shield argument:          
    First off, there is no real question that Defendants’ waiver is partial and 
    selective. They waived the privilege on three narrow points and no others, 
    while invoking it to withhold thousands of potentially relevant documents 
    and testimony. First, they waived it as to “[a]ny spousal communication 
    regarding alleged ‘spoliation’ of evidence up to and including the date and 
    time it allegedly occurred with respect to that specific alleged ‘spoliation.’” 
    This would leave the Confortis free to claim they never discussed or planned 
    the destruction of troves of relevant evidence before it happened, while 
    simultaneously concealing all of their communications about such serious 
    conduct afterwards. Second, they waived the privilege as to “[a]ny spousal 
    communications regarding the funding, founding, creation, organization, and 
    operation of Phoenix.” This would leave them free to claim they purportedly 
    never “substantively” communicated about those five specific topics, while 
    concealing all communications about other aspects of this competitive, not-
    yet-operational  business  (e.g.,  planning,  promoting,  or  supporting  it,  or 
    interacting with other businesses or potential partners about it). Finally, 
    Defendants  waived  their  privilege  as to “[a]ny  spousal  communications 
    regarding the alleged taking of NAMSA’s proprietary information or trade 
    secrets, or the alleged exchange of that proprietary information or trade 
    secrets  between  Ms.  Conforti  and  Dr.  Conforti.”  This  waiver  on 
    communications  about  “taking”  or  “exchanging”  NAMSA’s  proprietary 
    information would still permit Defendants to conceal communications about 
    other illicit uses of proprietary information, such as copying, exploiting, 
    disclosing, maintaining, deleting, or otherwise interacting with it.” 

    Courts in the Eighth Circuit reject litigants’ attempts to selectively waive 
    other privileges, and these cases are highly instructive. . . . The same principle 
    applies  here:  the  Confortis  needed  to choose  a  single  course  of  action, 
    waiving any applicable privilege over their communications about the facts 
    of this lawsuit, or invoking it and staying silent on those topics. The law does 
    not entitle them to do both.                                         

(Dkt. 128 at 15-16.)4  Based on these arguments, the Court reads NAMSA’s brief as 
seeking a broader waiver because NAMSA viewed the scope of Defendants’ agreed-to 
waiver in the Waiver Agreement as selective and unfair.                   
    Further confirming NAMSA’s focus on the Waiver Agreement as a basis for a 
broader waiver, NAMSA also argued:                                        
    The Confortis have attempted to selectively waive the privilege over specific 
    and limited communications about (1) the spoliation of evidence, (2) the 
    newly created [contract research organization] Phoenix, and (3) their acts of 
    misappropriation. Partially waiving the privilege on these select topics has 
    enabled them deny [sic] having had any real interaction with one another 
    about them, while concealing thousands of communications that may shed 
    light on those claims, and refusing to testify about the topics more generally.  

    This sword-and-shield strategy is improper. NAMSA should not be forced to 
    accept Defendants’ bald, self-serving assertions at face value, such as their 
    claims that Dr. Conforti has had no meaningful or substantive involvement 
    in the new competitive [contract research organization]. NAMSA is entitled 
    to discover the withheld communications about such key issues in the case 
    and question the witnesses on them without restriction. Respectfully, the 
    Court should reject Defendants’ attempts at selective waiver and order the 

4    NAMSA acknowledged (in a footnote) that it “was willing to agree that 
Defendants’ waivers on certain topics ‘standing alone, d[id] not constitute a broader 
waiver of the spousal privilege generally.’”  (Id. at 7 n.5.)  In that footnote, NAMSA 
noted its reservation of rights “to challenge all assertions of privilege, including spousal 
privilege, as it is doing in this motion.”  (Id.)                         
    production of all documents and communications improperly withheld under 
    the marital communications privilege that relate to the subject matter of 
    Defendants’ categorial “selective” waiver or to the issues in this lawsuit 
    generally so that NAMSA can assess the veracity of Defendants’ conclusory 
    claims and follow up with depositions if it deems necessary.         

(Id. at 18.)                                                              
    Based on these and similar passages, NAMSA’s primary argument in its brief 
appears to be that Defendants’ waiver on the “three narrow points” requires a finding of 
waiver over all communications protected by the marital privilege.  If this argument is 
what NAMSA intended, NAMSA’s conduct would constitute a troubling violation of the 
Waiver Agreement.  Indeed, Defendants raised this concern in their brief, invoking 
judicial estoppel to preclude NAMSA from relying on the Waiver Agreement to seek a 
broader waiver.  (Dkt. 188 at 18.)                                        
    Nevertheless, NAMSA at times during the hearing still appeared to be relying on 
the Waiver Agreement to seek a broader waiver, while simultaneously denying it was 
violating that Agreement.  For example, NAMSA apparently disagreed with the date 
Defendants selected as the cut-off for waiver as to the alleged spoliation, and therefore 
took the position that it could seek a broader waiver (notwithstanding the Waiver 
Agreement) because the way the testimony came in was not what NAMSA expected.  
(See Dkt. 202 at 10:12-11:13 (arguing that date cut-off for spoliation was “not in the 

spirit of what’s permitted by selective waiver”); id. at 12:6-12 (arguing that it did not 
violate the Waiver Agreement to contend that the Confortis’ waiver up to the date of the 
alleged spoliation required waiver after that date because NAMSA does not believe “the 
waiver stood alone, and what I mean by that is that we didn’t expect, we didn’t 
understand and, frankly, couldn’t have predicted how the testimony would come out on 
some topics and then be halted”).)                                        

    The Court rejects NAMSA’s broad claims of sword/shield-based waiver.  
NAMSA agreed that it would not rely on Defendants’ waiver of the spousal privilege as 
to three topics, “standing alone,” to seek a broader waiver of the privilege.  (Dkt. 130-10 
at 2.)  To the extent NAMSA seeks a finding of broader waiver based on Defendants’ 
waiver as to those three points—and nothing more—NAMSA is violating the Waiver 
Agreement.  However, the Court is not persuaded that the doctrine of judicial estoppel 

applies, as “[t]he underlying purpose [of judicial estoppel] is to protect the judicial 
process.”  Amtrust Inc. v. Larson, 

 (8th Cir. 2004); see also 

 (“The 
doctrine of judicial estoppel prevents a party from taking a position during litigation 
which is contrary to one taken in a prior judicial or quasi-judicial proceeding.”).  As 
noted in Wright & Miller, “[s]everal cases distinguish the equitable estoppel theory from 

a broader theory of judicial estoppel by noting that equitable estoppel requires reliance by 
a party, while judicial estoppel requires reliance by a tribunal.”  18B Charles Alan Wright 
& Arthur R. Miller, Federal Practice and Procedure § 4477.2 (3d ed.).  Here, no court has 
previously relied on the Waiver Agreement, nor was it previously presented to the Court 
(or any other court), calling into question the applicability of judicial estoppel.   

    But whether judicial estoppel applies does not matter, because the Court need not 
rely on that doctrine to reject any attempt by NAMSA to use Defendants’ waiver on the 
three agreed-upon points to seek a broader scope of waiver.  The Court need only hold 
NAMSA to the Waiver Agreement.  “It is essential to our system of justice that lawyers 
and litigants, above all, abide by their agreements and live up to their own expectations.”  
In re Bristol-Myers Squibb Sec. Litig., 

 (D.N.J. 2002).  The Court 

expects NAMSA to abide by the Waiver Agreement and, if NAMSA will not do so of its 
own volition, the Court will enforce that agreement, especially considering the interests 
protected by the marital privilege.5  Consequently, the Court declines to find a broad 
waiver based on Defendants’ decision to waive the marital privilege as to the three points 
as set forth in the Waiver Agreement.  Doing so would unfairly reward NAMSA for 
making (and then breaking) the Waiver Agreement.  To the extent NAMSA seeks a 

broader waiver because it is unhappy with the results or scope of the Waiver Agreement, 
that makes no difference.  The Waiver Agreement was not conditioned on NAMSA’s 
satisfaction with its results and NAMSA never sought a different scope, including a 
different cut-off date for the waiver as to alleged spoliation, before making the Waiver 
Agreement.  The Court rejects any attempt by NAMSA to walk back the Waiver 

Agreement.6                                                               

5    Because NAMSA entered into the Waiver Agreement, none of its selective waiver 
cases are persuasive to the extent NAMSA seeks any relief that would undermine that 
Agreement.                                                                

6    Relying on interrogatory responses and certain testimony, NAMSA argues that 
statements that Michael Conforti had “no real involvement” and “was not involved in any 
substantive way” with the creation, formation, establishment, or business operations of 
Phoenix Preclinical, or its design, operations, creating any business relevant materials 
including controlled documents, financing, working with vendors or suppliers, etc., are a 
waiver of the marital communications privilege.  (See Dkt. 128 at 3 & n.1.)  NAMSA 
then later described the Confortis as stating their “communications” were not 
“substantive” or “real.”  (Id. at 14 (“It would be manifestly unfair to permit Defendants to 
continue using their marital communications as a sword when it suits them (e.g., 
B.   NAMSA’s Deposition-Based Sword/Shield Arguments                      
    The Court turns to NAMSA’s second sword/shield argument, which is that the 

parties disagree as to the scope of the Waiver Agreement.  (Dkt. 202 at 9:3-20 (stating 
that NAMSA’s sword/shield arguments were based on “an interpretation of those topics” 
while its email communications arguments were based on “broader waivers”).)  NAMSA 
identified specific instances of instructions not to answer during the Confortis’ 
depositions and assertions of privilege over certain exhibits to support this argument.  
(Dkt. 128 at 8-12 (describing specific instances).)  Defendants argue that waiver should 

not be found because these instances were simply misunderstandings that often occur 
during depositions and that, to the extent Defendants later withdrew assertions of 
privilege as to certain documents that NAMSA tried to use during depositions, they 
already agreed to reopen the deposition or offer a declaration as to those exhibits.  (Dkt. 
188 at 18-21, 26-27.)                                                     





describing their communications as limited, not ‘substantive’ or ‘real’ . . . .”); id. at 15 
(“This would leave them free to claim they purportedly never ‘substantively’ 
communicated about those five specific topics, while concealing all communications 
about other aspects of this competitive, not yet operational business . . . .”) (emphases 
removed).)  NAMSA’s latter statements are somewhat imprecise.  There is a distinction 
between “involvement” to the extent it constitutes conduct outside of communications, 
such as analyzing potential sites (e.g., Dkt. 133 at 141:1-5), forming an entity, creating 
materials, etc., and communications between spouses about such conduct.  For purposes 
of this Motion, the Court focuses on the Confortis’ communications and their testimony 
about those communications, because it is communications that are protected by the 
privilege.                                                                
    1.   Pamela Conforti’s Deposition and Exhibits                       
    The Court begins with Pamela Conforti’s deposition.  As background, Pamela 

Conforti asserts she became interested in becoming a landlord in the spring of 2023 and 
formed a single member LLC, Phoenix Investments, in her own name to do so, 
eventually purchasing a building in Coon Rapids, Minnesota.  (Dkt. 133 at 122:19-24, 
125:22-126:10.)  Pamela Conforti testified that Phoenix Investments purchased the Coon 
Rapids building before she decided to form Phoenix Preclinical.  (Id. at 123:4-8, 125:1-
12.)  She incorporated Phoenix Preclinical in September 2023, apparently after a meeting 

with NAMSA in August 2023 “where she felt slighted by NAMSA”; demolition work 
began on the Phoenix Investments building in October 2023; and construction began on 
the building in January 2024.  (Id. at 126:19-127:7; see id. Dkt. 202 at 73:3-8 (counsel 
describing August 2023 meeting).)                                         
    When asked what role, if any, Michael Conforti played in her consideration and 

selection of potential facilities or properties to purchase, Pamela Conforti testified that his 
only role was as “a spouse sounding board” and that “he was not influencing [her] or 
participating in the analysis or any type of the decision-making.”  (Dkt. 133 at 140:7-
141:4.)  After that testimony, Pamela Conforti’s counsel set forth the scope of the Waiver 
Agreement on the record and, when NAMSA’s counsel asked how Michael Conforti 

acted as a “sounding board,” Pamela Conforti’s counsel instructed her not to answer if 
she thought the answer fell outside of the funding, founding, creation, organization, and 
operation of Phoenix Preclinical.  (Id. at 141:9-146:8.)  Ms. Conforti declined to answer 
because the question “relate[d] to the purchase of the building as it is outside the 
founding of and operation of Phoenix, which is defined as Phoenix Preclinical Labs.”  
(Id. at 146:9-13.)  NAMSA now argues that these topics were “well within the scope of 

the waiver that the defendants had offered” but NAMSA was not able to explore them 
because Ms. Conforti would not answer the questions and counsel instructed her not to 
answer them.  (Dkt. 202 at 14:2-17; see also Dkt. 128 at 8-9 (taking issue with Ms. 
Conforti’s “unilateral assessment that the questioning fell outside the narrow scope of her 
selective waiver”).)  According to NAMSA, Pamela Conforti’s testimony about the 
selection of the facility purchased by Phoenix Investments, her knowledge that it could be 

equipped for a life sciences laboratory that would compete with NAMSA, and her use of 
Michael Conforti as a non-influential sounding board falls within the scope of paragraphs 
2 and 3 of the Waiver Agreement.  (Dkt. 202 at 16:20-17:18.)              
    Paragraph 2 of the Waiver Agreement is a waiver of “[a]ny spousal    
communications regarding the funding, founding, creation, organization, and operation of 

Phoenix Preclinical.”  (Dkt. 130-3 at 5.)  At the hearing, NAMSA acknowledged that 
paragraph 2 of the Waiver Agreement did not encompass Phoenix Investments.  (Dkt. 
202 at 12:21-13:9.)  Nevertheless, NAMSA asserts that the questions at issue “relate[d] to 
things such as the operation of Phoenix Preclinical Labs at that site.”  (Id. at 15:1-2.)  
NAMSA contends that “the facts are so intertwined as to be inseparable” such that the 

scope of paragraph 2 “includes any steps the defendants took related to creating or 
organizing or operating Phoenix, including steps they may have taken through other 
entities to provide the very specialized facilities that Phoenix Preclinical Laboratories 
would need.”  (Id. at 18:1-20, 20:9-15.)                                  
    NAMSA’s argument ignores the difference between Phoenix Investments and 
Phoenix Preclinical, the unrebutted testimony that Pamela Conforti started Phoenix 

Investments and began looking at properties before she decided to form Phoenix 
Preclinical, and the distinction between purchasing a property for use as landlord and 
starting the Phoenix Preclinical contract research organization.  The link between 
conversations about Pamela Conforti’s selection of a facility to purchase so Phoenix 
Investments could be a landlord and Pamela Conforti’s decision months later to start 
Phoenix Preclinical is simply too attenuated for the Court to find conversations about 

Phoenix Investment’s facility selection fall within the scope of paragraph 2.  Doing so 
would eviscerate that paragraph’s plain language.  The Court finds that Pamela Conforti’s 
use of Michael Conforti as a “sounding board” with respect to the selection of a facility 
for Phoenix Investment to lease before she decided to form Phoenix Preclinical does not 
fall within the scope of paragraph 2.                                     

    NAMSA also asserted that Michael Conforti’s use as a “sounding board” falls 
within the scope of paragraph 3 of the agreed-upon waiver.  (Dkt. 202 at 16:17-18.)  
Paragraph 3 is a waiver as to “[a]ny spousal communications regarding the alleged taking 
of NAMSA’s proprietary information or trade secrets, or the alleged exchange of that 
proprietary information or trade secrets between Ms. Conforti and Dr. Conforti.”  

However, NAMSA at times described the discussions at issue regarding Phoenix 
Investments’ selection of a building as relating to “allegations about violations of 
noncompetes”—not the taking or exchange of trade secrets or proprietary information.  
(Id. at 13:17-24.)  Noncompete agreements were not within the scope of paragraph 3.7  
And NAMSA has not articulated how communications around Phoenix Investment’s 

purchase of a building with the possibility of leasing it (even to a NAMSA competitor) 
implicates communications around the taking or exchange of NAMSA’s proprietary 
information or trade secrets.  The Court denies the Motion insofar as it seeks relief with 
respect to the Confortis’ discussions about Phoenix Investments’ selection of a facility to 
purchase.                                                                 
    The second issue raised with respect to Pamela Conforti’s deposition is counsel’s 

assertions of privilege over exhibits PC10 and PC11.  (Dkt. 128 at 10-12; see also Dkt. 
202 at 29:24-30:25.)  During Pamela Conforti’s deposition, NAMSA attempted to 
introduce exhibits PC10 and PC11, which were email communications between the 
Confortis using their NAMSA email addresses.  (Dkt. 133 at 69:6-71:20, 73:23-76:6.)  
Defendants’ counsel objected and instructed Pamela Conforti not to answer questions 

about these exhibits based on the marital communications privilege.  (Id.)  Counsel later 
objected to the use of PC10 and PC11 during Michael Conforti’s deposition.  (Dkt. 133-1 
at 47:15-48:17.)  However, Defendants later withdrew their privilege assertions over 
those specific exhibits and agreed to produce them.  (Dkt. 202 at 29:24-30:19.)  During 


7    The Court does not understand NAMSA to have argued that violations of the 
noncompete clauses were included in paragraph 3.  In any event, given NAMSA’s 
arguments that the claims for misappropriation of proprietary information and trade 
secrets relate to federal law (Dkt. 202 at 42:21-25), and while the “noncompete 
obligations” are based on contracts and state law (id. at 19:12-14; see also Dkt. 97 ¶ 91 
(identifying confidentiality agreements as containing non-competition language)), the 
Court declines to import allegations relating to violation of noncompete clauses into 
paragraph 3.                                                              
the hearing, NAMSA stated that the relief it seeks is “to be able to use them without 
restriction in a further deposition.”  (Id. at 30:20-25.)                 

    It appears NAMSA seeks relief to which Defendants had already agreed, as 
Defendants stated in their brief:                                         
    To the extent NAMSA needs to further depose Ms. Conforti regarding the 
    NAMSA emails between Ms. Conforti and Dr. Conforti that Ms. Conforti 
    and  Phoenix  Preclinical  agreed  to  produce,  Ms.  Conforti  has  already 
    indicated  a  willingness  [sic]  reopening  the  deposition  on  the  specific 
    documents at issue, subject to the remaining time limitations expressed a 
    willingness to consider an alternate route, such as a declaration in lieu of 
    testimony, making court intervention unripe and unnecessary.         

(Dkt. 188 at 27 (citing Dkt. 190-1).)  Dr. Conforti’s counsel also agreed to reopening his 
deposition.  (Dkt. 190-1 at 3.)                                           
    Defendants made this offer of reopening the Confortis’ depositions on April 22, 
2024.  (Dkt. 190-1 at 3.)  Given that Defendants offered to reopen the Confortis’ 
depositions on April 22, 2024, and NAMSA had not taken Defendants up on that offer as 
of the May 9, 2024 hearing on this Motion, it does not appear that NAMSA needs to 
reopen depositions for purposes of their Amended Motion for Preliminary Injunction.  
Consequently, to the extent any relief is required, NAMSA may use PC10 and PC11 at 
future depositions in this case, subject to any restrictions imposed by the Protective 
Order, but the Court will not order reopening of Pamela Conforti’s or Michael Conforti’s 
deposition solely for purposes of examining them regarding PC10 and PC11.  The 
Motion is denied as moot insofar as NAMSA seeks to be able to use PC10 and PC11 at 
depositions and denied to the extent NAMSA seeks reopening of the Confortis’ expedited 
discovery depositions.                                                    
    2.   Michael Conforti’s Deposition and Exhibits                      
    The Court turns to Michael Conforti’s deposition.  NAMSA argues that 

inconsistencies in Michael Conforti’s testimony and objections made to certain exhibits 
during his deposition require a finding of waiver.  (Dkt. 128 at 9-10.)  The Court first 
addresses the alleged inconsistent testimony.  NAMSA’s counsel clarified at the hearing 
what testimony NAMSA believes gives rise to the waiver:                   
    So according to his testimony under cross-examination, [Michael Conforti] 
    had communications about Phoenix Preclinical Laboratories with his wife in 
    these variety of different ways.                                     

    But  then  when  we  asked  him  specifically  about  what  we  thought  was 
    undoubtedly  the  subject  of  the  waiver,  asking  him  whether  he  had 
    communicated in a privileged setting about creating the business, Phoenix 
    Preclinical Labs, he was instructed not to answer that question. And that 
    struck us. That’s, again, at Lankenau Exhibit 2. It was towards the end of the 
    day. It was at page 198. And the question was designed to focus on the 
    subject matter that we thought was clearly the topic of the waiver, but he was 
    instructed not to answer.                                            

(Dkt. 202 at 21:12-25.)                                                   
    The Court pointed out to NAMSA’s counsel that Michael Conforti had answered 
the question: “Is it your position that in all of the communications you’ve had with Ms. 
Conforti that you have withheld in this action, there are no communications about the 
funding, founding, creation, organization, or operation of Phoenix?” with “Correct.”  (Id. 
at 22:1-8.)  NAMSA acknowledged that fact and responded: “[W]e’ve been unable to test 
that without what we think should be the full scope of the waiver and to look at 
documents that we suspect relate to exactly those facts” and: “[T]he testimony was 
inconsistent.  On the one hand, he said he had these communications.  Later he denied it.  
And then, as you just read into the record, he also said he never had those 
communications.”  (Id. at 22:9-22.)                                       

    The Court reproduces the relevant portions of the transcript of Michael Conforti’s 
deposition below.                                                         
    Q.  You communicate with your wife, Ms. Conforti, by text from time to 
    time, I imagine?                                                     
    A.  Yes.                                                             
    Q.  And you delete her texts as well?                                
    A.  Yes.                                                             
    Q.  What are the ways in which you communicate with Ms. Conforti, if at 
    all, about Phoenix Preclinical Labs?                                 
    MR. MAGARIAN: As long as we’re talking about the funding, founding,  
    creation, organization or operation of Phoenix, I don’t have an objection. 
    THE WITNESS: Can you repeat those? Sorry. I know you’ve repeated them 
    a thousand times, but give them to me again.                         
    MR. MAGARIAN: Sure.                                                  
    MR. MADEL: Funding, founding, creation, organization and operation. This 
    is our waiver. Is it okay if I show it to him?                       
    MR. GROSS: You can show him. I’m going to ask to see it after you do. 
    (Crosstalk.)                                                         
    MR. MAGARIAN: You’ve had this for --                                 
    MR. MADEL: We can make it an exhibit, if you want, too. Can you email it 
    to him so he has a copy of the document?                             
    MR. MAGARIAN: I think I may have an extra hard copy.                 
    THE WITNESS: All through verbal communication.                       
    BY MR. GROSS:                                                        
Q.  Face to face?                                                    
A.  Sometimes.                                                       
Q.  On the phone?                                                    
A.  Yes.                                                             

Q.  Never by text?                                                   
A.  Potentially by text. Is that by not phone?                       
Q.  How about by email?                                              
A.  Probably not too often.                                          
Q.  But sometimes?                                                   
A.  Maybe.                                                           
MR. MADEL: Just so the record’s clear, I handed [Mr. Gross] a copy of the 
same document that is in front of the witness.                       
MR. GROSS: Which is, as I understand, the defendants’ description of what 
they’re willing to waive with respect to the spousal privilege, right? 
MR. MADEL: Correct.                                                  
MR. GROSS: Okay. Which is not something with which NAMSA agrees,     
but I understand your waiver position.                               
BY MR. GROSS:                                                        
Q.  All right. So any other forms in which you communicate with Ms.  
Conforti about Phoenix Preclinical Labs other than live and in person, face-
to-face, on the phone, by text or by email?                          
A.  Correct.                                                         
Q.  I think you may have misheard my question. Let me ask it again. May I 
please?                                                              
A.  Sure.                                                            
    Q.  Are there any other forms in which you communicate with Ms. Conforti 
    about Phoenix Preclinical Labs other than live in person, face-to-face, by 
    phone or by email?                                                   
    MR. MAGARIAN: Object as to form of the question and vague.           
    MR. MADEL: Join.                                                     
    BY MR. GROSS:                                                        
    Q.  I didn’t mean to leave out texting. You mentioned that, also. Are those 
    all the forms in which you communicate with Ms. Conforti about Preclinical 
    Labs?                                                                
    MR. MAGARIAN: Same objections.                                       
    THE WITNESS: Seemingly, yes.                                         
(Dkt. 133-1 at 138:6-141:6.)                                              
    Then, at the end of deposition, Michael Conforti’s attorney elicited the following 
testimony:                                                                
    BY MR. MADEL:                                                        
    Q.  With that, Dr. Conforti, you were asked some questions by counsel about 
    methods of communications with your wife. Do you recall that?        
    A.  Yes.                                                             
    Q.  And I think that there might have been two ships passing in the night with 
    respect to those questions, so I’m just going to ask you two open-ended 
    questions here. Okay? Number one, what methods of communication have 
    you generally used to communicate with your wife?                    
    A.  Verbal, phone, which includes text, and email.                   
    Q.  What methods of communication did you use to communicate with your 
    wife regarding the funding, founding, creation, organization and operation of 
    Phoenix?                                                             
    MR. GROSS: Objection. Compound. Object to the extent I need to note  
    NAMSA’s disagreement with the --                                     
    MR. MADEL: I will withdraw the question. If you’re going to object on the 
    basis of it being compound, then I’ll break it on up. I was just trying to respect 
    you trying to get to the airport.                                    
    BY MR. MADEL:                                                        
    Q.  So let me break it up. What methods of communication did you use to 
    communicate with your wife regarding the funding of Phoenix?         
    A.  None.                                                            
    Q.  What methods of communication did you use to communicate with your 
    wife regarding the founding of Phoenix?                              
    A.  None.                                                            
    Q.  What methods of communication did you use to communicate with your 
    wife regarding the creation of Phoenix?                              
    A.  None.                                                            
    Q.  What methods of communication did you use to communicate with your 
    wife regarding the organization of Phoenix?                          
    A.  None.                                                            
    Q.  What methods of communication did you use to communicate with your 
    wife regarding the operation of Phoenix?                             
    A.  None.                                                            
(Id. at 195:20-197:15.)                                                   
    This testimony elicited re-examination by NAMSA’s counsel, as set forth below. 
    Q.  Dr. Conforti, is it your testimony today that you have never once ever 
    communicated  with  Ms.  Conforti  about  funding  her  business,  Phoenix 
    Preclinical Labs?                                                    
    A.  Correct.                                                         
    Q.  In any form?                                                     
    A.  In any form.                                                     
    Q.  And the two of you have also never communicated about her founding 
    that business?                                                       
    A.  Correct.                                                         
    Q.  And you have never communicated, even in a privileged setting, about 
    creating the business?[8]                                            
    MR. MAGARIAN: Hold on a sec. Now you’re expressly asking him to      
    disclose privilege.                                                  
    MR. GROSS: I want to know if he’s withholding information on these topics, 
    that’s all.                                                          
    MR.  MAGARIAN:  You’re  instructed  not  to  answer  to  the  extent  that 
    counsel’s  now  asking  you  to  specifically  disclose  privileged  
    communications.                                                      
    MR. MADEL: Agreed.                                                   
    BY MR. GROSS:                                                        
    Q.  Dr. Conforti, your testimony today is that you have never once ever 
    communicated about the organization of Phoenix Preclinical Labs with your 
    wife?                                                                
    A.  Correct.                                                         
    Q.  And your testimony is that you have never once communicated about the 
    operation of Phoenix Preclinical Labs with your wife?                
    A.  Correct.                                                         
    Q.  You have withheld communications as privileged, invoking the spousal 
    privilege in discovery in this action, right?                        

8    NAMSA suggests this instruction not to answer should result in waiver (Dkt. 128 
at 9), but its argument is unclear.  In any event, the Court would not find waiver because 
the Court cannot discern from this question if NAMSA was asking if the Confortis had 
communicated in an attorney-client privileged setting about creating the business, in a 
marital privilege setting, or some other privileged setting.  If NAMSA believed this 
question fell within the scope of the Waiver Agreement, it had the opportunity to explain 
why during the deposition—or in connection with this Motion.              
A.  Say that again.                                                  
Q.  You have withheld communications with Ms. Conforti because you’ve 
invoked your spousal privilege in this action, right?                
MR. MAGARIAN: Objection. Form.                                       
MR. MADEL: Same.                                                     
THE WITNESS: Correct.                                                
BY MR. GROSS:                                                        
Q.  And you’re aware that Ms. Conforti has also withheld communications 
with you, invoking the spousal privilege in this action?             
MR. MADEL: Objection. Form.                                          
MR. MAGARIAN: Objection. Form.                                       
THE WITNESS: Correct.                                                

BY MR. GROSS:                                                        
Q.  Let’s see if your counsel will allow a yes-or-no answer to this question. 
Is it your position that in all of the communications with Ms. Conforti that 
you have withheld in this action, there are no communications about the 
funding, founding, creation, organization or operation of Phoenix?   
MR. MADEL: Hold on one second. Hold on.                              
MR. MAGARIAN: Only because the – I find the question confusing, but  
you’re just basically asking him in what – what’s been withheld, is he 
withholding anything that falls within our waiver.                   
MR. GROSS: I don’t think that’s the way I asked it.                  
MR. MAGARIAN: Huh?                                                   
MR. GROSS: I don’t think that’s the way I asked it.                  
MR. MAGARIAN: Well, I – I’m trying to understand what you’re asking. 
So is what you’re asking, we’ve got our waiver of those -- those – where’s 
the -- I had it in front of me -- thank you.                         
MR. GROSS: It’s actually not related to the waiver, it’s related to what you 
haven’t waived. It’s related to what’s withheld.                     
MR. MAGARIAN: Right. But our waiver is any spousal communications    
regarding  the  funding,  founding,  creation,  organization,  operation  of 
Phoenix. Anything that fits within those, we have produced. And so is your 
question did we not produce something that fits within one of these waiver 
exceptions?                                                          
MR. GROSS: That wasn’t the question. I don’t --                      
MR. MAGARIAN: Then I don’t understand the question.                  
MR. GROSS: I don’t have my realtime. Maybe we’ll have it read back,  
please. The question before the colloquy among counsel.              
(The question was read.)                                             
MR. MADEL: I hear that to be exactly what [Mr. Magarian] just asked. 
MR. MAGARIAN:  And you just told  me it wasn’t, so that’s  why I’m   
confused.                                                            
MR. GROSS: I wasn’t interested in rephrasing it. I’d like an answer to that 
question so I wanted it read back.                                   
MR.  MAGARIAN:  Okay.  But  --  understand.  Where  –  I’m  saying  the 
question’s vague. I’m trying to make sure we understand the question before 
he gives an answer since we’re dealing with an issue of privilege. And if my 
understanding is correct -- and I’m happy to have you ask the question the 
way you’ve asked it but with the understanding that my interpretation is 
correct.                                                             
MR. GROSS: Yeah, I think we’re on the same page.                     
MR. MAGARIAN: Okay.                                                  
THE WITNESS: You guys are going to have to get me on the same page as 
you because I’m thoroughly confused by the whole privilege matter to begin 
with.                                                                
MR. MADEL: Do you need the question read back again?                 
THE WITNESS: Yes, probably a couple times.                           
MR. MAGARIAN: And then maybe with -- and with my understanding of    
the question read back as well.                                      
MR. GROSS: No. You and I can discuss the question, but I get to ask them 
of the witness. So he gets to hear the question again. You can make your 
objection. If there’s an instruction, you’ll make it. I was happy to discuss 
with you how you’re interpreting it, and I think we’re on the same page. But 
the pending question is the pending question, and you have the opportunity 
to make your objection and any instructions you think you need to make. 
MR. MAGARIAN: Well, then I want my objection read back after the -- with 
my understanding after the question’s read back. This is an issue of privilege. 
I’m not --                                                           
MR. GROSS: I understand.                                             
MR. MAGARIAN: Okay. Which is not just, you know, a question about a  
tattoo. So I get -- I need to make sure that the privilege is respected. I 
understand why you don’t want it to be, but I need to make sure that the 
privilege is respected, and so that means that the witness needs to make sure 
he fully understands the question. And if we’re on the same page, I don’t 
know what the big deal is.                                           
MR. GROSS: There’s a pending question.                               
THE WITNESS: Somebody’s going to have to read it back to me.         
MR. GROSS: Would you please read the question before the lawyer colloquy 
again.                                                               
(The question was read.)                                             
MR.  MAGARIAN:  And  if  you  could  read  my  objection  and  my    
understanding of that question.                                      
MR. MADEL: Do you understand the question?                           
THE WITNESS: Can I get the question back again?                      
(Crosstalk.)                                                         
(The question was read.)                                             
THE WITNESS: Can you read it again? Same break.                      
    (The question was read.)                                             
    THE WITNESS: Correct.                                                
(Id. at 197:23-204-2.)                                                    

    The Court includes these lengthy excerpts in this Order because they provide 
context for the “inconsistency” identified by NAMSA at the hearing, that is that Michael 
Conforti gave inconsistent testimony between pages 140-141 and 198-199 of the 
transcript about whether he had communications with Pamela Conforti about the funding, 
founding, creation, organization, or operation of Phoenix Preclinical.  (See Dkt. 202 at 

21:3-7, 21:16-25, 22:18-22.)  The Court disagrees.  The question first asked by NAMSA 
was: “What are the ways in which you communicate with Ms. Conforti, if at all, about 
Phoenix Preclinical Labs?”  (Dkt. 133-1 at 138:11-13.)  This prompted a statement by 
Pamela Conforti’s counsel that he had no objection “as long as we’re talking about the 
funding, founding, creation, organization or operation of Phoenix,” crosstalk related to 

his statement, and counsel’s provision of the waiver scope to Michael Conforti.  (Id. at 
138:14-139:9.)  Then Michael Conforti responded “[a]ll through verbal communication” 
and identified face-to-face, phone, texting, and email as those means.  (Id. at 139:10-23.)  
NAMSA’s counsel then asked: “Are there any other forms in which you communicate 
with Ms. Conforti about Phoenix Preclinical Labs other than live in person, face-to-face, 
by phone or by email?” and clarified: “I didn’t mean to leave out texting.  You mentioned 

that, also.  Are those all the forms in which you communicate with Ms. Conforti about 
Preclinical Labs?”  (Id. at 140:18-141:4.)  Michael Conforti responded: “Seemingly, 
yes.”  (Id. at 141:6.)                                                    
    The problem with NAMSA’s reliance on this testimony is that NAMSA’s  
counsel’s questions at pages 140 and 141 (and page 138) were not limited to questions 

falling within the scope of the Waiver Agreement, that is, the funding, founding, creation, 
organization or operation of Phoenix Preclinical.  It appears that NAMSA thinks that 
counsel’s statement that “[a]s long as we’re talking about the funding, founding, creation, 
organization and operation of Phoenix [Preclinical], I don’t have an objection” beginning 
on page 138 somehow limited the scope of NAMSA’s preceding question as well as 
those on pages 140 and 141.  But it is not at all clear that Michael Conforti interpreted 

any of those questions as so limited, particularly given that NAMSA’s counsel then asked 
(twice) about his communications with Pamela Conforti without any limitation as to their 
subject matter on pages 140 and 141 of the transcript.  In fact, Michael Conforti seemed 
confused about the scope of the waiver and what was being asked.  (See, e.g., id. at 
138:14-18 (asking for waiver scope “again” even though he had heard the categories “a 

thousand times”); id. at 140:10-17 (mishearing question).)                
    Michael Conforti’s lawyer referenced this apparent confusion when initiating his 
“two ships” questioning, at which time Michael Conforti testified that he used “verbal, 
phone, which includes text, and email” to communicate with Pamela Conforti “generally” 
but had no communications with her regarding the funding, founding, creation, 

organization or operation of Phoenix Preclinical.  (Id. at 195:21-197:15.)  On re-
examination by NAMSA’s counsel, Michael Conforti answered “Correct” when asked: 
“Is it your position that in all of the communications with Ms. Conforti that you have 
withheld in this action, there are no communications about the funding, founding, 
creation, organization or operation of Phoenix?”  (Id. at 199:22-204:4.)   

    The bottom line is that the Court is not persuaded there is any inconsistency in 
Michael Conforti’s testimony on pages 140-141 and pages 199-200.  To the extent there 
could be any inconsistency, it is the type that may occur during a deposition and which 
follow-up questioning could have clarified (or sharpened to better present the issue to the 
Court).  The Court declines to find a waiver based on Michael Conforti’s testimony about 
his communications with Pamela Conforti about Phoenix Preclinical and denies the 

Motion insofar as it is based on this testimony.                          
    The Court turns to NAMSA’s challenge based on Defendants’ assertion of 
privilege as to Exhibits MC12 and MC13 from Dr. Conforti’s deposition, which counsel 
described as NAMSA and APS emails.  (Dkt. 202 at 31:10-24.)  During Dr. Conforti’s 
deposition, counsel asserted privilege over MC12 and MC13.  (Dkt. 133-1 at 128:1-

130:10.)  MC12 is an email chain between the Confortis beginning January 13, 2021 and 
ending January 19, 2021 that are “APS emails, not NAMSA.”  (Dkt. 133-2 at 129:3-18.)  
MC13 is an email sent to Dr. Conforti at namsa.com dated May 13, 2022.  (Id. at 129:12-
20.)  NAMSA stated at the hearing that there was still a dispute as to MC12 and MC13.  
(Dkt. 202 at 31:10-24.)  But it appears that the MC13 may fall within the scope of 

Defendants’ agreed-upon production, as it is a communication that occurred on 
NAMSA’s server on or after February 26, 2021.  (See Dkt. 188 at 22.)      
    At this point, the Court is unable to ascertain from the record whether a dispute 
remains regarding MC12 and MC13, and counsel barely addressed these exhibits at the 
hearing.  (See Dkt. 202 at 31:10-20.)  Because the parties have not made clear whether 
there is still a dispute, the Court denies without prejudice the Motion as to MC12 and 

MC13.  To the extent NAMSA still seeks production of MC12 and MC13 and    
Defendants maintain their assertion of privilege, NAMSA may file a letter brief of no 
more than 3 pages submitting the exhibits for in camera review within 7 days after the 
date of this Order, and Defendants may file a letter brief of no more than 3 pages in 
response within 7 days after the date of NAMSA’s filing.  The parties may not raise any 
new issues in those letter briefs.                                        

C.   FlexSchema, Phoenix Preclinical, and APS Emails                      
    NAMSA argues that Defendants waived any potentially applicable marital 
communications privilege over communications made through their business email 
accounts, specifically their FlexSchema, Phoenix Preclinical, and APS emails.  (Dkt. 128 
at 4-5, 19-22.)  NAMSA argues that the Confortis had no reasonable expectation of 

privacy in those emails, because the FlexSchema and Phoenix Preclinical were 
“employer-monitored systems,” and because APS had a policy that “management” had 
the right to monitor all email.  (Id. at 20-21.)  NAMSA further argues that communicating 
in the presence of a third-party employer waives the privilege.  (Id. at 20.)   
    Defendants responded that courts have declined to find a waiver where the persons 

at issue were owners or “the management” of the company, as the Confortis were with 
respect to APS and are with respect to FlexSchema, and as Pamela Conforti is with 
respect to Phoenix Preclinical.  (Dkt. 188 at 24-26.)  Defendants also argue that emails 
sent on the APS server before February 26, 2021 (when NAMSA purchased APS) are not 
relevant to any claim or defense in this matter, nor are emails sent on the FlexSchema 
server, as FlexSchema is not a competitor to NAMSA and in fact was one of NAMSA’s 

vendors.  (Id. at 21-24.)                                                 
    1.   FlexSchema and Phoenix Preclinical Emails                       
    The Court first addresses the FlexSchema and Phoenix Preclinical emails.  
Counsel for Pamela Conforti and Phoenix Preclinical represented to the Court that no 
responsive documents are being withheld from Phoenix Preclinical email accounts on the 
basis of marital privilege.  (Dkt. 202 at 66:13-22.)  Counsel also represented that no 

responsive documents were withheld from the FlexSchema email accounts on the basis of 
marital privilege.  (Id. at 62:12-63:20.)  Based on these representations, the Court denies 
the Motion as moot as to Phoenix Preclinical and FlexSchema emails because, based on 
the representations of counsel, there are no documents for Defendants to produce.  See 
Century Industries Co. v. Rosemount Inc., No. Civ. 01-103 (DWF/AJB), 

 at *2 (D. Minn. May 21, 2002) (affirming denial of motion to compel where: 
“Defendant’s counsel, as officers of the court, have represented to the Court that the full 
documents have been produced.  Plaintiffs have offered no concrete basis to believe that 
Defendant’s counsel have misrepresented themselves to the Court; rather Plaintiffs would 
have the Court disregard the attorneys’ representations to the Court solely on the basis of 

rank speculation.”); Prokosch v. Catalina Lighting, Inc., 

 (D. Minn. 
2000) (“As a matter of practical reality, the Court must accept, at face value, a party’s 
representation that it has fully produced all materials that are discoverable. . . .  Here, we 
must accept [Defendant’s] representation, that it is currently unable to respond to the 
Plaintiffs’ discovery requests because it has no such documents.  If, upon further inquiry, 
[Defendant’s] representation is untrue, and unjustified, then the full panoply of sanctions, 

under Rule 37, are available to us in rectifying such egregious misconduct.”) (cleaned 
up).                                                                      
    2.   APS Emails                                                      
    The Court turns to NAMSA’s request that the Court order Defendants to produce 
emails sent on APS servers before NAMSA acquired APS in February 2021.  (See Dkt. 
128 at 19.)  The Court learned at the May 9, 2024 hearing that NAMSA already has those 

emails, because NAMSA owns and possesses the APS email server or servers, and also 
learned that NAMSA has already searched that server or servers for documents, including 
emails dating before NAMSA’s acquisition of APS.  (Id. at 94:15-96:18.)  It appears that 
NAMSA is asking the Court to order Defendants to produce emails that NAMSA already 
has.  When the Court raised this point at the hearing, NAMSA stated that it was 

concerned that Defendants may have APS emails that NAMSA does not have, and that 
Defendants should have produced the APS emails they do have.  (Id. at 89:1-9.)  The 
Court then confirmed that NAMSA was asking for an order that “to the extent that the 
Confortis have APS emails from before February 26th, 2021 that are responsive to 
discovery in this case, that the Court determine that those emails which you [(NAMSA)] 

don’t have are not protected by the marital privilege.”  (Id. at 89:10-15.)  NAMSA 
confirmed that was its request.  (Id. at 89:16-17.)  The Court declines to make this 
determination for several reasons.  First, NAMSA appears to be asking for a finding of no 
privilege in a vacuum, as NAMSA’s speculation that the Confortis may have pre-
February 26, 2021 APS emails that are not on the APS servers lacks any support in the 
record.  In other words, there do not appear to be any emails at issue.  Second, NAMSA 

has access to the pre-February 26, 2021 APS email servers, but has not made a showing 
that emails between the Confortis before that date contain information relevant to a claim 
or defense in this action, much less any showing that requiring Defendants to search their 
APS emails (if they have any in their possession, custody, or control) and produce 
responsive documents is proportionate to the needs of the case.  Notably, NAMSA’s 
February 26, 2021 purchase of APS occurred over a year before the May 2022 alleged 

misappropriation.  (See Dkt. 97 ¶ 165.)                                   
    As the party seeking discovery, the burden is on NAMSA to show relevance and 
proportionality.  See In re: EpiPen Direct Purchaser Litig., No. 20-CV-827 (ECT/JFD), 

, at *3 (D. Minn. Mar. 29, 2023) (“If the moving party meets its initial 
burden of showing that the requested discovery is relevant and proportional, then the 

burden shifts to the party resisting discovery to show that it is not relevant or is unduly 
burdensome.”); Sadare v. Bosch Automotive Service Solutions Inc., No. 19-CV-3083 
(NEB/ECW), 

, at *3 (D. Minn. Sept. 23, 2021) (“The Eight[h] Circuit 
has held that the party seeking discovery has the burden of showing relevance before the 
requested information is produced.”) (citing Hofer v. Mack Trucks, Inc., 

 (8th Cir. 1992)).  The Court denies this Motion insofar as NAMSA seeks an order 
finding the marital privilege does not apply to pre-February 26, 2021 emails sent on the 
APS servers and requiring Defendants to produce such emails because NAMSA has not 
met its threshold burden of showing this discovery is relevant or proportionate to the 
needs of the case (particularly given that NAMSA has access to and has searched the 
APS email servers and could have relied on pre-February 26, 2021 emails on those 

servers to make this showing).  Because the Court denies the Motion on this ground, the 
Court need not and will not rule at this time on the question of whether the Confortis had 
a reasonable expectation of privacy in their pre-February 26, 2021 emails sent on APS 
servers.                                                                  
    However, as recognized above, it appears that there may still be a dispute over 
MC12, which is an email chain between the Confortis beginning January 13, 2021 and 

ending January 19, 2021 that are “APS emails, not NAMSA.”  (Dkt. 133-2 at 139:3-18; 
see Dkt. 133-1 at 129:1-130:10.)  If there is still a dispute over MC12, NAMSA and 
Defendants must use the 3-page letter brief procedure described above if NAMSA still 
seeks production of that document and Defendants oppose its production.  The parties 
may renew their reasonable expectation of privacy arguments in those letter briefs. 

    3.   “Business Affairs” Exception                                    
    The Court turns to the parties’ dispute over the “business communications” or 
“business affairs” exception to the marital communications privilege, as NAMSA argues 
that exception is a basis for ordering production of emails sent over FlexSchema, Phoenix 
Preclinical, and APS systems.  (Dkt. 128 at 22-24.)  The exception applies when the 

communications “[are] not intended [to be] confidential,” otherwise lack “some other 
indication of confidentiality,” or would likely “have been shared with other persons.”  
Veracities PBS v. Strand, 

 (D. Or. 2022).  NAMSA argues 
that “[a]lthough the Eighth Circuit has not yet had the opportunity to expressly consider 
the ‘business affairs’ exception to the marital communications privilege,” according to 
NAMSA, “the Eighth Circuit has recognized, ‘the fact that the communication relates to 

business transactions tends to show that it was not intended as confidential.’”  (Dkt. 128 
at 22-23 (citing Fowler v. United States, 

 (8th Cir. 1965)) (cleaned 
up).)  NAMSA urges the Court to adopt the exception and order the “production of all 
improperly withheld documents and communications relating to the Confortis’ business.”  
(Id. at 24.)  Defendants oppose the application of the exception, noting that it has not 
been recognized by the Eighth Circuit or the District of Minnesota and asserting that 

NAMSA has not met its burden of establishing that specific withheld communications are 
subject to the exception.  (Dkt. 188 at 27-31.)                           
    Given the Court’s denial of the Motion on other grounds, the Court need not 
decide in this Order whether to adopt the business affairs exception to the marital 
communications privilege.  However, if the parties have not resolved their disputes over 

MC12 and MC13, the parties may make arguments relating to this exception in their 3-
page letter briefs.                                                       
D.   NAMSA’s Appendix A                                                   
    Part of the relief sought by NAMSA is an order requiring Defendants to produce 
all withheld documents and communications that hit on the search terms attached to 

NAMSA’s brief as Appendix A.  (Dkt. 128 at 18-19, 24; see id. at 27-28 (Appendix A).)  
Given the Court’s denial of the Motion, the Court denies this request for relief as moot.  
In any event, the Court would not be inclined to order Defendants to run NAMSA’s 
proposed search terms in Appendix A.  Although Defendants shared some of their search 
terms with NAMSA, the parties did not meet and confer regarding search terms during 
expedited discovery.  (Dkt. 202 at 49:14-25.)  Expedited discovery closed without 

Defendants raising any concerns about search terms, and NAMSA has not met and 
conferred with Defendants regarding any deficiencies in Defendants’ searching.  (See id. 
at 56:10-25.)  If NAMSA wishes to meet and confer with Defendants regarding search 
terms during the regular discovery period, it can and should do so, and if the parties 
cannot reach agreement, NAMSA may bring any disputes to the Court by a motion or 
through IDR.                                                              

E.   Defendants’ Amended Privilege Logs                                   
    NAMSA raised three specific issues relating to PRIV007356,           
PHOENIX_00110619, and PRIV007136 in its notice relating to Defendants’ amended 
privilege logs (Dkts. 213, 214), to which Defendants responded (Dkt. 278).  The Court 
addresses those issues below.                                             

    PRIV007356.  The description for this entry with a document date of March 21, 
2023 has been amended to read: “Spousal communication exclusively between P 
Conforti and M Conforti regarding P Conforti conversation with third party about 
potential Phoenix Investment acquisition.”  (Dkt. 214-1 at 22.)  NAMSA argues this 
document falls within paragraph 2 of the waiver (relating to the funding, founding, 

creation, organization, and operation of Phoenix Preclinical) because, according to 
NAMSA, that category “includes acquiring facilities to support the creation, 
organization, or operation of Defendant Phoenix Preclinical Labs.”  (Dkt. 213 at 1-2.)  
For the same reasons stated in Section III.B.1, supra, relating to Pamela Conforti’s 
testimony about her conversations with Michael Conforti relating to her search for and 
selection of a facility to purchase for Phoenix Investments, the Court rejects this 

argument.                                                                 
    PHOENIX_00110619 and PRIV0716.  The amended subject line for         
PHOENIX_00110619 reads “Redacted email with attachments from M. Conforti to P. 
Conforti regarding PPP loan forgiveness amount appeal.”  (Dkt. 214-1 at 24.)  NAMSA 
asserts that the PPP “loan-related” materials are proprietary and trade secret and fall 
within paragraph 3 of the Waiver Agreement.  (Dkt. 213 at 2.)  Defendants assert that the 

document does not relate to the exchange of proprietary information or trade secrets 
between the Confortis or any documents or information that they allegedly took from 
NAMSA.  (Dkt. 278 at 2.)                                                  
    As for PRIV07136, the amended subject line reads “Spousal communication 
exclusively between P. Conforti and M. Conforti regarding E. Drake email regarding 

NAMSA’s compliance with drug regulations and matters unrelated to the litigation.”  
(Dkt. 214-1 at 22.)  NAMSA claims this relates to business affairs, “specifically 
NAMSA’s compliance with drug regulations and its employee Dr. Drake, and to 
NAMSA’s claim that Dr. Conforti made defamatory statements on such topics.”  (Dkt. 
213 at 2.)  Defendants assert that it “relates in no way to the business affairs of Ms. 

Conforti and Dr. Conforti.”  (Dkt. 278 at 2.)                             
    The parties’ competing characterizations of PHOENIX_00110619 and PRIV0716 
underscore the fact-specific nature of privilege disputes and the difficulty of resolving 
them on a global basis or in the abstract.  The Court declines to find a waiver based on 
competing descriptions of documents when the documents are not before the Court.  
Should NAMSA wish to compel production of these documents, it must meet and confer 

with Defendants and file a properly supported motion if it still seeks relief after doing so.  
The parties are advised that the Court will entertain a request for sanctions in the form of 
reasonable expenses under Rule 37(a)(5)(A), (B), or (C) if the motion is granted, denied, 
or granted in part and denied in part, respectively.                      
    Finally, NAMSA takes issue with Michael Conforti’s removal of “non-  
responsive” documents from his prior log and the sufficiency of his descriptions in the 

amended log.  (Dkt. 213 at 3.)  If NAMSA seeks relief as to the amended privilege log, it 
must meet and confer with Defendants and file a properly supported motion—with the 
same caution to the parties as to reasonable expenses under Rule 37(a)(5)(A), (B), or (C) 
as stated with respect to PHOENIX_00110619 and PRIV0716.  However, NAMSA’s 
non-specific arguments as to Michael Conforti’s amended privilege log do not change the 

Court’s analysis as to this Motion.                                       
                         IV.  ORDER                                      
    For the reasons stated above, and based upon all the files, records, and proceedings 
herein, IT IS ORDERED THAT:                                               
    1.   Plaintiffs North American Science Associates, LLC and NAMSA Holdco, 

LLC’s “Motion to Compel Discovery and Preclude Defendants from Asserting the 
Marital Communications Privilege as a Sword and a Sheild [sic]” (Dkt. 126) is DENIED. 
    2.   To the extent Plaintiffs North American Science Associates, LLC and 
NAMSA Holdco, LLC still seek production of MC12 and MC13 and Defendants   
maintain their assertion of privilege over those documents, Plaintiffs may file a letter 
brief of no more than 3 pages submitting the exhibits for in camera review within 7 days 

after the date of this Order, and Defendants may file a letter brief of no more than 3 pages 
in response within 7 days after the date of that filing.  The parties may not raise any new 
issues in those letter briefs.                                            

DATED: June 25, 2024               s/Elizabeth Cowan Wright               
                                  ELIZABETH COWAN WRIGHT                 
                                  United States Magistrate Judge