MiMedx Group Incorporated v. Surgenex LLC

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
MiMedx Group Incorporated,
Plaintiff,
v.
Surgenex LLC,
Defendant.
No. CV-24-03558-PHX-SMB
ORDER
Before the Court are MiMedx’s and Surgenex’s Opening and Responsive Apex
Deposition Briefs. (Docs 188, 189; Docs. 168, 169.) The Court will permit the deposition
of both Chief Executive Officers, with limitations, as follows.
I. BACKGROUND
This is a discovery dispute. Each party seeks to depose the other’s CEO. Though
both maintain the propriety of their own request, they argue the reciprocal demand is
improper according to the apex deposition doctrine. The Court permitted each party to
brief the issue and file responsive memorandum. (Doc. 154.)
II. LEGAL STANDARD
It is very unusual for a court to prohibit the taking of a deposition absent
extraordinary circumstances. When a party seeks to take the deposition of an official at
the highest level or “apex” of a corporation, however, the Court may exercise its authority
under Federal Rule of Civil Procedure 26(c)(1) to limit discovery. See Byrne v. Ameris
Bank, No. 8:24-CV-01989-MWC-JDEX, 2025 WL 3724463, at *2 (C.D. Cal. Nov. 17,
Case 2:24-cv-03558-SMB Document 192 Filed 05/13/26 Page 1 of 5

- 2 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2025). Courts recognize that “such discovery creates a tremendous potential for abuse or
harassment.” Id. (citation modified). Nonetheless, the party seeking to prevent the
deposition carries a heavy burden. Finisar Corp. v. Nistica, Inc., No.
13-CV-03345-BLF(JSC), 2015 WL 3988132, at *1 (N.D. Cal. June 30, 2015) (citation
modified).
“In determining whether to allow an apex deposition, courts consider (1) whether
the deponent has unique first-hand, non-repetitive knowledge of the facts at issue in the
case and (2) whether the party seeking the deposition has exhausted other less intrusive
discovery methods.” Apple Inc. v. Samsung Elecs. Co., Ltd, 282 F.R.D. 259, 263 (N.D.
Cal. 2012) (citation modified). The first factor is not stringent. “The party seeking to take
the deposition need not prove conclusively that the deponent certainly has unique non-
repetitive information; rather, where a corporate officer may have any first-hand
knowledge of relevant facts, the deposition should be allowed.” OMA Constr., Inc. v.
Teamsters Loc. 174, No. 2:22-CV-01631-LK, 2024 WL 1156411, at *4 (W.D. Wash. Mar.
18, 2024) (citation modified). The second factor is not determinative. “Formal
‘exhaustion’ of other requirements is not an absolute requirement; instead, exhaustion of
other discovery methods is an important, but not dispositive, consideration for a court to
take into account in deciding how to exercise its discretion.” Finisar Corporation, 2015
WL 3988132, at *2. Accordingly, an apex deposition is only prohibited where the burden
on the deponent outweighs the need for access to information relevant to the case.
III. DISCUSSION
The parties do not dispute that both CEOs are sufficiently high-ranking to be
considered apex deponents. Thus, the question is whether each CEO is sufficiently
removed from the pertinent case to have no first-hand, relevant information justifying his
deposition.
A. MiMedx’s CEO: Joseph Capper
As the party seeking to prevent the deposition of Joseph Capper, MiMedx bears the
relevant burden. MiMedx disputes Mr. Capper’s allegedly relevant and first-hand
Case 2:24-cv-03558-SMB Document 192 Filed 05/13/26 Page 2 of 5

- 3 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
knowledge.
Surgenex argues that Mr. Capper has personal knowledge central to MiMedx’s
Damages theory. (Doc. 189 at 7.) It states that MiMedx’s alleged damages flow directly
from Q code1 reimbursement rates which generally drive placental allograft sales, and Mr.
Capper signed the third-party agreements related to those rates. (Id. at 3–4.) Surgenex
adds that Mr. Capper approved, oversaw, and articulated MiMedx’s reimbursement
strategy to influence and lower the Centers for Medicare & Medicaid Services’ (“CMS”)
bloated reimbursement rates. (Id.) Surgenex evidences this by pointing to, inter alia,
earnings calls where Mr. Capper details MiMedx’s take on the high CMS rates, and a press
release where Mr. Capper discussed MiMedx’s commitment to reforming overpriced
reimbursement rates.
Additionally, Surgenex argues that Mr. Capper’s deposition is necessary to respond
to MiMedx’s allegations that it is entitled to lost profits damages. (Id. at 4.) It explains
that Mr. Capper’s lobbying efforts to reduce CMS reimbursement rates subsequently
reduced MiMedx’s profits from its own products. Thus, a loss in profits might be
attributable to MiMedx’s lobbying efforts as opposed to Surgenex’s alleged infringing
activity. Further, Surgenex explains that when deposing MiMedx’s Director of
Technology Transfer, Billy Lloyd, he could not answer questions about the agreements
MiMedx entered to purchase Q codes, so it noticed Mr. Capper’s deposition that same
evening. (Doc. 169 at 4.)
MiMedx responds that its Q code and reimbursement strategy is only tangentially
related to this case. (Doc. 168 at 5.) It explains that the primary driver of its damages is
Surgenex’s pricing, average sales price practices, and “hundreds of millions of dollars in
sales of accused products”—information which is necessary to determine a reasonable
royalty. (Doc. 168 at 6.) MiMedx also contends that Mr. Capper’s statements and
comments do not demonstrate first-hand knowledge of the facts of this case because they
1 According to Surgenex, “Q codes are assigned by the Centers for Medicare & Medicaid
Services to identify drugs, biologicals, and medical equipment or services not identified by
HCPSCS Level II codes, but for which codes are needed for Medicare claims processing,
such as placental allografts.” (Doc. 189 at 3 n.1.)
Case 2:24-cv-03558-SMB Document 192 Filed 05/13/26 Page 3 of 5

- 4 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
only evidence industry-wide reform efforts not exact pricing specific to MiMedx’s and
Surgenx’s products. (Id. at 7.)
But MiMedx concedes that the new regulation scheme—which Mr. Capper lobbied
for—impacts product pricing. (Id. at 8.) It argues, however, that although the scheme
“drastically” decreased Sugenex’s pricing, it did not have the same proportional impact on
MiMedx’s lower-priced products and thus would not materially impact its lost-profits
analysis. (Id.) In short, MiMedx accepts that Mr. Capper “participated in lobbying” for
the new regulations, (Id. at 13), and that such regulations impacted the pricing of both
parties’ products, (Id. at 8). Therefore, Mr. Capper has first-hand knowledge of relevant
facts.
Accordingly, the Court denies MiMedx’s request to quash Mr. Capper’s deposition
and grants Surgenex’s request to compel Mr. Capper’s deposition, subject to the following
limitations. The Court agrees with MiMedx that four hours is unnecessary. Thus, the
Court accepts MiMedx’s alternative request and will permit Surgenex to depose Mr.
Capper for no more than two hours.
B. Surgenx’s CEO: Abel Bullock
Surgenex does not dispute that MiMedx may depose Abel Bullock. It argues,
however, that the Court should limit the deposition to four hours, rather than the full seven
hours permitted by Rule 30 as requested by MiMedx. The Court agrees that seven hours
is unnecessary. However, because Mr. Bullock’s testimony goes to both infringement and
damages, a discrepancy of time between the two CEOs is appropriate. Accordingly,
MiMedx may depose Mr. Bullock for no more than four hours.
IV. CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that MiMedx is compelled to make CEO Joseph
Capper available for a deposition of no more than two hours.
…
…
Case 2:24-cv-03558-SMB Document 192 Filed 05/13/26 Page 4 of 5

- 5 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
IT IS FURTHER ORDERED that Surgenex is compelled to make CEO Abel
Bullock available for a deposition of no more than four hours.
Dated this 13th day of May, 2026.
Case 2:24-cv-03558-SMB Document 192 Filed 05/13/26 Page 5 of 5