In IN RE ACTOS ANTITRUST LITIGATION, Master File No. 1:13-cv-09244 (RA) (SDA) (S.D. N.Y., March, 2022), before the Court was Plaintiffs’ Letter Motion that sought to compel Defendant to “(1) produce all nonprivileged, responsive earlier-in-time emails that are part of the most-inclusive email threads [Defendant] already has produced or will produce to Plaintiffs; and (2) provide privilege log entries for earlier-in-time emails that are part of email threads redacted or withheld for privilege.”
The lawsuit stemmed from Plaintiffs’ allegations that Defendant prevented competitors from timely marketing a generic of Defendant’s diabetes drug by falsely describing two patents to the Food and Drug Administration. Plaintiffs were drug purchasers who alleged that they wrongfully were obliged to pay monopoly prices for the drug from Jan. 2011 to Feb. 2013.
The action was filed on Dec. 31, 2013. On March 18, 2015, the Court approved the Order Governing Protocol for Discovery of Electronically Stored Information (“ESI”) and Hard Copy Documents that the parties proposed. The Protocol required the parties to de-duplicate the ESI that was produced to avoid the production of “exact duplicate documents” but did not provide for the production of only the most inclusive email threads.
Beginning in Feb. 2022, Defendant made multiple rolling productions of non-privileged documents from 25 agreed custodians, including six in-house lawyers. In the production, Defendant used email threading. Plaintiffs objected to Defendant’s use of email threading and sought to compel Defendant’s production of earlier-in-time emails as well as the metadata associated with those emails.
Plaintiffs also sought to compel Defendant to provide privilege log entries for all emails, including the earlier-in-time emails. Defendant responded that compelling such an approach “would impose an enormous burden.” The parties exchanged drafts of a privilege log protocol but were unable to agree to the terms.
Regarding the email threading, the Court highlighted the importance of negotiating a comprehensive ESI protocol before data production is undertaken. The issue arose because Defendant made its initial rolling productions using email threading even though the Discovery Protocol did not permit such approach.
Rule 34 of the Federal Rule of Civil Procedure requires a party to produce designated ESI. See Fed. R. Civ. P. 34(a)(1)(A). The Federal Rules of Civil Procedure do not contain provisions regarding the use of email threading, nor do the Local Civil Rules of this Court. However, Rule 29 of the Federal Rules of Civil Procedure permits the parties to stipulate procedures that governed discovery, see Fed. R. Civ. P. 29(b).
The Court noted that ESI protocols must be negotiated by the parties to address any legitimate concerns the parties may have and, in this case, no similar agreement on email threading was reached.
As found by the Court, Defendant’s exclusion of lesser included emails from production resulted in the exclusion of the metadata that was associated with earlier emails in a chain. This exclusion materially reduced Plaintiffs’ ability to search for all correspondence within a date range. Also, in certain email chains, only the sender of emails earlier in a chain were reflected, and not the recipients of such emails. Finally, Defendant’s email threading removed Plaintiffs’ ability to see if anyone was blind copied on lesser included emails, even though this information was among the metadata the parties agreed in the Discovery Protocol to produce.
The Court noted that if the issue of email threading was raised at the time the parties were negotiating the Discovery Protocol, Plaintiffs may have been able to avoid the issue. However, Plaintiffs were not provided the opportunity to negotiate how email threading might be accomplished in an acceptable manner.
Accordingly, the Court, in its discretion, declined to impose email threading on Plaintiffs. Although the Court recognized that the production of earlier-in-time emails would cause some additional burden on Defendant, the Court found that any additional burden was not undue since Defendant agreed to the Discovery Protocol and likely already reviewed many of the emails at issue. Thus, Defendant was ordered to produce all responsive ESI to Plaintiffs, including the earlier-in-time emails.
As to the privilege log issue, the parties exchanged drafts of a privilege log protocol but were unable to agree to terms regarding how email threads should be logged. Since the Court required Defendant to produce earlier-in-time emails, the parties were directed to meet and confer to seek to agree on a revised privilege log protocol.
Rule 26(b)(5) provides that a withholding party must “describe the nature of the documents, communications, or tangible things not produced or disclosed—and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.” Fed. R. Civ. P. 26(b)(5)(A). Local Civil Rule 26.2(c) provides that “efficient means of providing information regarding claims of privilege are encouraged, and parties are encouraged to agree upon measures that further this end. For example, when asserting privilege on the same basis with respect to multiple documents, it is presumptively proper to provide the information required by this rule by group or category.”
Accordingly, categorical privilege logs are appropriate to use in that Court. “[A] categorical privilege log is adequate if it provides information about the nature of the withheld documents sufficient to enable the receiving party to make an intelligent determination about the validity of the assertion of the privilege.” Rekor Sys., Inc. v. Loughlin, No. 19-CV-07767 (LJL), 2021 WL 5450366, at *1 (S.D.N.Y. Nov. 22, 2021) (citation omitted). The categorial privilege log found to be acceptable by the Judge in Rekor contained groupings of multiple documents over discrete date ranges to and from individuals at identified firms that listed the general subject matter.
Plaintiffs’ proposal of permitting categorical logging of emails only where all emails “involved the same participants and subject matter” was inconsistent with the foregoing principles, since there was no requirement that all participants be identical for categorical logging to be appropriate.
On the other hand, Defendant’s proposal of only logging threaded emails was also inconsistent with the foregoing principles, since it is unlikely that the log would contain sufficient information for Plaintiffs to assess the claim of privilege for each email in the thread. However, given that the Court required the production of all responsive ESI, the parties were directed to meet and confer with respect to the privilege log protocol and agree to terms.