Improper Redaction of Emails Justifies Reopening Discovery for Further Deposing of Corporate Executives

The court granted plaintiffs’ motion to reopen the depositions of two defendant executives because an entity defendant improperly redacted an email chain on a claim of privilege. “⁠[The court’s prior discovery order] established protocols for handling privileged documents and required the defendants to certify that every privileged document appearing on a privilege log has been reviewed by an attorney. In the following weeks, the defendants began to de-designate significant numbers of documents chosen as samples by the plaintiffs and other redacted documents, even after certifying to the court that a lawyer previously reviewed each document for privilege. The [relevant] email chain was one of the redacted documents subsequently de-designated by [a defendant]. [The defendant] discovered and exploited a loophole in the certification process. In [the court’s discovery order] the privilege log protocol did not require the defendants to log redacted documents where the privilege was clearly asserted on the face of the document. In effect, [the defendant’s] certification did not cover subsequently de-designated redactions that did not appear on the privilege log. . . . Because the plaintiffs did not possess the unredacted version of the . . . email chain, the plaintiffs could not effectively question [the two executives] about any efforts to exclude executive compensation from the public record. The court seriously questions how any attorney associated with [the defendant] initially determined that the email chain was privileged. There appears to be no basis whatsoever to assert a claim of privilege as to the . . . email chain.”

In re: Blue Cross Blue Shield Antitrust Litigation, 2-13-cv-20000 (ALND 2018-03-09, Order) (T. Michael Putnam)

2018-03-13T12:04:02+00:00 March 13th, 2018|Antitrust, Docket Report|