An In-Depth Look at the In re Actos End Payor Antitrust Litigation and the Production of Non-Threaded Emails | EDRM – Electronic Discovery Reference Model

As I mentioned in a recent in-depth coverage of one of the cases here, EDRM’s May Monthly Case Law Webinar presented by Tom O’Connor (Director of Gulf Legal Technology Center), Mary Mack (CEO and Chief Legal Technologist of EDRM), Hon. Andrew Peck (retired), senior counsel at DLA Piper, had some very good cases to discuss.

Another case we discussed in this webinar was In re Actos End Payor Antitrust Litig., which presented several interesting eDiscovery considerations, including the use of ESI protocols, the suspension of the production of non-inclusive emails in a thread, and the use of categorical privilege logs. Let’s examine the case in depth here.

In re Actos End Payor Antitrust Litig.

In this case (details and link to full decision here), New York Magistrate Judge Stewart D. Aaron, noting that “Takeda made its first streaming productions using the email thread even though the discovery protocol, in its terms, did not permit such an approach” and observing that “Takeda’s exclusion of less included emails from production resulted in the exclusion of metadata associated with previous emails in a chain”ordered Takeda to produce “all ESIs responsive to requesters, including past emails”. He also directed the parties to meet and discuss privilege logs, related to the threaded issue, while discussing the idea of ​​using categorical privilege logs, stating: “categorical privilege registers are put to good use in this Court”.

With that in mind, I mentioned to Tom that many eDiscovery vendors tout their ability to set aside less inclusive emails in a thread and limit review to only fully inclusive emails and asked him if he thought that decision would change if the parties would continue to use it. feature or change how they use it.

Tom said:

Well, I hope so because I’ve never been a fan of this feature for two reasons. First, I think this is a great example of how techs come up with a great tech feature that maybe they really shouldn’t. Is this something you want tech staff to do automatically without anyone looking at the actual email body? The idea is interesting, but I’m not hot about it.

Tom O’Connor, Director of the Gulf Legal Technology Center

Continuing, he says: “The second reason is the one that the Court has elucidated, which is that it is stripping metadata from older versions, which may be important, critical and certainly relevant. So, I don’t like that. What really interests me here , however, it’s that the protocol the parties had agreed to didn’t allow it, so in a way it begs the question: did the customer know the tech company was doing this, even if the customer, lawyers, had agreed to do something different in the protocol? So if this decision leads to better control of some of the technical processing of data, I’m all for it.

Justice Peck added: “I don’t think the ESI protocol prohibited saving emails as one, because it was completely silent. Either they didn’t think about it or they didn’t achieve harmonization. And that left the matter for the court to decide.

I asked Justice Peck about the use of categorical privilege logs, when parties should consider using them, and whether there are reasons NOT to use them, even for cases with many privileged documents.

Judge Peck began by saying: “It’s no coincidence that our local rule on preferred logs was changed to encourage parties to cooperate and using categorical logs was appropriate at a time when I was the Southern District Co-Chair of the Local Rules Committee of the south/east district. If I was reviewing this today, I would probably say consider using categorical logs or metadata plus privilege logs.

Continuing, he says:

But anyway, the problem with categorical logs is that can the parties agree on the appropriate categories?… The universal category is for documents between the client and outside counsel after the trigger date, whether it is the date the complaint was filed or some other date. appropriate date. It’s easy. And usually you don’t even save anything. You just said that these are not on the table. But what information will be given for each category? Categories work best when any factual or legal issue raised by the category is then ripe for judicial resolution. Thus, the category may be all communications between the lawyer’s client and his outside public relations firm. You don’t need much more journaling than that to present. The question for the judge to resolve is is the outside PR firm honoring the privilege or is it violating the privilege? »


Justice Peck also added: “A category of ‘in-house counsel to client employees’ probably isn’t very useful because it doesn’t clearly distinguish between business advice, legal advice and, worse, perhaps mixed business and legal advice. But the so-called traditional document-by-document privilege log became mainstream somewhere in the “dark ages” of the 1990s, before {FRCP} 26(b)(5) was inserted into the rules. The Advisory Committee notes make it clear that document by document may be appropriate if there is not much documentation of the privilege, but in other cases categorical or other means may be appropriate.

I mentioned to Mary that the dispute associated with the exclusion of less inclusive emails only came to light when Takeda started producing documents and asked her what the parties could do (if anything) to eliminate potential conflict areas in an ESI protocol. before production begins.

They should generate a production sample and do it very early, not on the eve of the discovery deadline.

Mary Mack, CEO, EDRM

Mary said: “They should generate a production sample and do it very early, not on the eve of the discovery deadline. But aside from categorical privilege logs and metadata involved in individual emails contained in the thread, there are also sometimes disputes over {issues like} spreadsheets with formulas, PowerPoints with comments and notes, words with track edits, whether or not you get the bcc’s and cc’s (as in this case), calendar items, and of course, of course the discussions. Commemorating it in a planning order is great, or at least by memo after the meeting and the conference. And I would just say category logs are a fabulous thing and having the ability to have dates and senders/receivers and subject line and all that metadata for parts I think is really important . I think it is important that samples are taken early so that a reaction can occur outside of movement practice.

Of course, an audience member noted that you can remove non-inclusive emails for review, while still producing them if they’re in threads with responsive inclusive emails. Whichever way you choose to approach them, it’s important to be on the same page with opposing counsel so you don’t have to redo the productions!

In re Actos End Payor Antitrust Litig. was another interesting and fun case to discuss, and you can follow our full discussion of this and other interesting cases from May 2022 here. This case sparked an interesting discussion about handling non-inclusive email and the potential benefits of categorized privilege logs. Look for coverage of more cases on eDiscovery Today and discussion of those cases on an upcoming EDRM jurisprudence webinar.

Our next webinar will be on Thursday, July 28 at 1:00 p.m. ET – feel free to check out the case topics and get the registration link here!

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