In re Bystolic Antitrust Litigation

USDC SDNY

DOCUMENT

SOUTHERN DISTRICT OF NEW YORK DOC #:

annnnne nannnnec cnanec □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□ DATE FILED:__ 3/9/2021

In re Bystolic Antitrust Litigation :

: 20-cv-5735 (LJL)

This Order relates to: All Actions : MEMORANDUM & ORDER

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LEWIS J. LIMAN, United States District Judge:

The parties have raised five issues with respect to the ESI protocol in this case, see Dkt.

Nos, 232-234: (1) whether parties may redact non-responsive information that is also Highly

Confidential, as defined by the parties’ protective order; (2) whether parties may omit to produce

wholly non-responsive documents that are attachments to responsive emails; (3) whether parties

may produce word documents in TIFF format and not in native format; (4) whether to set a

deadline for the production of a privilege log what the deadline should be; and (5) whether

parties must include in a privilege log entries for individual emails that are part of a chain when

the chain is logged. The Court addresses these issues in turn.

1. Parties may redact certain non-responsive information that is also Highly

Confidential, subject to certain conditions.

Defendants have proposed that a party should be permitted to redact non-responsive

material that is also Highly Confidential as the term is defined in the parties’ protective order at

Dkt. No. 148. The protective order defines Highly Confidential material as “any material, or

portion of such material, which could cause a significant competitive or commercial

disadvantage if shared with the Parties to this case.” Id. at 2; see id. (enumerating examples of

certain nonpublic, highly sensitive information).

“The weight of authority in this Circuit goes against allowing a party to redact

information from admittedly responsive and relevant documents based on that party’s unilateral

determinations of relevancy.” Christine Asia Co, Ltd. v. Alibaba Grp. Holding Ltd., 327 F.R.D.

52, 54 (S.D.N.Y. 2018) (internal quotation marks and citations omitted) (collecting cases). Such

is particularly the case where, as here, a protective order is in place. See Durling v. Papa John's

Int'l, Inc., 2018 WL 557915, at *9 (S.D.N.Y. Jan. 24, 2018)).

Defendants, however, have identified a number of examples of other similar large

pharmaceutical antitrust cases in which courts have permitted certain redactions over plaintiffs’

objections. See, e.g., In Re Namenda, No. 15-cv-7488, Dkt. No. 349 (S.D.N.Y. Aug. 9, 2017); In

Re Aggrenox, 14-md-2516, Dkt. No. 235 at 14 (D. Conn March 25, 2015). Defendants also

argue that they have “no interest in expending resources on redacting irrelevant information that

is not highly sensitive” and that, in essence, the provision will be self-policing. Due to the cost

of making redactions, the Defendants will not be promiscuous in the redactions they make.

Dkt. No. 234 at 2.

The Court is persuaded that this case is likely to require Defendants to produce large

volumes of documents that are (1) non-responsive and (2) also Highlight Confidential, in the

sense defined by the parties as competitively sensitive, and the disclosure of which to the Parties

in the case could cause a significant competitive or commercial disadvantage to the party making

the production. Therefore some provision like that proposed by Defendants is appropriate. At

the same time, however, Defendants’ argument proves too much. As the Court understands it,

Plaintiffs’ concern is not in the number of redactions but in how Defendants exercise the

redaction authority. Plaintiffs are entitled to information, otherwise non-responsive, that

Plaintiffs reasonably believe place the responsive information in context. It cannot be left to

Defendants’ unfettered discretion to determine what, in their view, is necessary to place the

information in context. For example, information that provides necessary context to responsive

information may include, without limitation, content that indicates the recipients of responsive

information or date or circumstances under which responsive information was created or the

relative importance of the responsive information (e.g., is it a small part of a sea of information

or is it one of a few items that would be of high importance).

Accordingly, the Court approves the Defendants’ proposal but with two important

additional conditions, similar to that adopted in the cases Defendants cite.

First, redaction of non-responsive and Highly Confidential information is not permitted

where such redaction removes content that places the responsive information in context. That

must be made explicit in the proposed ESI protocol.

Second, any redaction of non-responsive and Highly Confidential information must be

accompanied by a statement by the producing party of the general nature of the redacted

information and the reason for which it is deemed non-responsive and Highly Confidential

sufficient for the receiving party to make an objection to the redaction. For examples of

adequate descriptions as to why certain content may be deemed Highly Confidential, the parties

may consult the examples of such content provided in the protective order. See Dkt. No. 148 at

2-3. For example, if the producing redacts information that is non-responsive and Highly

Confidential because it concerns projected future sales for an unrelated drug and is not necessary

to put the responsive information in context, the producing party shall replace the redacted

information with a notation stating, in substance, “discussion of projected future sales for an

unrelated drug.” This practice will ensure that a party receiving redacted documents will have

some basis for challenging a redaction on grounds that it either responsive or not Highly

Confidential or is necessary to put the responsive information in context. It should also help

ensure that the Defendants are not too promiscuous in their use of the authority permitted by the

Court. (If the Defendants abuse this authority, the Court reserves the right to require the

production of all of the redacted information.)

2. Parties may withhold documents that are attached to emails that contain entirely

non-responsive information.

Parties are permitted to withhold documents that are attached to emails that are entirely

non-responsive. This will create efficiencies in discovery and will not prejudice either party;

Defendants’ proposal includes protections including provision of a slip-sheet and metadata to

identify any document withheld on that basis, and reserves the right of all parties to request a

limited number of non-responsive attachments for review to ensure against any abuse.

3. Parties may produce word documents in TIFF + format

Defendants raise security and manageability concerns related to producing word

documents in their native format, and Defendants’ proposal shall be adopted with the exception

elaborated below. With one exception identified below, Plaintiff has not demonstrated that it

will be prejudiced by such practice. (Defendants’ proposal to include a production “containing

all of the extracted text” from any Word document produced, see Dkt. No. 234 at 3, undermines

Plaintiff’s argument that it will be limited in its ability to search the relevant documents.)

Plaintiffs aver that “[p]roduction of native Word documents is particularly crucial here

given the importance of the redlined draft agreements exchanged during the negotiations of the

challenged agreements.” Dkt. No. 233 at 2. Notwithstanding the general practice outlined in the

prior paragraph, Defendants shall produce any draft agreements (including term sheets) in native

format so that any redline information is apparent to the receiving party. In addition to all draft

agreements, any Word document containing redline edits shall be produced in native format.

4. Privilege logs shall be produced within twenty-one (21) days of the corresponding

production

Rule 26 of the Federal Rules of Civil Procedure provides that when a party withholds

documents on the grounds of privilege, it must both “expressly make the claim” and “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). In addition, Local Civil Rule 26.2

requires that a party asserting a privilege in response to a document request provide:

(i) the type of document, e.g., letter or memorandum; (ii) the general subject matter of the

document; (iii) the date of the document; and (iv) the author of the document, the

addressees of the document, and any other recipients, and, where not apparent, the

relationship of the author, addressees, and recipients to each other . . .

Loc. Civ. R. 26.2(a)(2)(A); see also S.E.C. v. Yorkville Advisors, LLC, 300 F.R.D. 152, 157

(S.D.N.Y. 2014). “In addition, the Local Civil Rules provide that a party claiming a privilege

must provide the foregoing information in writing and within the time the response to the

discovery request is due, unless the court orders otherwise.” Yorkville Advisors, 300 F.R.D. at

157; See Loc. Civ. R. 26.2(b). “Thus, ‘a privilege log must be received either within thirty days

of a request for documents or by a date that is agreed upon by the parties or set by the court.’”

Id. (quoting Strougo v. BEA Assoc., 199 F.R.D. 515, 521 (S.D.N.Y. 2001)).

As Plaintiffs point out, their proposal to permit production of a privilege log within

twenty-one days of the corresponding production represents a three-week extension of these

default rules. Although the Court would have accepted an agreement by the parties to delay the

production of privilege logs until after the last production of documents, Defendants have not

offered sufficient reason to permit a further extension that that already agreed to by Plaintiffs, in

the absence of an agreement between the parties. The service of privilege logs with a document

production permits the parties to meet and confer at an early stage regarding claims of privilege,

eliminating time-consuming disputes at the end of discovery. Plaintiffs’ proposal that privilege

logs should be served within 21 days of each document production shall be adopted. As

Plaintiffs note, this practice will not unduly burden Defendants, as they will have to review and

determine privilege claims for responsive documents on an ongoing basis and before each

production.

To realize the benefit of this practice, however, neither party should be permitted to delay

its review of another party’s privilege logs until the end of all of the productions, which would

effectively create needless work for the producing party and eliminating the benefits of early

production of privilege logs. If the Plaintiffs want Defendants to produce privilege logs with

each production, Plaintiffs will need to review those privilege logs after each production. To the

extent that any receiving party objects to designations in a privilege log of a producing party,

they shall identify those objections to the producing party within thirty (30) days of the service of

a privilege log and meet and confer regarding the claims of privilege. Failure to make an

objection to the producing party to a claim of privilege within this time period will result in a

waiver of any challenge to the assertion of privilege.

5. Privilege logs must include an entry for each email withheld as privileged.

Each email in an email thread “is a separate communication, for which a privilege may or

may not be applicable.” Baxter Healthcare Corp. v. Fresenius Med. Care Holding, Inc., 2008

WL 4547190, at *1 (N.D. Cal. Oct. 10, 2008). Requiring privilege logs to include only one entry

for each email thread containing withheld emails would limit the ability of the parties and the

Court to effectively evaluate the basis of the privilege asserted. As another district court has

explained:

A string of emails, after all, is not just a single communication. It reflects a series of

different communications that, because of the way in which it was printed or maintained,

happens to exist as one document. Logging the details of only the ultimate, top, email

would not accurately state how many separate communications are included in the

withheld document, and who received which of those communications. Such an approach

may deprive Plaintiffs, and a reviewing Court, of the ability to assess the claim of

privilege.

United States v. Davita, Inc., 301 F.R.D. 676, 685 (N.D. Ga. 2014), reconsid. granted in part on

other grounds, 2014 WL 11531065 (N.D. Ga. May 21, 2014); see id. (“The emerging majority

view appears to be that individual emails within a string should be separately logged in some

fashion.”) (collecting cases). Accordingly, each individual email withheld as privileged within

an email thread must be logged.

The parties are ORDERED to meet and confer and propose a revised stipulation and

proposed order regarding the production of ESI and hard copy documents within one week of the

date of this order. The Clerk of Court is respectfully directed to terminate the motion at Dkt. No.

234.

SO ORDERED.

Dated: March 9, 2021 __________________________________

New York, New York LEWIS J. LIMAN

United States District Judge