Apotheco Pharmacy Durham LLC v. Ahmed

Background

The court’s December 6, 2024 order established a process for reviewing a thumb drive. A neutral forensic vendor, Capsicum, was to create a forensic image, have Ahmed identify Apotheco property, search for documents containing “Apotheco” or “Apotheco” with a wildcard, exclude communications protected by attorney-client privilege, and provide logs for excluded communications and documents Ahmed withheld as nonresponsive.

Apotheco’s counsel reported that Capsicum had provided a log of 435 withheld files. The request addressed 240 files: 38 files Ahmed marked nonresponsive and 212 files he first identified as Apotheco property but later changed to nonresponsive. Apotheco said these files contained the search terms and were mainly PDF and Excel files, and argued that Ahmed had improperly prevented the vendor from including the original file names in the log.

Ahmed stated that the files had been provided to a lawyer for legal advice, that he had changed their electronic names to reflect his concerns, and that the files were attorney-client communications or attorney work product. Apotheco argued that sending documents to a lawyer did not make the underlying documents privileged and that the log did not contain enough information to evaluate the privilege claims.

Apotheco’s Requests

Apotheco asked the court to order an in-camera review, meaning a private review by the court, of the 240 “blue” and “purple” documents. It also asked the court to determine whether the documents were Apotheco property that had to be returned and removed from Ahmed’s devices and accounts. In addition, Apotheco asked the court to hold Ahmed in contempt and require him to pay the vendor’s costs.

Ruling

The court granted in part and denied in part Apotheco’s request. It declined to conduct an in-camera review at that stage. Instead, the court ordered Capsicum to provide the court privately with an Excel log of documents Ahmed withheld as privileged. The log had to include the documents’ original file names rather than “[Withheld].”

The log was limited to documents Ahmed withheld as privileged. It did not need to include documents Ahmed withheld as entirely nonresponsive, meaning documents he said were not Apotheco property regardless of privilege. The court stated that a search-term hit did not necessarily establish that a document was Apotheco property because the review process was intended to remove false hits, including documents that merely referred to Apotheco.

Capsicum was ordered to send the log only to the court by email, not to either party or their counsel, by February 18, 2025. Apotheco’s counsel was ordered to serve the order on Capsicum by 5:00 p.m. on February 10, 2025. The opinion text does not separately state the disposition of Apotheco’s contempt and vendor-cost requests.