Elasticsearch, Inc. v. Floragunn GmBH

Background

Elasticsearch sought an order compelling Floragunn to produce a privileged document that Hendrik Saly, Floragunn’s former chief technology officer, and Jochen Kressin created in 2019 at counsel’s request. The court called the document the “Saly/Kressin PDF.” It concerned the origin of code involved in the litigation.

The parties had entered a court-approved stipulation restricting Saly’s participation in the case. The stipulation prohibited Saly from providing assistance, information, or evidence, directly or indirectly, to Floragunn’s testifying experts, and prohibited those experts from relying on such material.

Elasticsearch argued that Floragunn had conveyed the Saly/Kressin PDF’s contents to Floragunn’s technical expert, Dr. Owen Astrachan, violating the stipulation. Elasticsearch also relied on Federal Rule of Civil Procedure 26(a)(2)(B), which requires a testifying expert’s report to disclose facts or data the expert considered in forming opinions, including materials that were presented to or relied on by the expert.

Elasticsearch learned about the PDF through Kressin’s deposition testimony. It later identified references in Dr. Astrachan’s notes to “Word documents” and believed those documents were the Saly/Kressin PDF. Floragunn’s counsel said the documents were different, and said the Saly/Kressin PDF had never been shared or discussed with Dr. Astrachan. Counsel also explained that any overlap between the PDF and the expert’s report concerned the general subject of alleged copyright infringement and the alleged triviality of some code, not information supplied by Saly.

Court’s analysis

The court held that Rule 26(a)(2)(B) did not support production. Although the rule broadly covers materials an expert received, reviewed, read, or authored in forming an opinion, the court found no evidence that Dr. Astrachan considered the Saly/Kressin PDF. The court credited counsel’s representations that the PDF was never shared or discussed with Dr. Astrachan and noted that Kressin’s testimony supported those representations. The court therefore found the PDF outside the scope of the rule.

The court reached the same result under the parties’ stipulation. Elasticsearch offered speculation that information from Saly had reached Dr. Astrachan, but no evidence that Saly or Floragunn had directly or indirectly provided such information to the expert. The court declined to order production of a privileged document merely to allow Elasticsearch to investigate whether a violation had occurred.

Disposition

The court denied Elasticsearch’s motion to compel production of the Saly/Kressin PDF. Judge Yvonne Rogers did not order Floragunn to produce the document.