Amley v. Sumitomo Mitsui Banking Corporation

Background

Ted Amley and Sumitomo Mitsui Banking Corporation (SMBC) asked the court to resolve several discovery disputes. Amley challenged SMBC’s privilege log and redactions and sought additional documents, a protective order against a forensic examination of his computers and electronic devices, an extension for expert discovery, and other relief. SMBC sought additional documents from Amley, a forensic examination, and the return of privileged documents that it said were produced inadvertently. SMBC also requested that certain email materials remain sealed.

Rulings on privilege logs and redactions

The court ordered SMBC to serve updated privilege logs by December 14, 2020, covering documents withheld entirely or produced in redacted form based on attorney-client privilege or the work-product doctrine. The logs could group documents by content where permitted, but they had to identify the relationships among authors, addressees, and recipients, including their affiliations and titles or roles and which were attorneys acting as attorneys. The court stated that confidentiality alone did not permit withholding or redacting documents without a stipulation or court order.

The court was not clear whether Amley had withheld or redacted documents on privilege grounds. If he had, it ordered him to provide a privilege log by the same date. After receiving SMBC’s logs, the parties were ordered to meet and confer in real time and in good faith about any remaining privilege disputes. If they could not resolve those disputes, they had to file letter-motions under the schedule stated in the order.

SMBC was also ordered to serve a clawback letter by December 14 concerning privileged documents it claimed had been inadvertently produced without adequate redactions.

Production requests and forensic examination

The court ordered Amley to produce by December 14 all responsive documents in his possession, custody, or control for Requests for Production 29 and 30. Those requests sought documents Amley took or received from SMBC and SMBC documents he sent to a personal email address. Because SMBC had demanded those documents and obtained an order compelling their production, the court held that Amley’s compliance, including assistance from his counsel, would not violate New York professional-conduct rules concerning confidentiality.

The court did not authorize SMBC’s requested forensic examination of Amley’s personal computers and electronic devices. It found that SMBC had not made a sufficient showing to justify that intrusive and burdensome procedure. Amley therefore did not have to make the devices available for forensic inspection at that time, although the order did not remove his obligation to preserve potentially relevant documents.

The court declined to compel additional production concerning investigations, lawsuits, and other SMBC employees. It found that most of Amley’s requests were significantly overbroad and noted that he had not offered to narrow them. It also found that he sought to compel responses to supplemental requests before the response period had expired.

Schedule and expert discovery

Amley sought an extension of the pretrial schedule so he could retain an ethics attorney as an expert witness concerning allegations that he violated New York professional-conduct rules. The court denied that extension request, but without prejudice to renewal by December 14, 2020, if Amley could show that the proposed testimony was not barred by the cited rule against expert opinions interpreting and applying domestic law and that he had not waited too long to request expert discovery.

The court modified the deposition schedule, allowing the parties to reschedule Amley’s deposition for a mutually convenient date or dates in January 2021, subject to the fact-discovery cutoff of January 22, 2021.

Sealing

The court found that sealing was warranted for both of SMBC’s requests under the applicable standard. It ordered that the wholly unredacted email chain at Docket No. 45 remain sealed at the ex parte viewing level. It directed the clerk to limit access to three other email chains at Docket Nos. 40-17, 40-18, and 40-19 to the court, Amley, and SMBC, and to close the motion at Docket No. 40.

Disposition

The court concluded that the parties’ letter-motions seeking orders compelling discovery and protective orders were granted in part and denied in part to the extent described in the order.