In re Bystolic Antitrust Litigation
- Lewis Liman
- 1:20-cv-05735
- U.S. District Court · Southern District of New York
- 5
In re Bystolic Antitrust Litigation: Judge Liman set discovery rules for redactions, attachments, file formats, privilege logs, and email threads.
The parties in all actions within the Bystolic antitrust litigation, particularly those producing or reviewing discovery documents and privilege logs.
What happened
In In re Bystolic Antitrust Litigation, the court resolved five disputes about the parties’ discovery procedures for electronically stored information and documents. The disputes concerned redacting highly confidential nonresponsive information, withholding entirely nonresponsive email attachments, producing Word documents, setting privilege-log deadlines, and logging emails within threads.
The court allowed redactions of nonresponsive highly confidential information, but required context-preserving limits and descriptions of the redacted material. It allowed withholding entirely nonresponsive attachments with identifying information and limited review rights; generally allowed Word documents in TIFF format but required native-format production of draft agreements and documents with redline edits; required privilege logs within 21 days of each production; and required separate entries for each privileged email in a thread.
Judge Lewis J. Liman ordered the parties to meet and propose a revised discovery agreement within one week and directed the clerk to terminate the motion at Docket 234.
The detailed version
- In re Bystolic Antitrust Litigation · No. 1:20-cv-05735
- Lewis Liman
- Mar. 9, 2021
Background
The court addressed five issues concerning the parties’ protocol for producing electronically stored information (ESI) and hard-copy documents in the antitrust litigation. The opinion states that the issues were raised in Docket Nos. 232–234 and that the order related to all actions.
Rulings on the ESI protocol
1. Redactions. The court approved the defendants’ proposal to redact information that was both nonresponsive and “Highly Confidential” under the parties’ protective order. The court imposed two conditions:
- A party could not redact such information if doing so removed material needed to place responsive information in context, such as information about recipients, timing, circumstances, or relative importance. - The producing party had to describe the general nature of the redacted information and explain why it was considered nonresponsive and highly confidential, sufficiently to allow an objection.
The court stated that it could later require production of all redacted information if the defendants abused this authority.
2. Nonresponsive attachments. The parties could withhold an attachment to an email when the email itself contained entirely nonresponsive information. The producing party’s proposal included a slip sheet and metadata identifying documents withheld on that basis, as well as the possibility of limited requests to review some withheld attachments.
3. Word documents. The court adopted the defendants’ proposal to produce Word documents in TIFF format rather than native format, subject to an exception. Draft agreements, including term sheets, and any Word document containing redline edits had to be produced in native format so that the edits would be visible. The proposal also called for production of extracted text from Word documents.
4. Privilege logs. A privilege log is a record describing documents withheld as privileged without revealing the privileged information. The court required each privilege log to be produced within 21 days after the corresponding document production. Any receiving party had to identify objections to the producing party within 30 days after the privilege log was served and meet and confer about the privilege claims. The court stated that failing to object within that period would waive a challenge to the privilege assertion.
5. Emails in a thread. The court required a privilege log to include a separate entry for each email withheld as privileged within an email thread. It reasoned that each email is a separate communication and that logging only the top email would prevent the parties and the court from effectively evaluating the privilege claim.
Further order and disposition
The parties were ordered to meet and confer and propose a revised stipulation and proposed order concerning the production of ESI and hard-copy documents within one week of the order’s date. The clerk was directed to terminate the motion at Docket 234. The opinion does not state that the motion was granted or denied.
Read the full 5-page opinion on CourtListener, the free public archive maintained by the Free Law Project.