In re ACTOS Antitrust Litigation

Background

This multidistrict antitrust class action concerns allegations that Takeda prevented competitors from timely marketing generic versions of ACTOS by falsely describing two patents to the Food and Drug Administration. The plaintiffs are drug purchasers who allege that they paid monopoly prices for ACTOS after the patent on its active ingredient expired.

The parties’ 2015 discovery protocol required production of electronically stored information in native format, together with specified metadata and coding fields. It also required de-duplication of exact duplicate documents, but it did not authorize production of only the most-inclusive emails in an email thread.

Beginning in February 2022, Takeda produced nonprivileged documents from 25 agreed custodians, including six in-house lawyers. Takeda used email threading, meaning it reviewed and produced the most-inclusive email in a thread. Plaintiffs sought an order requiring production of earlier-in-time emails and associated metadata. They also sought privilege-log entries for the earlier emails and other emails withheld or redacted as privileged.

Email-threading ruling

The court held that the parties’ discovery protocol did not permit Takeda’s email-threading approach. The court explained that excluding earlier emails also excluded their metadata, which reduced plaintiffs’ ability to search correspondence by date, identify recipients, and determine whether anyone had been blind-copied.

The court declined to impose email threading on plaintiffs. It found that producing the earlier emails would create some additional burden for Takeda, but that the burden was not undue because Takeda had agreed to the discovery protocol and likely had already reviewed many of the emails at issue. The court therefore ordered Takeda to produce all responsive electronically stored information, including earlier-in-time emails.

Privilege-log ruling

The court did not adopt either party’s proposed privilege-log approach. Federal Rule of Civil Procedure 26(b)(5) requires a party withholding documents as privileged to describe them sufficiently for the opposing party to assess the privilege claim. The court also discussed the local rule allowing categorical privilege logs—logs that group documents by category when the information provided is sufficient to evaluate the privilege claim.

The court found plaintiffs’ proposal too restrictive because categorical logging does not require identical participants and subject matter for every email. It also found Takeda’s proposal to log only threaded emails inadequate because such a log might not provide enough information to evaluate the privilege claim for each email.

Because the required production of earlier emails would affect the scope of the privilege log, the court directed the parties to meet and confer about a revised privilege-log protocol. They had to file an agreed protocol by April 15, 2022, or file competing proposals by that date if they could not agree.

Disposition

The court granted in part and denied in part plaintiffs’ letter motion. It ordered Takeda to produce all responsive electronically stored information, including earlier-in-time emails, and directed the parties to seek agreement on a privilege-log protocol. The opinion was signed by United States Magistrate Judge Stewart D. Aaron.