The Sanborn Library LLC v. ERIS Information Inc.
- Ona Wang
- 1:19-cv-02049
- U.S. District Court · Southern District of New York
- 6
In The Sanborn Library v. ERIS, Judge Wang granted in part in-camera review but denied other discovery requests as premature.
ERIS and EDR are affected by the document-selection, production, and in-camera review procedures; the order did not decide whether the crime-fraud exception ultimately applies to any document.
What happened
The Sanborn Library LLC v. ERIS Information Inc. involves ERIS’s request for privileged documents from The Sanborn Library LLC and Environmental Data Resources, LLC. ERIS argued that the documents could show that the copyright lawsuit was fraudulent and intended to harm competition.
The court found that ERIS presented a reasonable basis to suspect that some maps may have been out of copyright before the lawsuit, that this information may have been concealed, and that communications with counsel may have furthered the suspected fraud. The court therefore concluded that in-camera review—private review by the court—was appropriate to evaluate the crime-fraud exception to attorney-client and work-product privilege.
Judge Ona T. Wang granted in part ERIS’s request for in-camera review, denied as premature its requests to obtain documents and conduct a deposition, and ordered the parties to select documents for the court’s review. The court may later require review of additional documents.
The detailed version
- The Sanborn Library LLC v. ERIS Information Inc. · No. 1:19-cv-02049
- Ona Wang
- Aug. 30, 2022
Background
ERIS Information Inc., Eco Log Environmental Risk Information Services, Ltd., and ERIS Information Limited Partnership, collectively called ERIS, moved to compel The Sanborn Library LLC and Environmental Data Resources, LLC, collectively called EDR, to produce documents that EDR had withheld as privileged. ERIS also requested that the court conduct an in-camera review of up to 1,288 documents, order production of documents that qualified for the crime-fraud exception, permit a deposition of EDR under Federal Rule of Civil Procedure 30(b)(6), and require disclosure of oral or unwritten communications between EDR and its lawyers concerning the privileged information.
The underlying action includes EDR’s copyright claims alleging that ERIS copied EDR’s map collection to gain an unfair competitive advantage. ERIS asserted counterclaims alleging anticompetitive conduct, false advertising, and price discrimination under federal and New York statutes.
Legal standard and analysis
The crime-fraud exception can remove attorney-client or work-product protection from communications used to further a crime or fraud. Before reviewing privileged documents privately, the court required ERIS to provide evidence supporting a reasonable belief that the review could reveal evidence establishing that exception. The required showing was not a stringent one.
The court found that ERIS met this threshold. ERIS submitted documents suggesting that EDR may have known that at least some Sanborn maps were out of copyright before filing the lawsuit; may have hidden or omitted information about which maps were protected; and may have used those practices to encourage customers to obtain maps only from EDR. The court also found a reasonable basis to suspect that EDR’s communications with counsel may have furthered the suspected fraud, including because EDR had referred to communications with counsel when asserting that it lacked knowledge about the copyright status of the Sanborn map collection.
Ruling
The court denied as premature ERIS’s requests for production of documents and a Rule 30(b)(6) deposition because those requests could not be decided before the court reviewed the documents. The court granted in part ERIS’s request for in-camera review but rejected ERIS’s proposed procedure involving 1,288 privilege-log entries.
Instead, ERIS had to identify ten entries from its exhibit to EDR by September 16, 2022. EDR then had to identify ten entries to ERIS by September 30, 2022. EDR was ordered to provide the documents corresponding to both parties’ selected entries to the court by October 14, 2022, along with a letter brief explaining why each document was privileged and why the crime-fraud exception did not apply. After reviewing the 20 documents, the court could identify up to 10 additional entries for further review. The Clerk was directed to close ECF 159.
Read the full 6-page opinion on CourtListener, the free public archive maintained by the Free Law Project.