Owen v. Elastos Foundation

Background

The order followed a discovery conference concerning disputes in this putative class action. The opinion addresses defendants’ privilege logs, allegedly missing attachments and links from messaging and file-sharing platforms, documents previously withheld because of China’s Personal Information Protection Law, discovery deadlines, and a request to keep an exhibit under seal.

Discovery and privilege logs

The court ordered defendants, by February 10, 2023, to re-review all documents withheld as privileged and identified on their privilege logs. Defendants had to produce documents for which they could not justify privilege, including all versions of and communications concerning the Stradling firm’s “Howey Memo.” If privilege applied only to separable portions of a document, defendants had to redact and produce the remainder. Defendants also had to provide a revised privilege log covering documents they continued to withhold and complying with Local Civil Rule 26.2, while preserving the existing document identifiers. The order excused defendants from logging privileged documents prepared by or sent to or from their litigation counsel of record in this action if those documents were dated on or after January 31, 2019.

Under Federal Rule of Civil Procedure 37(a)(5), the court ordered defendants to pay plaintiffs’ reasonable expenses, including attorneys’ fees, incurred in obtaining the relief concerning the privilege dispute. By February 10, 2023, plaintiffs had to either report that the parties had resolved the fee issue or submit a fee application with authenticated time records, evidence concerning the reasonableness of the requested rates and whether plaintiffs had paid or agreed to pay them, and documentation of other claimed expenses.

Missing attachments, links, and account information

By February 1, 2023, plaintiffs had to give defendants three examples of WeChat message threads that appeared to lack attachments or links and originated from an individual defendant, an Elastos board member, or another custodian whose cooperation with counsel was not in question. By February 15, 2023, defendants had to produce the missing attachments or links, with screenshots permitted. If all of the examples proved to be inconsequential emoji-type images, defendants would not have to make further production of missing WeChat attachments or links. The court reserved ruling on fees concerning these missing attachments and links.

By February 24, 2023, defendants had to provide one or more sworn statements about the Google Drive, Dropbox, and Zoom accounts searched for discovery. The statements had to identify the accounts, their owners or users with access, search dates, and whether defendants produced all non-privileged documents identified by search terms or conducted an additional relevance review. For the Elastos Zoom account, defendants had to state whether they searched it and, if not, identify people who had account credentials or access privileges, including their last known contact information. Defendants also had to provide, for each of the 19 agreed-upon custodians, the date of any preservation notice and a copy of each written litigation-hold communication, subject to limited redaction of privileged material unrelated to preservation.

Deadlines and sealing

The court extended defendants’ deadline to comply with its January 11, 2023 order concerning documents previously withheld because of the Personal Information Protection Law to February 24, 2023. It extended the deadline to complete all fact discovery to April 14, 2023 and directed the parties to promptly file a joint proposed scheduling order with revised remaining pretrial deadlines.

The court kept the unredacted version of plaintiffs’ Exhibit 22 under seal. The redacted material consisted of non-parties’ email addresses and did not affect the court’s determination of the discovery disputes. The court stated that all relief not expressly granted was denied and directed the clerk to close the letter motion concerning the sealing request.

Disposition and classification

This was a discovery and related case-management order, not a decision on the underlying claims. Magistrate Judge Barbara Moses ordered the specified discovery, awarded expenses for the privilege-log dispute, reserved the separate fee issue concerning missing attachments and links, extended deadlines, and kept Exhibit 22 under seal.