In the case In re Actos End Payor Antitrust Litig., No. 13–CV–9244 (RA) (S.D.N.Y. March 30, 2022), New York Magistrate Judge Stewart D. Aaron, observing that “Takeda’s exclusion of lesser included emails from production has resulted in the exclusion of the metadata associated with earlier emails in a chain”, ordered Takeda to produce “all responsive ESI to Plaintiffs, including earlier-in-time emails”. He also ordered the parties to meet and confer on privilege logs, related to the email threading issue.

Case Discussion

This complex antitrust class action over alleged false patent claims made to the FDA regarding Takeda’s diabetes drug ACTOS was filed on December 31, 2013. On March 18, 2015, the Court approved the Discovery Protocol that the parties had proposed, which called for the production of ESI in native format, together with metadata and coding fields, and for the parties to de-duplicate the ESI that is produced, but it stated nothing about producing only the most-inclusive emails in email threads.

After motion practice and two appeals to the Second Circuit, Takeda finally began to make multiple rolling productions in February 2022 of non-privileged documents from 25 agreed custodians, including six in-house lawyers. In its production, Takeda used email threading, “by which a party reviews and produces the most-inclusive email in a thread.” The plaintiffs objected and filed a motion to compel Takeda to produce lesser included emails and their associated metadata, as well as “privilege log entries for earlier-in-time emails that are part of email threads redacted or withheld for privilege.”

Judge’s Ruling

Judge Aaron began his discussion regarding the email threading dispute by stating: “The first issue before the Court, i.e., regarding email threading, highlights the importance of negotiating a comprehensive ESI protocol before data production is undertaken. The issue arises here because Takeda made its initial rolling productions using email threading even though the Discovery Protocol, by its terms, did not permit such approach.”

Continuing, Judge Aaron stated: “Takeda’s exclusion of lesser included emails from production has resulted in the exclusion of the metadata associated with earlier emails in a chain (which may be weeks or even months prior to the last email in a chain)…This exclusion materially has reduced Plaintiffs’ ability to search for all correspondence within a date range. In addition, in certain email chains, only the sender of particular emails earlier in a chain are reflected, and not the recipients of such emails…Finally, Takeda’s email threading has removed Plaintiffs’ ability to see if anyone was blind-copied on lesser included emails, even though this information was among the metadata the parties agreed in the Discovery Protocol to produce.”

Noting that “Plaintiffs were not provided the opportunity to negotiate how email threading might be accomplished in an acceptable manner”, Judge Aaron ruled: “In the circumstances presented, and based upon careful review of the parties’ submissions, the Court, in its discretion, declines to impose email threading on Plaintiffs. Moreover, although the Court recognizes that the production of earlier-in-time emails will cause some additional burden on Takeda, the Court finds that any additional burden is not undue since Takeda agreed to the Discovery Protocol and likely already has reviewed many of the emails at issue. Thus, Takeda shall produce all responsive ESI to Plaintiffs, including earlier-in-time emails.”

As for the privilege log dispute, Judge Aaron stated: “because the Court now is requiring Takeda to produce earlier-in-time emails, which will affect the scope of the privilege log, the parties may be able to reach an agreement on the privilege log issue. Accordingly, the parties are directed to meet and confer to seek to agree on a revised privilege log protocol, taking into account the Court’s ruling above.”

Judge Aaron also discussed the idea of using categorical privilege logs, stating: “categorical privilege logs are appropriately used in this Court”, while rejecting both the plaintiffs’ proposed approach (“Plaintiffs’ proposal of permitting categorical logging of emails only where all emails ‘involved the same participants and subject matter’…is inconsistent with the foregoing principles, since there is no requirement that all participants be identical for categorical logging to be appropriate”) and Takeda’s proposed approach (“Takeda’s proposal of only logging the threaded emails…also is inconsistent with the foregoing principles, since it is unlikely that the log would contain sufficient information for Plaintiffs to assess the claim of privilege for each email in the thread”).

So, what do you think? Does this ruling change your thinking in how lesser included emails in email threads should be treated in review and production?  Please share any comments you might have or if you’d like to know more about a particular topic.

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