Insulet Corp. v. EOFlow Co.
Insulet Corp. v. EOFlow Co.
2024 WL 5442368 (D. Mass. 2024)
October 23, 2024
Hedges, Jessica D., United States Magistrate Judge
Summary
The court denied Defendants' request for an order requiring Plaintiff to produce unredacted versions of previously withheld and redacted documents, finding that the majority of the privilege withholdings and redactions were consistent with a previous court order. The court also ordered Plaintiff to re-produce five documents for in camera review, as they had been inadvertently produced in native format without any proposed redactions.
Additional Decisions
INSULET CORPORATION, Plaintiff,
v.
EOFLOW CO., LTD.; EOFLOW, INC.; NEPHRIA BIO, INC.; JESSE J. KIM (a/k/a JAE JIN KIM); LUIS J. MALAVE; STEVEN DIIANNI; and IAN G. WELSFORD, Defendants
v.
EOFLOW CO., LTD.; EOFLOW, INC.; NEPHRIA BIO, INC.; JESSE J. KIM (a/k/a JAE JIN KIM); LUIS J. MALAVE; STEVEN DIIANNI; and IAN G. WELSFORD, Defendants
Civil Action No. 1:23-cv-11780-FDS-JDH
United States District Court, D. Massachusetts
Filed October 23, 2024
Counsel
Robert D. Carroll, Robert Frederickson, III, Alexandra Lu, Gerard J. Cedrone, Scott T. Bluni, William E. Evans, Goodwin Procter, LLP, Boston, MA, Alexandra D. Valenti, Pro Hac Vice, Arshjit Raince, Danit Maor, James P. Breen, Timothy Keegan, Goodwin Procter LLP, New York, NY, Jenny Zhang, Matthew Ginther, Pro Hac Vice, Goodwin Procter LLP, Washington, DC, for Plaintiff.John C. Bostic, HanByul Chang, Kyung Taeck Minn, Cooley LLP, Palo Alto, CA, Michael Sheetz, Adam S. Gershenson, Isabel Lily Catanzaro, John Wray, Matthew Oliver, Zachary Sisko, Kimberley A. Scimeca, Cooley LLP, Boston, MA, Alexandra Mayhugh, Cooley LLP, Los Angeles, CA, Dustin Knight, Pro Hac Vice, Jordan Landers, Cooley LLP, Washington, DC, Hankil Kang, Covington & Burling, LLP, Washington, DC, Elizabeth M. Flanagan, Pro Hac Vice, Cooley LLP, Minneapolis, MN, Mead Lowell, Reuben H. Chen, Cooley LLP, San Diego, CA, for Defendants EOFlow, Co. Ltd., EOFlow, Inc.
Adam S. Gershenson, Michael Sheetz, Isabel Lily Catanzaro, John Wray, Matthew Oliver, Zachary Sisko, Kimberley A. Scimeca, Cooley LLP, Boston, MA, Elizabeth M. Flanagan, Pro Hac Vice, Cooley LLP, Minneapolis, MN, John C. Bostic, HanByul Chang, Kyung Taeck Minn, Cooley LLP, Palo Alto, CA, Mead Lowell, Reuben H. Chen, Cooley LLP, San Diego, CA, Alexandra Mayhugh, Cooley LLP, Los Angeles, CA, Dustin Knight, Jordan Landers, Cooley LLP, Washington, DC, for Defendant Jesse J. Kim.
Hedges, Jessica D., United States Magistrate Judge
ORDER
*1 On October 21, 2024, Defendants EOFlow Co., Ltd., EOFlow, Inc., Nephria Bio, Inc., Jesse J. Kim, Luis J. Malave, Steven DiIanni, and Ian Welsford (collectively, “Defendants”) filed a letter (Docket No. 700) requesting an order requiring Plaintiff Insulet Corporation (“Plaintiff”) to produce unredacted versions of documents that Plaintiff withheld and redacted on the basis of privilege pursuant to this Court's order on Defendants’ motion to compel (Docket No. 666) (“Order”). I ordered Plaintiff to file a response to Defendants’ letter no later than midnight on October 22, 2024 (Docket No. 704), and Plaintiff did so (Docket No. 714).
Plaintiff's letter states that, on October 21, 2024, Plaintiff agreed to produce unredacted versions of “a small number of previously withheld documents” and “certain previously redacted documents ... with fewer or no redactions.” Docket No. 714 at 2. On October 23, 2024, I ordered Plaintiff to produce those documents to Defendants. I also ordered Plaintiff to submit unredacted, electronic copies of the remaining documents to the Court for in camera review.[1]
After reviewing the documents submitted for in camera review, I find that almost all of Plaintiff's privilege withholdings and redactions are consistent with the Order. The Order stated that Plaintiff “need not produce privileged communications between Mr. Schick and Mr. Andersen.” Docket No. 666. This portion of the Order was based upon my finding that Mr. Schick was “necessary, or at least highly useful for” Mr. Andersen's provision of legal advice to Insulet regarding the protection of its trade secrets. Davine v. Golub Corp., No. 3:14-30136-MGM, 2017 WL 517749, at *3 (D. Mass. Feb. 8, 2017) (quotation omitted). Thus, I found that Mr. Schick's communications with Mr. Andersen regarding the protection of Insulet's trade secrets were privileged and Plaintiff was not required to produce them. See Docket No. 666.
I further found that Plaintiff failed to show that Mr. Schick's communications with individuals other than Mr. Andersen were per se privileged. Plaintiff was therefore required to produce those communications to Defendant to the extent they existed. I did not find, however, that documents for which Mr. Andersen was not a recipient or a custodian could never be privileged, and I did not order Plaintiff to produce privileged information. Contrary to Defendants’ letter, documents need not list Mr. Andersen as a recipient or custodian to be considered privileged, provided they reflect or convey privileged legal advice or analysis. See In re Intuniv Antitrust Litig., No. 16-cv-12653-ADB, 2018 WL 6492747, at *6 (D. Mass. Dec. 10. 2018) (finding that defendants properly withheld and redacted “communications in which non-lawyers convey[ed] communications from [an in-house] attorney” and documents containing legal advice “provided by [in-house] attorneys who did not author the documents”).
*2 Turning to the documents that remain at issue, I find that the documents Plaintiff withheld in full convey or reflect privileged legal advice or analysis, and, thus, Plaintiff need not produce them. With the exception of five documents produced in native format,[2] I further find that Plaintiff's redactions to the remaining documents are proper and consistent with the Order, as the redacted material reflects or conveys privileged legal advice or analysis. With respect to these documents, Defendants’ request for an order requiring Plaintiff to produce unredacted versions of the documents Plaintiff redacted and withheld is hereby DENIED.
It is further ORDERED that Plaintiff shall re-produce to the Court for in camera review redacted versions of the documents bearing Bates numbers INSULET_01021114, INSULET_01021116, INSULET_01021118, INSULET_01021719, and INSULET_01021731. These documents shall be submitted to Deputy Clerk Thomas Quinn at thomas_quinn@mad.uscourts.gov no later than 10:00am tomorrow, October 24, 2024, and shall contain transparent redactions that will allow the Court to review Plaintiff's proposed redactions. Should Plaintiff fail to re-produce these documents to the Court consistent with this Order, the Court will order Plaintiff to immediately produce these documents to Defendants in full.
Footnotes
In submitting these documents for in camera review, Plaintiff submitted to the Court five additional privileged documents—which Defendants have not challenged—for the purpose of providing context as to certain of the documents submitted for review. I considered these five privileged documents in conducting the in camera review. To aid in the Court's review, Plaintiff also provided the names of three attorneys working for or with Plaintiff.
These documents bear Bates numbers INSULET_01021114, INSULET_01021116, INSULET_01021118, INSULET_01021719, and INSULET_01021731. Plaintiff inadvertently produced these documents to the Court in native format without any proposed redactions. Accordingly, the Court reserves ruling on these five documents until it has had an opportunity to conduct an in camera review of Plaintiff's proposed redactions to these documents.