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  • Writer's pictureShelly Albaum

Elysium's Ex Parte Clawback Motion

Elysium today filed an ex parte application in California seeking to clawback some privileged material inadvertently produced in discovery. You can read the motion here:

Here is Elysium's side of the story:

On February 6, 2019, in accordance with the Discovery Order, Elysium provided notice to ChromaDex that it had inadvertently produced three documents containing information that is subject to the attorney-client privilege. Notwithstanding that the Discovery Order mandates that ChromaDex destroy or return these documents once it has been notified by Elysium that the documents contain privileged information that was inadvertently produced, ChromaDex refuses to do so and continues to review and affirmatively use these documents in violation of the Court’s Discovery Order....

These three documents are Excel files that were produced to ChromaDex in native format that contain compilations of hundreds of thousands of messages (text and instant messages). Interspersed throughout those three Excel files are messages subject to the attorney-client privilege.

We don't have ChromaDex's side of the story, but apparently ChromaDex does not think that Elysium has provided adequate notice, or has not properly designated the materials that it deems privileged, and/or perhaps objects to the privilege claim itself.

I expect we'll soon see a letter to the Court in response from ChromaDex.

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