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  • Writer's pictureShelly Albaum

Elysium's Clawback Claim Denied

Neither side got what they wanted, but ChromaDex got what they needed. You can read Magistrate Judge McCormick's minute order here:

Or you can just read it -- it's a single paragraph:

Although Elysium's request is denied, and the concerns ChromaDex identified in its opposition seem to have been taken seriously, it's not quite as bad for Elysium as it sounds.

On Monday at 10am His Honor will host a discovery conference at which Elysium should be prepared to replace the three Excel files in question with new Excel files that have the proper redactions, plus a privilege log explaining what was redacted and why.

So Elysium does NOT get to take back spreadsheets and send replacements at an unspecified date with unspecified differences, but must instead produce the same spreadsheets with redactions and a privilege log, so it is very clear exactly what is being claimed as privileged and why.

This is a proper remedy, and I can't imagine how Elysium thought they could get much more than this.

Actually, Elysium may have gotten a little bit more. Two additional apparent wins for Elysium are that Magistrate Judge McCormick does not seem inclined (1) to agree with ChromaDex's claim that any privilege was waived, or (2) to grant ChromaDex's request for attorney fees and costs for having to deal with Elysium's improper ex parte request.

On the other hand, His Honor's statement that he would "discuss with the parties how to address any disputed claims of privilege" on Monday is a small loophole suggesting that ChromaDex still has a chance to make its case that no privilege claims are warranted, or that Elysium's specific claims are improper.

The latter, however, will be difficult to accomplish in the time allotted if ChromaDex does not have advance notice as to which of the spreadsheet cells Elysium believes are subject to a privilege claim.

So, I would not be surprised if Baker Hostetler's attorneys spent the entire weekend identifying spreadsheet cells that they would like redacted and have a colorable claim of privilege, and Cooley's attorneys spent the entire weekend identifying text messages that they believed were both important and probably not privileged.

Then on Monday, the bleary-eyed attorneys from Baker Hostetler will show up with proposed redactions, and the bleary-eyed attorneys from Cooley will show up with a long list of potential challenges at hand in case Elysium's redacted versions appear to exceed the bounds of propriety.

That's a big job on short notice, which is why large law firm associates get paid the big bucks and burn out fast.

If Elysium was hoping to claw back any privileged material they had unfortunately disclosed, and avoid paying a penalty for filing a denied ex parte motion, they'll probably get their wish (unless Cooley successfully presses its privilege waiver issue).

However, if Elysium was really hoping to claw back or delay production of unprivileged material, then Elysium appears to have lost.

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