The Anschutz Corporation v. Merryll Lynch & Co., Inc. et al

Filing 300

ORDER DENYING FITCH'S SECOND MOTION TO COMPEL (SI, COURT STAFF) (Filed on 11/21/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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THE ANSCHUTZ CORPORATION,

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Plaintiff,

United States District Court
For the Northern District of California

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No. C 09-03780 SI
ORDER DENYING FITCH’S SECOND
MOTION TO COMPEL

v.
MERRILL LYNCH & CO., et al.,
Defendants.

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Currently before the Court is defendant Fitch, Inc.’s motion to compel plaintiff to produce a copy

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of plaintiff’s “litigation hold” letter, based on Fitch’s belief that spoliation of evidence has occurred.

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Fitch sought a copy of the litigation hold letter before, and the Court denied that request without

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prejudice in the absence of evidence that relevant documents had been destroyed. Docket No. 297.

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After taking the deposition of plaintiff’s CEO’s assistant, Fitch again moves for an order compelling

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plaintiff to produce a copy of its litigation hold letter, which otherwise would be protected by the

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attorney-client privilege. Docket No. 298.

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The Court has reviewed the arguments made by Fitch and by plaintiff and concludes that Fitch

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has not demonstrated that spoliation has actually occurred. Fitch argues that the deposition of the

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CEO’s assistant demonstrates that the assistant did not adequately preserve potentially relevant

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documents. However, Fitch fails to point to any admission by the assistant or other documentary

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evidence that suggests that the assistant or CEO ever received any documents which should have been

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covered by a litigation hold, and were nonetheless destroyed. The only documentary evidence Fitch can

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point to is a 2008 email in which an Anschutz employee asked a third-party to prepare a report about

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ARS for Mr. Anschutz, the CEO. But Fitch has not presented any evidence that the requested memo

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was ever prepared, much less whether it was sent to the CEO. Fitch has not deposed the employee who

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sent the email to the third-party, requesting the preparation of the memo, and plaintiff disputes whether

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any such memo was ever prepared.

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In these circumstances and in absence of any evidence that relevant documents have been
impermissibly destroyed, the Court DENIES Fitch’s motion.

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IT IS SO ORDERED.

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Dated: November 21, 2011
SUSAN ILLSTON
United States District Judge

United States District Court
For the Northern District of California

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