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

Filing 300


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1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 THE ANSCHUTZ CORPORATION, 9 Plaintiff, United States District Court For the Northern District of California 10 11 12 No. C 09-03780 SI ORDER DENYING FITCH’S SECOND MOTION TO COMPEL v. MERRILL LYNCH & CO., et al., Defendants. / 13 14 Currently before the Court is defendant Fitch, Inc.’s motion to compel plaintiff to produce a copy 15 of plaintiff’s “litigation hold” letter, based on Fitch’s belief that spoliation of evidence has occurred. 16 Fitch sought a copy of the litigation hold letter before, and the Court denied that request without 17 prejudice in the absence of evidence that relevant documents had been destroyed. Docket No. 297. 18 After taking the deposition of plaintiff’s CEO’s assistant, Fitch again moves for an order compelling 19 plaintiff to produce a copy of its litigation hold letter, which otherwise would be protected by the 20 attorney-client privilege. Docket No. 298. 21 The Court has reviewed the arguments made by Fitch and by plaintiff and concludes that Fitch 22 has not demonstrated that spoliation has actually occurred. Fitch argues that the deposition of the 23 CEO’s assistant demonstrates that the assistant did not adequately preserve potentially relevant 24 documents. However, Fitch fails to point to any admission by the assistant or other documentary 25 evidence that suggests that the assistant or CEO ever received any documents which should have been 26 covered by a litigation hold, and were nonetheless destroyed. The only documentary evidence Fitch can 27 point to is a 2008 email in which an Anschutz employee asked a third-party to prepare a report about 28 ARS for Mr. Anschutz, the CEO. But Fitch has not presented any evidence that the requested memo 1 was ever prepared, much less whether it was sent to the CEO. Fitch has not deposed the employee who 2 sent the email to the third-party, requesting the preparation of the memo, and plaintiff disputes whether 3 any such memo was ever prepared. 4 5 In these circumstances and in absence of any evidence that relevant documents have been impermissibly destroyed, the Court DENIES Fitch’s motion. 6 7 IT IS SO ORDERED. 8 9 Dated: November 21, 2011 SUSAN ILLSTON United States District Judge United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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