Court Not Convinced that Order Requiring Gillette to Hire Vendor for Extensive Electronic Discovery Warranted

Galvin v. Gillette Co., 2005 WL 1476895 (Mass. Super. May 19, 2005) (Unpublished)

On January 27, 2005, The Proctor & Gamble Company (“Proctor & Gamble”), acting through Aquarium Acquisition Corp., agreed to merge with The Gillette Company (“Gillette”). William Francis Galvin, Secretary of the Commonwealth of Massachusetts (“the Secretary”) has certain statutory authority allowing him to investigate fairness opinions issued by UBS and Goldman, Sachs in support of the merger. The Secretary opened an investigation and caused a subpoena duces tecum to be served on Gillette. When Gillette refused to comply, he sought an order forcing compliance. The subpoena was found too far reaching given that the investigation was supposed to address whether the fairness opinions were fraudulent. The court quashed the subpoena without prejudice. See Galvin v. Gillette Co., 19 Mass.L.Rptr. 291 (Mass.Super, April 28, 2005).

Within hours of the April 28 decision, the Secretary served a second subpoena on Gillette. The Secretary’s first proposed order relating to this second subpoena required Gillette to produce the following: studies or reports from McKinsey & Company, email between and among Goldman, Sachs and certain Gillette executives, email between and among UBS and certain Gillette executives, and email between and among certain Gillette executives. The Court agreed to enforce the order for materials “previously provided to UBS or Goldman, Sachs for use or consideration in connection with their fairness opinions.”

The second proposed order required Gillette to hire Vance, Inc. and give it access and opportunity to “search all e-mail, servers, archives, discs, back-up tapes, hard drives (of all computers of Gillette and Gillette personnel), and all back-up systems thereof, and all other data bases of Gillette, necessary to investigate and accomplish retrieval, preservation and copying of the documents [described thereafter].” The Court noted several factors in determining whether to grant this order, including: the volumne of material, retention policy, efforts required to review materials prior to production, and purpose of the investigation.

According to Gillette’s Kathy Lane, Gillette has 18,500 active email users and traffic amounts to about 14 million messages per month. Given this volume and “in an effort to conserve resources and assure functionality,” users are encouraged not to retain unneeded email. Materials would need to be examined for attorney-client privilege and confidential or trade secret information before production. The Court was not convinced that this order is warranted under these circumstances where Gillette is not the subject of the investigation. Compliance would be “daunting” and nearly impossible.