ALLERGAN, INC., ALLERGAN PHARMACEUTICALS IRELAND UNLIMITED COMPANY, ALLERGAN USA, INC., AND ALLERGAN SALES, LLC Plaintiffs, v. REVANCE THERAPEUTICS, INC. Defendant Civil Action No. 3:23-cv-00431 United States District Court, M.D. Tennessee, Nashville Division Filed July 18, 2025 Presnell, Todd, Special Master ORDER OF THE SPECIAL MASTER RESOLVING JOINT STATEMENT ON ALLEGED SPOLIATION BY REVANCE EMPLOYEE JENNIFER AGGABAO *1 This matter comes before the Special Master on the parties' April 29, 2025, joint statement to the Special Master (the “Joint Statement”) in which Plaintiffs (“Allergan”) allege spoliation of evidence by Revance Therapeutics, Inc. (“Revance”) through employee Jennifer Aggabao. Allergan requests, among other things, an order compelling Revance to provide discovery about the alleged spoliation and an order finding that Revance intentionally spoliated evidence. The Joint Statement and its thirty-six (36) exhibits contain the parties' briefing and positions on this dispute,[1] upon consideration of which the Special Master grants in part and denies without prejudice in part Allergan's request for relief. I. Issues Raised in the Joint Statement The parties and the Special Master are familiar with the background of this action. See, e.g., ECF No. 302 at PageID ## 5252–54. The current dispute concerns Aggabao's alleged spoliation of her Microsoft Teams messages with Malwina Pietrzak, a former Revance employee with whom Aggabao allegedly coordinated to misappropriate its trade secrets. Aggabao is one of several Allergan-turned-Revance employees at the center of Revance's alleged misappropriation scheme. See ECF No. 1 at ¶¶ 83–101. Allergan filed this action on April 28, 2023, and sent Revance a preservation letter the same day. ECF No. 1; Joint Statement, Ex. 10. Aggabao knew of this action by May 4, 2023 as she forwarded a copy of the Complaint to multiple people by text message that day. Joint Statement, Ex. 8 at 13 & Ex. 11 at 4. In messages sent around the same time, Aggabao expressed concern about the lawsuit and her role in it. For example, Aggabao told one person that “people can get wrong perception of me.” Joint Statement, Ex. 11 at 6. Aggabao also appeared concerned that she could become the target of a lawsuit, telling Pietrzak that “right now the lawsuit is against Revance only.” Joint Statement, Ex. 8 at 13. A few days later on May 10, 2023, Aggabao texted Pietrzak on her personal cell phone that she has a “meeting with legal on Friday” and “was told IT will contact me to do mirror imaging of my computer.” Joint Statement, Ex. 1 at 4. Pietrzak responded “Ok. We need to delete our conversations on team.” Id. Pietrzak confirmed less than a minute later that she “[d]eleted our chat.” Id. at 5. She followed up by stating “[i]t says it's permanent but I believe nothing.” Id. Aggabao then noted “I'm sure they have back-up,” stated “[p]ermanent for us,” and confirmed “I deleted our chat too.” Id. Aggabao testified in her deposition that she and Pietrzak deleted their Teams messages because Aggabao “was embarrassed because our Teams messages, we would complain about our leadership” and “talk bad about our bosses.” Joint Statement, Ex. 2 at 92:6–10. Aggabao testified that she did not remember how many messages she deleted, what time period the deleted messages covered, whether she deleted any messages with anyone other than Pietrzak, or whether she deleted any documents from her computer. Id. at 96:1–97:8. Aggabao also testified to deleting a picture of a PowerPoint presentation from her time working for Allergan sometime after she started working at Revance, but that she did not recall the “exact date.” Id. at 87:9–25. *2 Allergan alleges that Revance knew about this alleged spoliation for a significant period of time and actively concealed it. For example, Allergan asserts that the metadata of the text messages between Aggabao and Pietrzak indicates that Revance's counsel had them in their possession since December 2023 but did not produce them until two days before Aggabao's deposition and six months after Pietrzak's deposition. Joint Statement at 1. Revance does not deny that assertion. Instead, it merely responds that “Aggabao produced the text messages before the deposition” without explaining why she waited so long to produce them and only did so two days before her deposition. Id. at 15. Revance's counsel represents that “Revance produced all of Ms. Aggabao's Teams messages with Pietrzak,” id. at 12 (emphasis in original), and that Aggabao could not have deleted any Teams messages even if she tried because Revance implemented a legal hold on her electronically stored information at some unspecified time before the May 10, 2023. Id. at 10. But Revance does not explain which messages it has produced are the messages Aggabao admitted that she at least attempted to delete. II. Discussion Allergan “make[s] clear that it intends to move the Court at the appropriate time for sanctions,” but at this juncture seeks discovery from Revance regarding Revance's potential spoliation. Joint Statement at 10. Federal Rule of Civil Procedure 26(b)(1) contemplates that, in appropriate circumstances, one party may seek information about another party's retention efforts. Fed. R. Civ. P. 26(b)(1) Adv. Comm. Notes (stating that discovery may include information about the “custody, condition, and location of any documents” and “detailed information about another party's information systems and other information resources,” so long as “relevant and proportional to the needs of the case”); see Ruiz-Bueno v. Scott, No. 2:12-CV-0809, 2013 WL 6055402, at *1 (S.D. Ohio Nov. 15, 2013) (“Sometimes, information about discovery is a matter which ‘may aid a party in the preparation ... of his case.’ When that is true, that information is relevant within the meaning of Rule 26(b).”). But this so-called “discovery on discovery” is not automatic and courts typically disfavor it. See, e.g., S.C. v. Wyndham Hotels & Resorts, Inc., No. 1:23-CV-00871, 2024 WL 21548, at *2 (N.D. Ohio Jan. 2, 2024); Buergofol GmbH v. Omega Liner Co., Inc., No. 4:22-CV-04112-KES, 2024 WL 4291467, at *7 (D.S.D. Sept. 25, 2024). The question, then, is under what circumstances may a party seek discovery about an adversary's discovery efforts? Courts have permitted this type of discovery “where there is evidence of a specific deficiency in the production.” Culliver v. BP Exploration & Prod., Inc., No. 21-cv-4942-MCR-HTC, 2022 WL 19568966, at *2 (N.D. Fla. Nov. 29, 2022) (citations omitted); Stein v. U.S. Xpress Enters., Inc., No. 1:19-CV-00098-TRM-CHS, 2022 WL 511553, at *3 (E.D. Tenn. Feb. 11, 2022) (denying “discovery on discovery deposition” where the moving party had not “demonstrated any preservation lapse or production issues that would call into question Defendants' preservation and production efforts”) (cleaned up). And courts have permitted discovery, including depositions, where there is a potential spoliation issue. Beaudry v. TeleCheck Servs., Inc., No. 3-07-0842, 2013 WL 12355782, at *2 (M.D. Tenn. Mar. 31, 2013) (allowing deposition regarding “defendants' document retention policies and procedures, particularly relating to litigation hold notices” because “they are relevant to a potential issue of spoliation in light of the plaintiff's assertions of missing or incomplete data”); Edwards v. Scripps Media, Inc., 331 F.R.D. 116, 125 (E.D. Mich. 2019); see also Bowman v. Home Depot U.S.A., Inc., No. 3:21-cv-00885, 2022 WL 2294051, at *10 (M.D. Tenn. June 24, 2022) (noting that document-retention policies are discoverable if they are relevant to a party's claim or defense, or if there has been evidence or an allegation that a party failed to properly retain documents or has improperly destroyed documents). To secure relief, the party seeking discovery must explain in sufficient factual detail the alleged deficiency in its opponent's production or the type of evidence the opponent lost or failed to preserve. Culliver, 2022 WL 19568966, at *2. Conclusory assertions, suspicions that an opponent's production is incomplete, and speculation of wrongdoing are insufficient to warrant additional discovery. Id. *3 Here, Allergan submitted sufficient factual detail to raise beyond a suspicion that Revance employee Aggabao at least attempted to delete Microsoft Teams communications on May 10, 2023, after learning of Allergan's lawsuit and knowing that Revance would image her computer in the coming days. The parties dispute whether the messages at issue are lost, and Revance largely skips over whether, if they are, they are available through additional discovery. Revance asserts that it has produced the messages that Aggabao says she deleted, and that Aggabao could not have deleted any messages regardless because she was subject to a legal hold. Joint Statement at 10. Revance also contends that the metadata of Teams messages that were produced indicate they were collected from a “SubstrateHolds” folder that is enabled by Microsoft when a legal hold is implemented. Id. at 13. But Allergan contends that Revance refuses to identify which messages Aggabao at least attempted to delete. Id. at 3. Aggabao attempted to delete potentially relevant evidence, but it is unclear whether she was successful. The Special Master will therefore allow Allergan certain inquiries about Aggabao's deletions and the timing of Revance's preservation efforts, but these inquiries will be “closely scrutinized in light of the danger of extending the already costly and time-consuming discovery process ad infinitum.” Culliver, 2022 WL 19568966, at *2 (quoting Radiologix, Inc. v. Radiology & Nuclear Med., LLC, 2018 WL 4851609, at *4 (D. Kan. Oct. 5, 2018)). The alleged issue is spoliation of material electronic communications that prejudiced Allergan which, if true, could lead to sanctions under Federal Rule of Civil Procedure 37(e). At least in this instance, therefore, Rule 37(e) guides the scope of any discovery on discovery. Judge Iain Johnston of the United States District Court for the Northern District of Illinois created a succinct and helpful decision-tree summary of Rule 37(e)'s application. See Hollis v. CEVA Logistics U.S., Inc., 603 F. Supp. 3d 611, 617–18 (N.D. Ill. 2022); Hamilton v. Oswego Cmty. Unit Sch. Dist. 308, No. 20-CV-0292, 2022 WL 580783, at *2 (N.D. Ill. Feb. 25, 2022); Hon. Iain D. Johnston & Thomas Y. Allman, What Are the Consequences for Failing to Preserve ESI: My Friend Wants to Know, Circuit Rider 57–58 (2019). Rule 37(e) contains five threshold elements that parties must satisfy before a court can even consider the scope of sanctions, if any: (1) the purportedly lost evidence must be electronically stored information (ESI); (2) there must have been anticipated or actual litigation that triggered a preservation duty; (3) the relevant ESI should have been preserved; (4) the ESI must have been lost because a party failed to take reasonable steps to preserve it; and (5) the lost ESI cannot be restored or replaced through additional discovery. Hollis, 603 F. Supp. 3d at 617. If a party seeking sanctions fails to prove any of these elements, then curative or greater sanctions are available. Id. The Special Master will tailor Allergan's discovery to information necessary to assess these five threshold elements. Allergan seeks the following information: (1) the date Revance placed a legal hold on employees Jennifer Aggabao, Malwina Pietrzak, and David Hollander; (2) production of Revance's data-retention policy in effect in April and May 2023; (3) the measures that Revance took to preserve Aggabao's data, including her Teams messages, beyond imaging her device; (4) the date Revance collected Aggabao_00018725; (5) production of communications between Aggabao and David Hollander and Aggabao and Pietrzak; and (6) depositions of David Hollander and supplemental depositions of Aggabao and Pietrzak. Joint Statement at 10. The Special Master denies without prejudice Allergan's request for production of the legal holds. The attorney–client privilege typically protects from discovery a lawyer's legal-hold communications. EPAC Techs., Inc. v. Thomas Nelson Inc., No. 3:12-cv-00463, 2015 WL 13729725, at *6 (M.D. Tenn. Dec. 1, 2015) (“Generally, litigation holds letters are privileged and are not discoverable.”); Safelite Grp., Inc. v. Lockridge, No. 2:21-cv-04558, 2022 WL 17842945, at *4 (S.D. Ohio Dec. 22, 2022). While some courts impose a privilege exception upon a preliminary showing of spoliation, EPAC Techs., Inc., 2015 WL 13729725, at *6, for the reasons explained below it is premature to determine whether a privilege exception should apply here. At this juncture, the discovery permitted in this Order should allow Allergan to assess Rule 37(e)'s application without compelling production of Revance's legal-hold communications. The Special Master also denies without prejudice Allergan's request for Aggabao–Hollander and Aggabao–Pietrzak communications and its request for depositions of these employees because of the danger, at this phase, “of extending the already costly and time-consuming discovery process ad infinitum.” Culliver, 2022 WL 19568966, at *2 (citations omitted). *4 The Special Master agrees that Allergan should receive the specific date that Revance placed employees Aggabao, Pietrzak, and Hollander on a legal hold because neither the attorney–client privilege nor the work-product doctrine protects these dates from discovery. Beaudry, 2013 WL 12355782, at *2 (M.D. Tenn. Mar. 31, 2013); Safelite Grp., Inc., 2022 WL 17842945, at *4. Revance's retort that it issued the holds prior to May 10, 2023 is too non-specific given Aggabao's admission of attempting to delete evidence knowing that Allergan had filed its Complaint and that Revance intended to image her computer. And Allergan is entitled to discover limited information about Revance's preservation efforts surrounding Aggabao. Allergan's motion to compel, therefore, is granted as outlined in Paragraph 1(c) below. III. Conclusion In accordance with the foregoing, the Special Master hereby ORDERS that: 1. The relief Allergan requests in the parties' April 29, 2025, Joint Statement is GRANTED in part and DENIED in part as follows: a. Allergan's request for an order finding that Revance has intentionally spoliated evidence is DENIED WITHOUT PREJUDICE. b. Allergan's request for an order compelling further discovery about the alleged spoliation is GRANTED in part and DENIED in part. More specifically, the Special Master ORDERS Revance to provide additional discovery as follows. c. Revance is ORDERED to produce a declaration signed by a knowledgeable Revance representative(s), which could include a contracted e-discovery vendor, about the alleged deletion of the Microsoft Teams messages at issue by Aggabao within fourteen (14) days of entry of this Order. The declaration shall answer the following questions: i. Describe in detail all efforts taken by Revance to preserve the ESI of Jennifer Aggabao, Malwina Pietrzak, and David Hollander, including the dates on which Revance implemented a legal hold on each of these individual's ESI. ii. State (A) Revance's retention period that was in place on April 28, 2023 for Microsoft Teams messages and communications that were part of Microsoft Exchange Online and (B) identify the section(s) of Revance's Record Retention Policy (Joint Statement, Exhibit 29) that reference these retention periods. iii. The date Revance collected Aggabao_00018725. iv. Describe in detail what happens to a Microsoft Teams message when a Revance custodian under a legal hold deletes or attempts to delete it. This includes, but is not limited to, answering the following questions: 1. Whether the Microsoft Teams application appears to the custodian as if the messages were deleted? 2. Whether a Microsoft Teams message that a custodian attempts to delete remains in another other file, folder (such as a recoverable items folder), preservation library, or drive (such as OneDrive), and, if so, identify those locations? 3. If messages that a custodian deletes or attempts to delete remain available in other files, folders, drives, or other location, is there any way to identify which messages the custodian deleted or attempted to delete? v. Whether Revance possesses the Microsoft Teams messages that Aggabao deleted or attempted to delete? vi. Have the Microsoft Teams messages Aggabao deleted or attempted to delete been produced in this litigation? 1. If they have, identify each of them by Bates number. 2. If they have not, explain why. vii. If the Microsoft Teams messages Aggabao deleted or attempted to delete are not housed in other files, folders, drives, or other locations, explain whether these messages are available for production through ESI of other Revance custodians or others. For example, are they available through ESI that Revance is preserving related to Pietrzak? If they are, state all other sources through which they are available. *5 viii. If no Revance representative can answer any of the questions posed in this Order, explain why. 2. After Revance supplies the declaration to Allergan, the parties SHALL meet and confer whether additional discovery is needed regarding the issues raised in the April 29, 2025 Joint Statement. If the parties are unable to agree that no further discovery is necessary or on the scope of necessary additional discovery, the parties SHALL send a joint statement to the Special Master on or before August 4, 2025 explaining their respective positions and proposed relief. 3. The Special Master filed the Joint Statement and accompanying exhibits under seal as a separate docket entry because the parties designated them “confidential.” Within fourteen (14) days of the entry of this Order, any party who desires for any material filed under seal in conjunction with this Order to remain under seal SHALL file a motion to seal with the Court pursuant to Local Rule 5.03. 4. Pursuant to Paragraph 3 of the Court's Order Modifying Case Management Order and Granting Request for the Appointment of a Special Master, the parties have twenty-one (21) days from the date of entry of this Order to file objections or a motion to adopt or modify any of the Special Master's rulings in this Order. IT IS SO ORDERED. Footnotes [1] The Joint Statement and its exhibits are filed under seal as a separate docket entry because the parties designated them as highly confidential in accordance with the operative protective order.