A memorandum order released today reveals that, in an antitrust case against Uber’s CEO (covered here), Judge Rakoff became concerned over improper investigative techniques that Uber (or its agents) employed. Specifically, Uber hired an firm called Ergo to investigate the plaintiff and plaintiff’s counsel, and, in doing so, Ergo’s investigator allegedly made various misrepresentations to gain information, such as claiming that he was a reporter writing a profile of plaintiff’s counsel.
At a hearing (the transcript of which remains nonpublic), Judge Rakoff ordered broad discovery from Uber — including from an Uber in-house attorney — and from Ergo concerning the investigation. In the order released today, Judge Rakoff denied Uber’s motion to reconsider a portion of his ruling calling for in camera review of privileged material as possibly falling within the “crime-fraud” exception to the privilege:
[T]he Court finds that plaintiff has provided an entirely “reasonable basis” to suspect the perpetration of a fraud and to suspect that Uber communications furthered such a fraud. Defendant has stated — and Uber has effectively confirmed — that employees of Uber “initiated an investigation concerning the plaintiff in this case,” and that Ergo was retained by Uber’s Legal Director of Security and Enforcement . . . .
Moreover, plaintiff has offered substantial grounds to believe that the Ergo investigator made material misrepresentations in the course of conducting his investigation. Uber, for its part, acknowledges that Uber personnel gave “instructions or assignments” to Ergo and “were involved in engaging and instructing Ergo.” All this provides a reasonable factual basis to suspect that a fraud occurred and that Uber’s communications may have been in furtherance of it.