Peerless Indus., Inc. v. Crimson AV, LLC, No. 11 C 1768, Slip Op. (N.D. Ill. May 14, 2013) (Cox, Mag. J.).
Judge Cox denied defendants’ (collectively “Crimson”) motion to compel production of a clawed back document based upon the crime-fraud exception. Plaintiff Peerless Industries (“Peerless”) inadvertently produced a document and then clawed it back. Crimson argued that the document demonstrated Peerless’ counsel’s belief that Peerless’ claims lacked legal merit and were being pursued to “distract and delay.” The Court held that a potentially improper motive for filing suit did not rise to the level of a crime or a fraud that would have required waiver and production. The Court did, however, note that pursuing baseless litigation in order to harm a competitor could be actionable as a tort.