296 F.R.D. 31
D. Mass.2013Background
- Bryan contracted to buy tobramycin sulfate from ChemWerth and alleges ChemWerth promised to provide DMF-related documents for FDA approval.
- ChemWerth moved to compel production of documents Bryan and Waldman withheld as privileged.
- Waldman, a long-time FDA regulatory consultant, acted as Bryan’s agent for pre-litigation FDA matters and related communications.
- MLA and Bryan treated Waldman’s input as confidential to enable legal advice and potential litigation against ChemWerth.
- Common-law privilege logs were prepared; after communications, ChemWerth filed a motion to compel and Bryan revised logs.
- Court concludes the disputed documents are protected as work product, denying ChemWerth’s motion to compel.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether work product protection applies to the disputed documents | Bryan; documents prepared by counsel or Waldman in anticipation of litigation. | ChemWerth; seeks production, arguing no privilege applies. | Work product protection applies; motion denied. |
| Whether disclosure to Waldman waived work product protection | Disclosures made to an aligned common-interest agent do not waive. | Disclosure to a potential adversary could waive. | No waiver; common-interest and agency context preserved privilege. |
| Whether Waldman’s involvement defeats privilege because he was not counsel | Waldman acted as Bryan’s agent in anticipation of litigation. | Non-attorney involvement could break privilege. | Agency/agent involvement does not defeat work product protection. |
| Whether Waldman’s privilege log adequacy caused waiver | Log revised; detailed affidavits support privilege claims. | Log initially deficient; argued for waiver. | Logs, with revisions and supporting affidavits, adequately describe privilege. |
| Whether substantial need/undue hardship justifies production of fact work product | Documents contain work product; not required for substantial need. | If work product, substantial need may justify production. | Undue hardship/substantial need not met; production denied. |
Key Cases Cited
- Hickman v. Taylor, 329 U.S. 495 (U.S. Supreme Court 1947) (work product protects attorney-prepared materials in anticipation of litigation)
- In re Grand Jury Subpoena, 220 F.R.D. 130 (D. Mass. 2004) (work product protection; breadth and burden on showing its applicability)
- United States v. Am. Tel. & Tel. Co., 642 F.2d 1285 (D.C. Cir. 1980) (communication of work product protection and disclosure to third parties)
- United States v. Textron Inc. & Subsidiaries, 577 F.3d 21 (1st Cir. 2009) (work product protection; ordinary vs. opinion work product)