392 F. Supp. 3d 179
D.D.C.2019Background
- MDL product-liability case: plaintiffs allege maternal use of Zofran (ondansetron) caused birth defects; a peer-reviewed epidemiological study by April Zambelli‑Weiner, Ph.D. is central to plaintiffs' causation proof.
- Plaintiffs' counsel funded the study and paid Dr. Zambelli‑Weiner roughly $210,000 through her company TTi; she also served as a paid consulting expert for plaintiffs.
- Dr. Zambelli‑Weiner and plaintiffs initially resisted discovery about counsel’s communications and payments, asserting protections under Fed. R. Civ. P. 26(b)(3) (work product) and 26(b)(4)(D) (consulting expert).
- Dr. Zambelli‑Weiner submitted an affidavit to the court containing material falsehoods about her relationship to plaintiffs’ counsel; her counsel later withdrew and corrected the record.
- The court conducted in camera review of withheld documents (including presentation slides from a public 2015 conference) and ordered production, finding the materials not protected by Rule 26 and that protections were waived by disclosure/misconduct.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether documents about communications/payments between plaintiffs' counsel and Dr. Zambelli‑Weiner are protected as attorney work product under Rule 26(b)(3) | Documents prepared for litigation by counsel or their consultant are protected from discovery | GSK argued it needed the documents (substantial need) and they were not protected because they were prepared for study publication and because protections were waived | Not protected; produced—work‑product protection does not apply or was waived by disclosure and misconduct |
| Whether consulting‑expert protections under Rule 26(b)(4)(D) shield facts/opinions or documents from discovery | Dr. Zambelli‑Weiner was a consulting expert; thus facts/opinions and related communications are ordinarily undiscoverable | GSK argued exceptional circumstances, substantial need, and inability to obtain equivalent materials; plus waiver by false affidavit and counsel funding of the study | Not protected; court found exceptional circumstances and waiver; documents discoverable |
| Whether materials presented at a public conference remain confidential/protected | Plaintiffs claimed communications/slides were protected | GSK argued public presentation waived confidentiality and increased access to adversaries | Not protected; public presentation waived protection and materials should be produced |
| Whether any attorney‑client privilege attached | Plaintiffs asserted privilege on some documents | GSK disputed existence of attorney‑client relationship with Dr. Zambelli‑Weiner | No attorney‑client relationship shown; privilege not established |
Key Cases Cited
- F.T.C. v. Grolier Inc., 462 U.S. 19 (1983) (Rule protects materials prepared for a party by or for that party)
- United States v. Massachusetts Inst. of Tech., 129 F.3d 681 (1st Cir. 1997) (work‑product waiver turns on whether disclosure increases adversaries' opportunity to obtain information)
- Bryan Corp. v. Chemwerth, Inc., 296 F.R.D. 31 (D. Mass. 2013) (third‑party disclosure can waive work‑product protection where disclosure substantially increases access by adversaries)
- In re Raytheon Sec. Litig., 218 F.R.D. 354 (D. Mass. 2003) (analysis of work‑product waiver due to disclosure)
- Hoffman v. Owens‑Illinois Glass Co., 107 F.R.D. 793 (D. Mass. 1985) (elements for Rule 26(b)(3) protection: prepared in anticipation of litigation and substantial‑need exception analysis)