Jackson v. Johnson & Johnson, 566 F.Supp.3d 757

Tammy and Bryon Jackson sued Ethicon over a 2007 Gynecare TVT pelvic‑mesh implant, alleging personal injuries and seeking damages; case originated in the MDL and was transferred to E.D. Ky. for individualized discovery.
Ethicon asserts Kentucky’s one‑year personal‑injury statute of limitations may bar Tammy Jackson’s claims and served a third‑party subpoena on non‑party Hughes & Coleman for records of Jackson’s initial contact and intake.
Hughes & Coleman (and Plaintiffs) asserted attorney‑client privilege and produced a privilege log listing five documents: three “Needles” intake screens (Party Information; Case Tab; Case Note), a Sept. 16, 2011 fee agreement, and an Oct. 10, 2011 case note about a referral/letter to Skikos.
Court applied Kentucky law (KRE 503) and the two‑prong privilege test: (1) confidentiality and (2) purpose of obtaining legal advice; burden on privilege proponent; in camera review available if threshold shown.
Court dissected intake materials: held the Party Information screen (biographical/contact data) nonprivileged and ordered production; held the Case Tab and Case Note intake screens (substantive case facts) privileged and protected from production.
Court ordered production of the fee agreement and the case note regarding the Skikos referral; compelled Hughes & Coleman to produce any nonprivileged SSD‑related records responsive to the subpoena and to supplement the privilege log for any claimed privileged SSD materials.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether intake questionnaires are privileged	Intake forms are part of attorney‑client communications and privileged	Ethicon: some intake fields are nonprivileged (e.g., ID/contact); need intake records to test accrual/limitations	Split: Party Information (biographical/contact) not privileged — produce; Case Tab & Case Note (substantive factual intake) privileged — withhold
Whether the fee/engagement agreement is privileged	Fee agreement relates to representation and should be withheld	Ethicon: fact of representation and fee arrangements are nonprivileged; relevant to limitations/procedure	Fee agreement is nonprivileged; produce
Whether a case note memorializing a referral/letter to Skikos is privileged	Note was made to facilitate pursuit of the lawsuit and thus privileged	Ethicon: the note likely is merely administrative/record‑keeping and nonprivileged	Referral/case note is nonprivileged; produce
Whether Hughes & Coleman must produce SSD‑related records or log their privilege claims	Plaintiffs: SSD communications may be privileged or not responsive to product‑liability subpoena	Ethicon: SSD records about mesh and timing are relevant to accrual/statute‑of‑limitations and must be produced if nonprivileged	Produce any nonprivileged SSD‑related responsive records; if withheld, provide an adequate privilege log

In re Powerhouse Licensing, LLC, 441 F.3d 467 (6th Cir. 2006) (state law governs privilege in diversity cases)
Hoven v. Walgreen Co., 751 F.3d 778 (6th Cir. 2014) (Erie principles and applying forum state law on privilege)
Univ. of Kentucky v. Lexington H-L Servs., Inc., 579 S.W.3d 858 (Ky. Ct. App. 2018) (attorney‑client privilege elements under Kentucky law)
Collins v. Braden, 384 S.W.3d 154 (Ky. 2012) (confidentiality requirement for Kentucky lawyer‑client privilege)
3M Co. v. Engle, 328 S.W.3d 184 (Ky. 2010) (waiver by disclosure to third parties)
Stidham v. Clark, 74 S.W.3d 719 (Ky. 2002) (in camera review threshold and proving waiver)
St. Luke Hosps., Inc. v. Kopowski, 160 S.W.3d 771 (Ky. 2005) (burden on privilege proponent)
United States v. Zolin, 491 U.S. 554 (1989) (standard for in camera review to test privilege claims)
Upjohn Co. v. United States, 449 U.S. 383 (1981) (purpose of privilege: full and frank attorney–client communications)
Fisher v. United States, 425 U.S. 391 (1976) (privilege protects disclosures necessary to obtain legal advice)