Phillips v. C.R. Bard, Inc.
290 F.R.D. 615
D. Nev.2013Background
- This is a civil product-liability case against Bard over the Recovery Filter system; Bard seeks to assert attorney-client privilege and work product protection over approximately 50 representative documents (Joint Selections) amid a large, multi-case production.
- Plaintiff Kevin Phillips seeks production of Bard documents; Bard produced multiple privilege logs (over 500 pages) covering about 6,800 documents.
- The court conducted in camera review and hearings after extensive briefing to determine which Joint Selections are privileged or protected.
- The court applied Nevada law on the attorney-client privilege in a diversity case, with Ninth Circuit and other authorities guiding it where Nevada law is sparse.
- The court analyzed multiple privilege categories (communications with in-house/outside counsel, consultants, data requests, and compliance-related communications) and work-product protection for documents created in anticipation of litigation or with dual purposes.
- The order ultimately scheduled production of 18 Joint Selections while maintaining protection for others, after determining adequacy of privilege logs and waiver considerations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Privilege log adequacy | Bard's logs are insufficient under Grand Jury and Dole standards | Logs are adequate given volume; affidavits and category descriptions suffice | Logs satisfactory; no waiver due to holistic reasonableness |
| Primary purpose vs because-of standard | Primary purpose governs; dual-purpose documents are privileged only if primary legal purpose | Because-of standard may apply to dual-purpose materials but primary purpose still governs here | Court adheres to primary purpose standard for dual-purpose docs; considers context and content to assess legal purpose |
| Internal non-attorney communications and consultants | Non-attorneys forwarding legal advice should not shield via privilege | Consultants can be covered if their work is for providing legal services or is the functional equivalent of employee work | Determination made on a document-by-document basis; some consultant communications privileged, others produced |
| Waiver (procedural and at-issue) | Deficiencies amount to waiver; at-issue waiver applies due to Bard defenses | Holistic analysis; no blanket waiver; at-issue waiver contingent on later showing Bard will rely on specific documents | No blanket waiver; potential at-issue waiver assessed case-by-case if Bard relies on specific documents later |
| Correlation to discovery requests | Privilege logs must map documents to specific requests under Rule 26(b)(5) and Burlington | Correlation not required; logs describe the documents sufficiently for assessment | No requirement to correlate each document to a specific discovery request; logs adequate under rule 26(b)(5) |
Key Cases Cited
- Upjohn Co. v. United States, 449 U.S. 383 (1981) (attorney-client privilege scope in corporate context; communications for legal advice)
- Wardleigh v. Second Jud. Dist. Ct., 891 P.2d 1180 (Nev. 1995) (Nevada adopts Upjohn framework; corporate privilege contours in Nevada)
- United States v. ChevronTexaco Corp., 241 F. Supp. 2d 1065 (N.D. Cal. 2002) (in-house counsel privilege and primary purpose in regulatory context)
- In re Grand Jury Investigation, 974 F.2d 1068 (9th Cir. 1992) (privilege log sufficiency and elements of attorney-client privilege)
- Torf v. U.S. (In re Grand Jury Subpoena, Mark Torf/Torf Envtl. Mgmt.), 357 F.3d 900 (9th Cir. 2004) (dual-purpose documents; because-of test in work product; guidance for privilege analysis)
- Burlington Northern & Santa Fe Ry. Co. v. U.S. Dist. Ct. for the D. of Mont., 408 F.3d 1142 (9th Cir. 2005) (Holistic reasonableness analysis for waiver under Rule 26(b)(5))