Med. Mut. of Ohio v. Abbvie Inc. (In re Testosterone Replacement Therapy Prods. Liab. Litig.)Med. Mut. of Ohio v. Abbvie Inc. (In re Testosterone Replacement Therapy Prods. Liab. Litig.)
The defendants in this civil RICO case-AbbVie Inc. and other manufacturers of testosterone replacement therapy drugs-have moved for an order barring plaintiff Medical Mutual of Ohio (MMO) from clawing back six documents it produced to defendants. Defendants argue that the attorney-client privilege does not protect the documents and that even if it does, MMO has waived the privilege. Defendants alternatively ask the Court to order MMO to produce redacted versions of the documents, leaving visible the unprivileged facts they contain. For the following reasons, the Court denies defendants' motion.
Background
Between March 2017 and September 29, 2017, MMO produced to defendants approximately 180,000 documents totaling more than 1.4 million pages. MMO produced the documents pursuant to the parties' agreed protective order, which the Court entered on January 18, 2017. The protective order's purpose is to "facilitat[e] the exchange of information between the Parties to this Action without involving the Court unnecessarily in this process." D.E. 194 ¶ 4.
Paragraphs Seventeen and Eighteen of the protective order contain what the parties describe as claw-back procedures for inadvertent production of confidential or privileged material. Paragraph Seventeen states:
If a Producing Party inadvertently or unintentionally produces a document or information without marking it as Designated Confidential or Highly Confidential Information or marking it with the incorrect Confidentiality designation, the Producing Party shall, within twenty (20) business days of discovering the inadvertent production, give notice to the Receiving Party in writing, and thereafter the Receiving Party shall treat the document according to its new designation. Inadvertent or unintentional disclosure shall not be deemed a waiver in whole or in part of the Producing Party's claim of restriction either as to specific documents and information disclosed or on the same or related subject matter.
Id. ¶ 17.
Paragraph Eighteen states that if a producing party inadvertently or unintentionally produces any document(s) or information
Inadvertent or unintentional production may not be deemed a waiver in whole or in part of the Producing Party's claim of privilege or immunity from discovery either as to specific documents and information disclosed or on the same or related subject matter based on the facts constituting the inadvertent production. This provision is, and shall be construed as, an Order underRule 502(d) of the Federal Rules of Evidence . Accordingly, as is explicitly set forth inRule 502(d) , a Party's production of documents, whether inadvertent or intentional, is not a waiver of any privilege or protection "in any other federal or state proceeding."Fed. R. Evid. 502(d) .
Id. ¶ 18.
Paragraph Four of the protective order likewise contains a non-waiver provision. It states that "[n]othing in this Protective Order, nor the production of any documents or disclosure of any information pursuant to this Order, shall be deemed to have the effect of (a) an admission or waiver, including waiver under the Federal Rules of Evidence or applicable Local Rules." Id. ¶ 4.
The present dispute arose when MMO invoked the protective order to claw back six documents that MMO claims it produced inadvertently. MMO represents that it discovered the inadvertent productions in a piecemeal fashion. First, on October 3, 2017, MMO discovered that it had produced six privileged documents, including three of the documents (e-mails) at issue here. The e-mails contain an inquiry from one of MMO's in-house attorneys, Timothy Kibler, to three non-attorney employees of MMO. The inquiry seeks information about an AbbVie account manager that Kibler and Brien Shanahan, another of MMO's in-house attorneys, believe is relevant to this litigation. The e-mails also contain the employees' responses to the inquiry. Goroff Decl., Exs. B, C, D ("Goroff Ex(s)."). On the day it discovered the disclosures, MMO wrote to defendants and the MDL plaintiffs' co-lead counsel to ask defendants to destroy the documents.
MMO states that it did a quality check of its production after discovering the above disclosures. On October 20, 2017, while doing the quality check and preparing for depositions, MMO discovered that it had inadvertently produced another e-mail chain, which is the fourth document in dispute. In the e-mail chain, Kibler sends questions from Shanahan to three non-attorney MMO employees. The questions relate to Shanahan's work with outside counsel on the present litigation. One of the employees replies to Kibler, Shanahan, and the others with responses to the questions. Goroff Ex. A. On October 25, 2017, MMO notified defendants and the MDL plaintiffs' co-lead counsel of the disclosure and asked defendants to destroy the document.
The fifth document in dispute is an e-mail chain between two non-attorney MMO employees, Dr. Kathryn Canaday and Dr. Marko Blagojevic. In the first e-mail, Dr. Blagojevic relays statements and an inquiry from attorney Kibler regarding a defense in this litigation. Dr. Blagojevic also requests information from Dr. Canaday for Kibler's inquiry. The second e-mail
Defendants used Goroff Exhibit E in questioning Dr. Canaday during her deposition on November 29, 2017. Defense counsel questioned Dr. Canaday about the document for approximately ten minutes without objection by MMO's counsel. Several days later, an attorney for MMO who had not attended the deposition identified the document as privileged and inadvertently produced. On December 6, 2017, MMO notified defendants and the MDL plaintiffs' co-lead counsel of the disclosure and asked defendants to destroy the document.
The sixth document in dispute is an e-mail from Dr. Blagojevic to Dr. Canaday that appears in Goroff Exhibit E, but that MMO produced under a different Bates number. Goroff Ex. F. MMO learned that it had produced this document when defendants used it (along with Goroff Exhibit E) during Dr. Blagojevic's deposition on December 7, 2017. MMO's counsel objected during the deposition on the basis of privilege and invoked the protective order's claw-back provisions, but allowed questioning subject to this alleged reservation of rights. On December 15, 2017, MMO contacted defendants and the MDL plaintiffs' co-lead counsel in writing and asked defendants to destroy the document.
Defendants state that in addition to Goroff Exhibits A through F, MMO has produced hundreds of other documents "that contain or describe exchanges with MMO's inside and outside counsel," some of which are marked "TRT MDL Lawsuit-Attorney Client Privileged Communication." Defs.' Mot. at 1-2. Defendants attach several such documents as exhibits to their reply. Second Goroff Decl., Exs. 1-6.
Based on these facts, defendants argue that none of the documents at issue are protected by the attorney-client privilege.
Discussion
1. Attorney-Client Privilege
The purpose of the attorney-client privilege is " 'to encourage clients to make full disclosure to their attorneys.' " United States v. Leonard-Allen ,
Defendants argue that the disputed e-mails are not privileged because they merely contain attorneys' names, discuss only business concerns, discuss underlying facts that MMO has stated are not privileged, and/or do not otherwise reflect legal advice. The Court disagrees and finds that MMO has met its burden of proving that all six documents at issue are protected by the attorney-client privilege.
Goroff Exhibit A contains communications between MMO's employees and MMO's in-house attorneys who, along with outside counsel, were conducting an investigation relating to this litigation. The attorneys request information; the request reveals their legal thinking; and one of the employees provides information in response. This document is privileged. See Leonard-Allen ,
Despite defendants' position that the underlying facts in Goroff Exhibits A through F are not privileged, the Court finds that the facts and the privileged information
2. Applicability of
Because the Court has found that the attorney-client privilege protects all six documents in dispute, it must determine whether MMO waived the privilege, an inquiry that begins with determination of what standard governs the determination of waiver.
In general,
Defendants argue that the protective order does not override
The Seventh Circuit has not addressed this issue. Nor have courts in the Northern
The Court concludes that the parties' protective order governs inadvertent disclosures;
Defendants argue that this result "allow[s] parties to act negligently in their privilege review as long as the governing protective order contains the most generic claw-back provision." Defs.' Reply at 6. Similarly, defendants argue that in Excel , which MMO cites to argue that the parties' claw-back agreement displaces
3. Inadvertent Disclosure
Because the Court has held that the parties' protective order governs the issue of waiver for inadvertently produced privileged documents, the Court must decide whether MMO's production was inadvertent. The protective order does not define "inadvertent," so the Court follows its plain meaning. See In re Sulfuric Acid ,
Defendants argue that MMO's "conduct in this case goes far beyond mere inadvertence" because MMO has produced-without seeking to claw back-approximately 360 documents that are marked privileged or confidential, that refer to MMO's attorneys by name, or that contain exchanges with MMO's in-house and outside counsel. Defs.' Mot. at 1-2, 5; see also Goroff Exs. 1-6. The Court rejects this argument because it conflates the inadvertence inquiry with the logically distinct question whether, under
Defendants also argue that MMO's disclosures were not inadvertent because MMO waited until a week after Dr. Canaday's deposition to claw back Exhibit E. The Court similarly rejects this argument because it conflates the inadvertence inquiry with the question whether, under
MMO's attorney has filed a sworn declaration describing the circumstances and timeline of MMO's discovery of the disclosures.
4. Compliance With Protective Order
Defendants suggest that even if MMO's disclosures were inadvertent, MMO did not comply with the "timing provision of the Protective Order's claw back clause" because MMO had discovered the first inadvertent disclosures by October 3, 2017 but did not make made its last claw-back request until December 15, 2017. Defs.' Mot. at 13 n.14. The protective order, however, does not state that once the producing party discovers an inadvertent production, it has only twenty business days to give notice of every subsequent inadvertent production. Rather, it simply requires that the producing party give notice "within twenty (20) business days of discovering the inadvertent production." D.E. 194 ¶¶ 17, 18. MMO made a claw-back request for each disputed document within twenty business days of discovering that document's disclosure. It complied with the timing provision in the protective order.
Defendants also suggest that MMO did not comply with the protective order because it failed to timely serve a privilege log. But nothing in the protective order suggests that failure to serve a privilege log-or late service of a log-waives privilege.
The Court finds that MMO complied with the protective order's provisions governing inadvertent disclosure. Therefore, MMO did not waive privilege for Goroff Exhibits A through F.
5. Waiver During Deposition
Defendants argue that even if the parties' protective order supersedes
The Court finds the decision in In re Sulfuric Acid Antitrust Litigation more convincing. There, much like in the present case, the protective order contained a claw-back provision for inadvertently produced documents and information and gave the disclosing party thirty days to exercise it. In re Sulfuric Acid Antitrust Litig. ,
Furthermore, the Court believes that assessing defendants' separate waiver argument would amount to performing a
Conclusion
For the foregoing reasons, the Court denies defendants' motion seeking an order that MMO may not claw back certain produced documents [dkt. no. 303].
Notes
Defendants also argue that the documents are not work product, and that even if they are, defendants have demonstrated a substantial need for the documents. MMO has stated that it "is not asserting work-product protection" over these documents. Pl.'s Opp. at 10 n.9. Accordingly, this Court need not address defendants' work product arguments.
"When applying federal law ... the transferee court in an MDL proceeding applies the law of the circuit in which it sits." In re Testosterone Replacement Therapy Prod. Liab. Litig. Coordinated Pretrial Proceedings , No.
MMO's attorney declaration indicates that MMO might have provided a redacted version of Goroff Exhibit A to defendants. Hilton Decl. ¶¶ 28-30. Neither party, however, provided a redacted version of Exhibit A to the Court. Accordingly, the Court's order denying defendants' redaction request applies to all six documents in dispute.
Maxtena and the other out-of-circuit cases that defendants cite are unpersuasive given the protective order's language in the present case, as further discussed below. Finally, in one of the cases that defendants rely upon heavily, the parties did not have a court-entered protective order pursuant to
Furthermore, in Excel , the parties' protective order stated that inadvertent disclosures should be handled "consistent with