Smith v. Armour Pharmaceutical Co.Smith v. Armour Pharmaceutical Co.
- Reporters:
- , , ,
- Before:
- King
ORDER GRANTING DEFENDANT MILES’ MOTION TO STRIKE ALL REFERENCES TO THE “ED CUTTER MEMORANDUM” AND MOTION FOR PROTECTIVE ORDER
THIS CAUSE сomes before the Court on Defendant Miles’ Motion to Strike A1 References to the “Ed Cutter Memorandum” and Motion for Protective Order, filed August 18, 1993. (D.E. # 43). Plaintiff filed a Memorandum in Opposition to Defendant Miles’ Motion to Strike on September 3. (D.E. #53). On that same day, Plaintiff filed a Notice of Supplemental Authority in Opposition to Defendant Miles’ Motion tо Strike. (D.E. # 52). On September 10, Defendant Miles filed a Reply to Plaintiffs Opposition to its Motion to Strike. (D.E. #55). Defendant Miles on September 13 filed a Response in Opposition to Plaintiffs Notice of Supplemental Authority. (D.E. #57). On that same day, Plaintiff filed a Second Notice of Supplemental Authority in Opposition to Defendant Miles’ Motion to Strike. (D.E. #58). Defendant Miles on September 16 filed a Response in Opposition to Plaintiffs Second Notice of Supplemental Authority. (D.E. # 60). On September 27, Plaintiff filed a Reply to Miles’ Response in Opposition to Plaintiffs Second Notice of Supplemental Authority. (D.E. #70). On October 25, Plaintiff filed a Third Notice of Supplemental Authority. (D.E. # 87). And on November 1, Plaintiff filed a Fourth Notice of Supplemental Authority. (D.E. #94). Defendant
At issue is whether the “Ed Cutter Memorandum” is currently covered by the attorney-client privilege.
I. Factual Background
This is a suit filed by a hemophiliac who allegedly contracted HIV (the AIDS virus) from blood clotting products mаnufactured by Defendants. Numerous similar suits have been instituted against one or more of these same defendants. In one of those similar suits, Keller v. Cutter Laboratories, Division of Miles, Inc., No. 88-14059-CIV-RYS-KAMP (S.D.Fla. Nov. 6, 1989), outside counsel for one of the defendants, Miles, Inc. (“Miles”), inadvertently included a memorandum in a document production for the plaintiffs in that suit. That document was a memorandum from Ed Cutter, in-house сounsel of one of Miles’ subsidiaries known as Cutter Laboratories. The “Ed Cutter Memorandum” (the “Memorandum”) had been distributed to several managers of Cutter. The Memorandum stated that although very little was known about AIDS and the relationship Cutter’s products had in causing the syndrome, “litigation is inevitable”. The Memorandum consequently recommended sevеral specific steps to “demonstrate diligence in passing along whatever we do know to the physicians who prescribe the product.”
When Miles discovered that opposing counsel in that case was in possession of this document, it immediately acted to prevent its use and distribution. Counsel for both sides stipulated that the dоcument would be neither used nor distributed (except for being able to question original recipients about it). The court issued an order confirming the stipulation and requiring the plaintiff’s counsel to petition the court for permission if he wanted to show the document to anyone other than a Cutter employee.
The plaintiff’s attorney in
Keller
was also serving as counsel to plaintiffs in a similar ease,
Ray v. Cutter Laboratories, Division of Miles, Inc.,
Since the apparently unauthorized disclosure of the Memorandum, the contents of the Memorandum have become widely known. Various plaintiffs in independent actions against Miles have sought to make use of the document, and accounts of the Memorandum have been published in a variety of newspapers from Alaska to Florida.
In all of the actions where the plaintiffs have sought to make use of the document, Miles has challenged the use of this document with generally unfavorable results. One court found that the document was not at any point covered by the attorney-client privilege. All other courts found that the document had beеn privileged originally, but most held that the privilege had been waived or otherwise eliminated by one means or another. One court found that the wide publication of the document in newspapers across the country had eliminated any claim that the document remained confidential. Another court held that Miles’ defense to reporters, in which it made references to the document, essentially waived the privilege that the document had previously enjoyed. And still another court held that Cutter had been responsible for the disclosure because it had exercised inadequate supervision of the discovery process. Finally, some courts gave nо reasons for their denial of Defendant Miles’ motion to strike. Plaintiffs Memorandum in Opposition cites these decisions of other courts and generally focuses on the fact that the Memorandum is now part of the public record and the fact that Cutter further waived any claim to confidentiality when it defended the contents of the Mеmorandum in interviews with the news media.
For the reasons set forth below, this Court holds that the “Ed Cutter Memorandum” is a document that originally was covered by the attorney-client privilege and that the Memo
II. Was the Memorandum Ever Protected by the Attorney-Client Privilege?
With one exception, all courts considering this matter have concluded that the “Ed Cutter Memorandum” was, indeed, originally protected by the attorney-client privilege. The Memorandum was written by the in-house counsel of Cutter and is specifically addressed to the inevitability of litigation. The attorney writing the Memorandum was writing from the legal, rather than scientific, perspective.
III. Has the Privilege Been Lost Because of Public Circulation of the Contents
of the Memo?
In its Memorandum in Opposition to Defendant Miles’ Motion to Strike, Plaintiff places great emphasis on the wide circulation of the Memorandum’s contents. He stresses that the Memorandum “has become a matter of genеral public knowledge”, and that “it is available from other public sources”, including newspaper articles. However, the wide circulation of the Memorandum provides insufficient grounds, by itself, for revoking the document’s privilege.
Recognizing that, in practical terms, the contents of the document are no longer confidential is different from ruling that, in legal terms, the client holding the privilege has lost the privilege because someone else disclosed the document to the public. In Florida, for a privileged document to lose that status, it must be found that the holder of the privilege intentionally waived his rights. In the case of the attorney-client privilege, it is the client who holds the privilege and who must be found to have intentionally waived his rights. The fact that the contents of the document have become widely known is not dispositive of the legal privilege attaching to the document.
Plaintiff apparently is arguing the traditional Wigmorian view of privilege, and in so doing, Plaintiff misapprehends the law of Florida. The trаditional Wigmorian view of privilege held that once the contents of the subject document had become public, regardless of the means by which this came about, the document’s confidentiality and privilege had been destroyed. This strict view of the privilege was rejected by the Florida legislature when it enacted its statutes governing privilege. Critical language of Florida Statutes § 90.502(l)(c) is identical to that of Rule 503(a)(4) of the Proposed Federal Rules of Evidence. Both focus on intent and state that a communication “is ‘confidential’ if it is not intended to be disclosed to third persons.” Rule 503(a)(4) of the Proposed Rules has been acknowledged as rejecting the Wigmorian view of privilege.
See, e.g., Lois Sportswear, U.S.A, Inc. v. Levi Strauss & Co.,
This Court has held that counsel’s inadvertent disclosure of privileged documents during discovery is insufficient by itself to constitute a waiver of the privilege.
Georgetown Manor, Inc. v. Ethan Allen, Inc.,
Plaintiff quotes
Hamilton v. Hamilton Steel Corp.,
After all, what if a confidential memorandum is stolen from an attorney’s office and subsequently published in newspapers across the country? Clearly, the client should not be held to have waived the attorney-client privilege. The fact that the contents of a privileged document have become widely known is insufficient by itself to eliminate the privilege that covers the document. Although in practical terms the document has lost any semblance of confidentiality, the Court in legal terms must recognize that the client has not intentionally waived the privilege. The law is clear; it is only the client who has the power to waive the attorney-client privilege. To hold that public circulation eliminates the privilege would, in effect, give any individual who secured a privileged document the power to waive thе attorney-client privilege by simply having the contents widely recounted in newspaper reports.
IV. Did Cutter Waive its Privilege By Speaking with the News Media?
Plaintiff points to one district court’s ruling that Cutter’s actions in discussing the contents of the Memorandum with the news media effectively waived the privilege that had previously existed. In Roe v. Miles Laboratories, Inc., No. A89-098 Civil (D. Alaska April 10, 1991), the United States District Court for the District of Alaska held that although the contents of the memo had been privileged, Cutter effectively waived that privilege when it publicly commented on the substance and meaning of the document.
However, as is apparent on the face of the newspaper articles attached by Plaintiff, Cutter through its representative Bud Modersbach neither disclosed the existence of, nor the substantive contents of, the Memorandum. In fact, the uncontroverted assertion of Defendant Miles is that the reporter read the Memorandum verbatim to Modersbach, who then merely defended his company by explaining the limited scope of the Memorandum, that it was nothing more than a legal suggestion by an attorney unfamiliar with the scientific and other technical implications of his proposal. Clearly, such circumstances would not constitute a knowing waiver of the privilege through an intentional disclosure, as required by Florida statute.
In the context of a document’s theft, as proposed above, should a client be prohibited from offering an exculpating explanation of the contents of the document when a reporter presents him with a copy? There is a large difference between, on one hand, disclosing the existence of, and contents of, a document and, on the other hаnd, merely trying to control the damage and extinguish the fire when one is presented with a copy of the document whose existence and contents have already become public knowledge. The circumstances of this case clearly implicate the latter of these alternatives. Cutter disclosed neither the existеnce of, nor the contents of, the Memorandum; the Memorandum had already been widely circulated. As one newspaper article characterized Cutter’s statements, “A Cutter attorney downplayed the memorandum’s importance.” Tom Brennan, Slip-up Reveals Memo Warning of AIDS Danger, Tampa Trib., May 18,1990, at 1A. In the face of public disclosure, Cutter should not be gagged fоr fear of waiving the privilege that would otherwise apply to the Memorandum.
V. Has Cutter Waived the Attorney-Client Privilege By Exercising Inadequate Supervision Over the Discovery Process?
One trial court has held that the privilege had been waived because,
inter alia,
Cutter had failed to have in place “sufficient precaution mechanisms” tо identify and remove the confidential document from the discovery production.
Ray v. Cutter Laboratories, Division of Miles, Inc.,
VI. Does This Court Have the Power to Provide the Relief Requested,
By Defendant Miles?
This Court is clearly competent to make an independent assessment of whether the document at issue is covered by the attorney-client privilege — and it holds that the document is, indeed, privileged. However, the law is unsettlеd as to whether a court has the power to limit the use of documents obtained by means other than that court’s discovery process.
The Second Circuit has held that, at least in the context of
A bright-line rule prohibiting a court from regulating the use of information or documents obtained through means other than discovery in the pending proceeding would result in inequitable consequences and could undermine the integrity of a court’s judicial proceedings. Suppose a plaintiff burglarized a defendant’s premises and secured privileged documents. Could one seriously contend that a court could not prohibit the use of those documents in the proceeding pending before it simply because the documents were not obtained through the court’s discovery process? Bridge C.AT. Scan and Kirshner stand for the proposition that the court in such a situation could not issue a protectivе order preventing the plaintiff from disclosing the information to the public or compelling the plaintiff to return the documents to the defendant (ie., controlling the documents outside the court); but these cases would not prohibit a court from exercising its equitable powers to control, and preserve the integrity of, its judicial procеedings by limiting the use to which the documents could be put in the proceedings pending before the court.
VII. Conclusion
The “Ed Cutter Memorandum” was originally protected by the attorney-client privilege, that privilege was never waived, and this Court has the power to protect the integrity of its judicial proceedings by limiting the use to which the document cаn be put. Accordingly, after a careful review of the record, and the Court being otherwise fully informed in the premises, it is
ORDERED, ADJUDGED, and DECREED that Defendant Miles’ Motion to Strike All References to the “Ed Cutter Memorandum” and Motion for Protective Order be, and the same is hereby, GRANTED. All references to the “Ed Cutter Memorandum” will be ignored by the Court, and Plaintiff is prohibited from citing the Memorandum in the future course of this litigation.
DONE and ORDERED.