Evidence – Discovery – Attorney-client privilege – Work product

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Where the parties have become entrenched in an ongoing discovery dispute regarding documents that have been withheld or redacted by the defendant on the basis of the attorney-client privilege and work product doctrine, the defendant must abide by a set of rules devised by the court.

“… [Defendant] Astellas [Pharma US, Inc.] shall apply these rules to the documents currently withheld or redacted and produce additional materials to plaintiffs in accordance therewith. In the event that the parties encounter serious disagreement regarding the application of the rules and are unable to reach a satisfactory resolution by May 17, 2013, the parties shall notify the court, and I will appoint a special master to review initially a limited sampling of disputed documents chosen by plaintiffs.

“On a final note, it appears from my review of the submitted materials that Astellas has been overly conservative in its application of privilege. To encourage Astellas to be more freehanded in its production, I institute a ‘safe harbor’ policy with respect to this particular stage of discovery: if Astellas produces material which it later determines, in good faith, should have been withheld or redacted, it will enjoy the benefit of retracting that decision wrongly made without waiving the privilege. …

“… With respect to the specific contours of the present dispute:

“(1) Communications from Astellas’s in-house counsel Catherine Wertjes to outside counsel made, in confidence, for the purpose of seeking or receiving legal advice regarding the drafting and filing of the citizen petition are protected by the attorney-client privilege. … Communications from outside counsel to Wertjes are also entitled to the privilege to the extent that they relate to Astellas’s confidential communications in seeking legal advice. …

“(2) Communications from Astellas employees to Wertjes made, in confidence, for the purpose of seeking or receiving legal advice regarding the drafting and filing of the citizen petition are protected by the attorney-client privilege, provided that (a) Wertjes is functioning in her capacity as an attorney; and (b) the employees involved or included in such communications fall within the scope of the privilege as described in Upjohn v. United States, 449 U.S. 383 (1981). Relevant factors include whether those employees were corporate officers or ‘acting at the direction of corporate superiors’; ‘such communications were within the employees’ corporate duties’; ‘ the employees were sufficiently aware that information was sought from them in order to obtain legal advice’; and ‘the communications were considered confidential when made and were thereafter kept confidential by the corporation.’ Command Transp., Inc. v. Y.S. Line (USA) Corp., 116 F.R.D. 94, 95-96 (D. Mass. 1987) (citing Upjohn, 449 U.S. at 383). Communications from Wertjes to Astellas employees — subject to the same factors listed above — are also entitled to the privilege to the extent that they relate to legal advice. It must be emphasized that only Wertjes’s communications related to rendering legal advice are protected. Any communications by Wertjes pertaining to business matters, including the petition’s factual and technical content, objective merit, and timing of filing, are not privileged. There is no presumption that the privilege either arises or is waived merely as a result of the number of people involved in a communication.

“(3) Communications between Astellas’s employees that discuss or relay counsel’s legal advice related to the citizen petition are privileged to the extent that the employees are in a ‘need to know’ position or bear some responsibility for the subject matter underlying the consultation. …

“(4) Drafts of the citizen petition shared between counsel and Astellas employees that were prepared by, or at the direction, request, or advice of Wertjes or outside counsel are privileged. … However, to the extent that any drafts of the petition were shared with outside parties, such as public relations firms, the privilege is deemed waived with respect to those particular drafts. …

“(5) It does not appear that Astellas’s Senior Director Michael Ruggiero functioned in the capacity of counsel in providing legal advice to Astellas with respect to the drafting and filing of the citizen petition. Therefore, such communications and materials being withheld or redacted by Astellas on the sole basis of Ruggiero’s alleged status as counsel are not privileged and should be produced. … To the extent that Astellas can demonstrate that Ruggiero did act as a lawyer in giving legal advice on matters other than the citizen petition, those communications may be privileged.

“(6) Communications between either Astellas or outside counsel and employees of public relations firms Hill & Knowlton and Fleishman-Hillard are neither privileged nor protected work product. Astellas has not shown that communications with either firm were necessary, or at least highly useful, for the rendering of legal advice. … Rather, it appears that both Hill & Knowlton and Fleishman-Hillard provided Astellas with standard public relations services related to the filing and outcome of the citizen petition and any subsequent business or media fallout. Moreover, even if the firms provided public relations advice or documents bearing upon potential litigation over the citizen petition, such materials fall outside the scope of work-product protection, which is intended ‘to provide a zone of privacy for strategizing about the conduct of litigation itself, not for strategizing about the effects of the litigation on the client’s customers, the media, or on the public generally.’ Calvin Klein Trademark Trust v. Wachner, 198 F.R.D. 53, 55 (S.D.N.Y. 2000).

“(7) Draft versions of a declaration submitted by Heather Goodman of the consulting firm Two Labs Marketing to the D.C. federal district court in support of Astellas’s lawsuit against the FDA, as well as communications between Goodman and Astellas or outside counsel regarding the content of and revisions to that declaration, are protected by the work-product doctrine. … The results of paralegal Marilynn Whitney’s monitoring of the generic tacrolimus market, conducted at the request of Wertjes and outside counsel, is work product and remains protected even if shared with Goodman and Rich Wartel of Two Labs Marketing, a ‘friendly party.’ …

“(8) Astellas has not shown how its communications with Putnam Associates, an outside strategy consulting firm, while relevant to business matters, were necessary or highly useful for counsel to render legal advice to Astellas. … Thus, such communications are not privileged. However, redactions made for nonrelevance (e.g., regarding Astellas products other than Prograf) may remain.”

            In Re: Prograf Antitrust Litigation (Lawyers Weekly No. 02-212-13) (8 pages) (Zobel, J.) (USDC) (Docket No. 1:11-md-02242-RWZ) (May 3, 2013).

Click here for the full-text opinion.