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In re Abilify (Aripiprazole) Products Liability Litigation

United States District Court, N.D. Florida, Pensacola Division

December 29, 2017


          M. Casey Rodgers Chief Judge



         Pending before the Court is Plaintiffs' Motion to Compel Production of Certain Documents on Defendants' Privilege Logs. ECF No. 562. Defendants have filed an opposition to the motion. ECF No. 573. The Defendants also submitted for in camera inspection forty-two (42) documents identified on their privilege logs, which were identified in Plaintiffs' motion to compel. After submission of the sample documents the Defendants then submitted for in camera inspection, the remainder of the documents on their respective privilege logs. The Court has conducted an in camera inspection of all of the documents Defendants submitted.

         For the reasons discussed below, the Court concludes that Plaintiffs' motion to compel is due to be granted as to a limited number of documents and is due to be denied as to the remaining documents on Defendants' privilege logs. The Court's ruling with respect to each document on the privilege logs is contained on the modified privilege logs attached to this order as exhibits A and B, and which have been filed under seal.


         Plaintiffs challenge Defendants' assertion of privilege concerning various documents Defendants produced during the general causation phase of discovery. The privileged documents are identified on privilege logs Defendants, Bristol-Myers Squibb. Co. (“BMS”) and OAPI served on May 3, 2017. The privilege logs identify each document or set of documents by “Family Bates Range, ” Location, Privilege Claim Status, Date, Custodian, To/Recipients, From, CC's, BCC's, Legal Personnel (Title), Privilege Basis, and Description. On the initial privilege logs BMS asserted attorney-client privilege or work product protection on 775 documents and OAPI asserted privilege on 661 documents. Between May 2017 and early October the parties conducted a number of meet and confers in an effort to narrow, clarify and resolve the claims of privilege on the privilege logs. During this period of time Plaintiffs withdrew 227 of their challenges to OAPI's logs and 138 challenges to BMS' logs and BMS has withdrawn 246 claims of protection. In an effort to resolve any remaining disputes concerning privileged documents the Court directed Plaintiffs to file any motions to compel based upon Defendants' general causation discovery privilege logs by October 9, 2017. The motion to compel that is the subject of this order is the motion that seeks to compel the documents on Defendants' privilege logs.

         The present motion is based upon 434 remaining claims of protection in OAPI's log, and 391 claims of protection in BMS's logs.[1]

         In Plaintiffs' motion to compel, Plaintiffs identify approximately 138 documents, which Plaintiffs argue underscore their challenges to Defendants' claims of attorney-client privilege and work-product protection. Because the Court had mentioned at a hearing that it may need to conduct some measure of in-camera inspection, Defendant OAPI submitted to the Court for in camera review a binder containing ten (10) categories of documents and an ex-parte Declaration of R. Monica Hennessy, a Senior Corporate Attorney employed by Otsuka Pharmaceutical Development & Commercialization, Inc. Ms. Hennessy identifies in her declaration the role of the third parties identified in some of the documents.

         BMS also submitted documents to the Court for in camera review. BMS submitted eleven (11) documents or document families for in camera inspection. All of the sample documents OAPI and BMS submitted for in camera review were documents listed on Defendants' privilege logs and cited in Plaintiffs' Motion to Compel. After submission of the sample of documents, at Plaintiffs' request, the Court permitted Plaintiffs to select an additional twenty-one documents and directed Defendants to provide those documents to the Court for in camera inspection. The Court thereafter elected to review all of the documents on Defendants' privilege logs to ensure that every document withheld was based upon the valid assertion of a privilege. The Court has now received and reviewed those additional documents[2] and (as requested by the Court) further affidavits of counsel detailing pending or threatened legal proceedings.[3]


         As a general proposition claims of attorney-client privilege and work product protection should be fairly straightforward in application. But, as is the situation in most complex cases litigated in federal court, disputes arise frequently concerning whether documents are privileged. Raising claims of privilege and resolving these claims require the parties to incur great expense and expend extensive time reviewing, identifying and litigating claims of privilege. This case is certainly no different.

         Defendants primarily raise two types of privilege claims-attorney-client and work product. While both doctrines protect from disclosure documents and other information, there are differences between the two. With regard to attorney-client privilege the underlying purpose of the doctrine is to encourage the client to communicate freely with the attorney. Work product protection on the other hand encourages careful and thorough preparation by the attorney. And sometimes both doctrines may apply to a single communication. An email or memo may contain confidential legal discussions between client and lawyer and at the same time disclose the preparation by the attorney in anticipation of legal proceedings. But even though a party claims both privileges or protections as to the same document the Court must analyze the applicability of each privilege or protection separately.

         In this case, Plaintiffs challenge as a threshold argument the sufficiencies of Defendants' logs. Plaintiffs say that Defendants' logs are so inadequate that the logs as a whole are legally insufficient to raise claims of privilege. Alternatively, Plaintiffs argue that nine specific categories of objections are suspect or insufficient to support Defendants' claims of privilege. The Court will first address the sufficiency of Defendants' logs and then resolve whether Defendants' claims of privilege as to specific categories of documents are well supported.


         A. Defendants' privilege logs are adequate to assess the claims of privilege.

         Plaintiffs argue that the log descriptions are so inadequate that it constitutes a waiver of Defendants' claims of privilege or simply are insufficient to meet Defendants' burden of establishing that the documents on the privilege logs are privileged. The Court disagrees for at least two reasons.

         First, the privilege logs contain the information required in the Court's February 7, 2017, Order for Preservation and Production of Documents, Electronically Stored Information, and Privileged Documents. (The “ESI Order.”) ECF No. 183. The Court's ESI Order required Defendants to include on their logs: the nature of the privilege; the factual basis for the privilege; the date of the document; the name of the author and all recipients and whether any person identified is an attorney or an employee of the Defendants' legal department; a description of the general subject matter contained in the document and the type of document sufficient to allow Plaintiffs to assess the claimed Privilege and to allow the Court to rule on the claimed Privilege; the location of the document; and the custodian. ECF No. 183, ¶ 1.2. BMS's and OAPI's logs contain this information.

         The privilege logs are consistent with the mandate of Rule 26(b)(5) of the Federal Rules of Civil Procedure. The Rule requires a party to provide a document index when a claim of privilege is asserted. The index must “describe the nature of the documents, communications, or tangible things not produced or disclosed-and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.”

         The information required by the ESI Order is the type of information most courts require a party to include in a privilege log and it is generally accepted practice that this type of information is sufficient for purposes of satisfying Rule 26(b)(5). Other courts, as well, have recognized that a privilege log with the categories of information Defendants included is a proper privilege log. See, e.g. In re Denture Cream Products Liability Litigation, No. 09-2051-MD, 2012 WL 5057844, *9 (S. D. Fla. Oct. 18, 2012; Arthex, Inc. v. Parcus Medical, LLC, No. 2:11-cv-694-FtM-29SPC, 2012 WL 3778981 (M.D. Fla. Aug. 31, 2012)(“[a] proper privilege log should contain ... (1) the name and job title or capacity of the author ...; (2) the name ... of each recipient ...; (3) the date the document was prepared ... and the date(s) on which it was sent to or shared with persons other than the author(s); (4) the title and description of the document; (5) the subject matter addressed in the document; and (6) the specific basis for the claim that it is privileged.”)

         Although more detail could have been provided in Defendants' privilege logs concerning the description of the documents being withheld, the Court concludes that the descriptions in conjunction with the other information disclosed is sufficient to make Defendants' privilege logs proper for purposes of challenging the privilege asserted.

         Even though more information could have been provided in the description portion of the privilege logs, any shortcoming does not impact the determination of whether the privilege has been asserted validly to any particular document because the Court has reviewed in camera every document listed on Defendants' privilege logs. Therefore, to the extent Plaintiffs complain that the descriptions are not adequate for Plaintiffs to challenge Defendants' assertion of privilege the Court's in camera inspection as a practical matter has remedied any shortcoming about which Plaintiffs complain.[4]

         B. Defendants' privilege logs are not deficient becauseDefendants did not ...

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