Med. Mut. of Ohio v. Abbvie Inc. (In re Testosterone Replacement Therapy Prods. Liab. Litig.)

301 F. Supp. 3d 917
CourtDistrict Court, E.D. Illinois
DecidedMarch 14, 2018
DocketMDL No. 2545; Case Nos. 14 C 1748; 14 C 8857
StatusPublished
Cited by3 cases

This text of 301 F. Supp. 3d 917 (Med. Mut. of Ohio v. Abbvie Inc. (In re Testosterone Replacement Therapy Prods. Liab. Litig.)) is published on Counsel Stack Legal Research, covering District Court, E.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Med. Mut. of Ohio v. Abbvie Inc. (In re Testosterone Replacement Therapy Prods. Liab. Litig.), 301 F. Supp. 3d 917 (illinoised 2018).

Opinion

MATTHEW F. KENNELLY, District Judge:

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 *921that it determines is protected from discovery by, among other things, the attorney-client privilege, the producing party must notify the receiving party and the MDL plaintiffs' co-lead counsel in writing within twenty business days of discovering the inadvertent production. Id. ¶ 18. Paragraph Eighteen sets forth the procedures that the receiving party and plaintiffs' co-lead counsel must follow to sequester the document(s), determine whether to challenge the producing party's claim of privilege or protection from discovery, and, if applicable, destroy the document(s). Id. Paragraph Eighteen also states:

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 under Rule 502(d) of the Federal Rules of Evidence. Accordingly, as is explicitly set forth in Rule 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 *922contains Dr. Canaday's response. Goroff Ex. E.

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.

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Bluebook (online)
301 F. Supp. 3d 917, Counsel Stack Legal Research, https://law.counselstack.com/opinion/med-mut-of-ohio-v-abbvie-inc-in-re-testosterone-replacement-therapy-illinoised-2018.