Moore v. Medeva Pharm., et al.

2003 DNH 129

• Court: District Court, D. New Hampshire
• Decided: July 23, 2003
• Docket: CV-01-311-M
• Status: Published

Opinion

Moore v . Medeva Pharm., et a l . CV-01-311-M 07/23/03 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Linda E . Moore and Wallace Moore, Plaintiffs

v. Civil N o . 01-311-M Opinion N o . 2003 DNH 129 Medeva Pharmaceuticals, Inc., a/k/a Celltech Pharmaceuticals, Inc. and Celltech Pharmaceuticals Ltd., Defendants

O R D E R

On April 1 7 , 2002, Medeva Pharmaceutical, Inc., a/k/a

Celltech Pharmaceuticals, Inc. (“CPI”) produced a compact disk

and approximately four thousand pages of documents in response to

plaintiffs’ production request. Subsequently, CPI claimed it had

inadvertently produced three pages of documents it said were

privileged. Accordingly, it moved the court to preclude

plaintiffs from using those documents and to order their return.

That motion was denied. See Moore v . Medeva Pharmaceuticals,

Inc., 2003 DNH 060 (D.N.H. April 9, 2003). CPI did not move for

reconsideration. Two months later, dissatisfied with the court’s ruling on

that motion, CPI’s co-defendant, Celltech Pharmaceuticals Ltd.

(“Celltech”), filed its own motion seeking to preclude plaintiffs

from using those, as well as other, documents it says CPI

inadvertently disclosed during discovery. That motion too is

denied.

Discussion

In support of its motion, Celltech says the court erred in

concluding that the documents produced by CPI were not protected

by the attorney-client privilege (or, more specifically, that CPI

waived the privilege). Alternatively, Celltech suggests that if

allowed to present a more complete record than that developed by

CPI, it will demonstrate that the subject documents are, in fact,

privileged and that no waiver ever occurred.

Even assuming Celltech is in a position to assert that its

co-defendant inadvertently produced otherwise privileged

materials during the course of discovery (under traditional

notions of “standing,” or otherwise), the time to make that

argument has long since passed. Celltech was served with a copy

2 of CPI’s motion. It did not, however, join in that motion, nor

did it file a timely motion for reconsideration.1 Instead, after

the court denied CPI’s motion, Celltech filed a virtually

identical motion of its own. As plaintiffs correctly note, it

would certainly seem that “[d]efendants are attempting to ‘swap

movants,’ resurrect the prior argument [concerning privilege and

inadvertent disclosure], and expand the claim of privilege [to]

documents not previously contested as such.” Plaintiffs’

memorandum (document n o . 72) at 4 .

The court is disinclined to resolve this, or any other

pretrial or discovery issue, on a serial or piece-meal basis.

See, e.g., Christianson v . Colt Indus. Operating Corp., 486 U.S.

800, 817 (1988) (noting that although a “court has the power to

revisit prior decisions of its own or of a coordinate court,” it

should be “loathe to do so in the absence of extraordinary

1 In its order of April 9, 2003, the court resolved both CPI’s motion in limine concerning the allegedly privileged documents as well as Celltech’s motion to quash service. But, even if Celltech chose not to join CPI’s motion in limine pending a ruling on its motion to quash (i.e., until it knew whether it was properly made a party to this litigation), once its motion to quash was denied, Celltech certainly could have moved the court to reconsider either that ruling or its ruling on CPI’s motion in limine.

3 circumstances such as where the initial decision was clearly

erroneous and would work a manifest injustice.”) (citation and

internal quotation marks omitted). Here, there has been, at the

very least, no showing that a failure to revisit the court’s

prior order would subject Celltech to “manifest injustice.” So,

having addressed and resolved the issue of whether CPI

inadvertently produced privileged materials, the court will not

reopen that issue.

Conclusion

For the foregoing reasons, and for the reasons set forth in

the court’s order dated April 9, 2003 (document n o . 6 3 ) , as well

as those set forth in plaintiffs’ memorandum (document n o . 7 2 ) ,

Celltech’s motion for protective order and to exclude the use of

inadvertently produced privileged documents (document n o . 66) is

SO ORDERED.

Steven J. McAuliffe United States District Judge

July 2 3 , 2003

4 cc: John H . O’Neil, Jr., Esq. Jennifer Humphreys, Esq. Kevin H . O’Neill, Esq. Daniel P. Gibson, Esq. Peter C . Neger, Esq. David M . Cohen, Esq.