Class Action Discovery Disputes Require Creative Approaches to Resolve and Use of Special Master to Resolve Class Action Discovery Issues for Louisiana Federal Court
Numerous class action and individual lawsuits have been filed against Merck arising out of its manufacture and sale of Vioxx, and the Judicial Panel on Multidistrict Litigation coordinated the federal cases for pretrial purposes under 28 U.S.C. § 1407 in the Eastern District of Louisiana. In re Vioxx Products Liab. Litig., 501 F.Supp.2d 789, 790 (E.D. La. 2007). The district court “appointed committees of counsel to represent the parties” and discovery proceeded “on two parallel tracks” – one by the plaintiff and defense Steering Committees, “charged with initiating, conducting, and coordinating all non-case-specific discovery,” and one that focused on the on “case-specific discovery in thousands of individual cases” in which “every plaintiff who alleges a cardiovascular injury” must provide Merck with certain information, following which Merck is required to disclose case-specific information concerning contacts it had with plaintiffs’ doctors “and any other relevant information Merck may have about individual plaintiffs.” Id., at 790-91. Defense attorneys refused to produce certain information based on the attorney-client privilege, leading to the court’s in camera review of 81 boxes containing 30,000 documents totaling 500,000 pages. Id., at 791. The court opinion we summarize in this article involves a discovery dispute over those documents. In the words of the district court, “This discovery dispute has dragged on for over a year and at times has seemed hopelessly endless. Although Merck has produced over two million documents in this MDL, the company has also asserted attorney-client privilege as to approximately 30,000 documents which it contends need not be produced. ” Id., at 789.
We do not here summarize the extensive details of the discovery process, see In re Vioxx, at 790 et seq., or the district court’s extensive discussion of the attorney-client privilege, id., at 795 et seq. We summarize the following. “The majority of the withheld documents are print-outs of electronic communications, primarily internal company e-mails and attachments.” Id., at 789. Merck sought appellate review of a discovery order, and while the Fifth Circuit denied review it instructed the district court to devise a better way of dealing with discovery disputes, id., at 791. In an effort to implement the Fifth Circuit’s recommendation, Merck gave the court 10 boxes containing roughly 2,000 documents that were “representative of all the documents in question.” Id. In response, the court appointed a special master/expert to review the sampling of the documents in question and provide a recommendation as to the privilege asserted by defense counsel.
The Special Master established the following guidelines: 1) the attorney-client privilege applies to memoranda “addressed solely to an attorney with apparently limited circulation and an identifiable legal question was raised by the author”; id., at 809; 2) e-mails addressed “to both lawyers and non-lawyers for review, comment, and approval” are not privileged, nor are the attachments thereto, because “[a] corporation’s choices of means and format in the communications between their lawyers and employees cannot limit their adversaries’ right to discovery of what otherwise is non-privileged and discoverable,” and because under such circumstances the burden is on the party asserting the privilege “to overcome the logical inference created by the pattern of distribution,” id., at 809-10; 3) communications and attachments that “serve mixed purposes” and that “were sent to both lawyers and non-lawyers for both legal and non-legal purposes” are not privileged, nor are the edits made by attorneys on those “non-privileged communications,” because “[e]ven if the derivative theory had not made the attorneys’ responses non-privileged, the manner in which Merck lawyers rendered their advice would have,” id., at 810-11; 4) memoranda “written only to an attorney within the corporation’s legal department, with an attachment for examination, review, comment, and approval” are protected by the privilege “unless the document on which comments and changes were being proposed was not a typical legal instrument and the response had changes and commentary that were extensive or related purely to technical, scientific, promotional, management, or marketing matters that did not appear to be related to legal assistance,” id., at 811, 5) e-mails that initially were privileged but were then “sent to others after the initial interaction with lawyer ended” were not privileged unless it was sent “for the purpose of acquiring more information upon which more informed legal advice or assistance could be rendered,” id., at 811-12; 6) e-mails addressed to an attorney but copied to non-lawyers “raised a question as to whether the primary purpose of the communication was for legal advice or assistance” and gave rise to a logical inference “that copies were being sent simply to inform those recipients of the nature of the legal advice being sought” and so the privilege would apply, but the same could not be said if “the communications were part of a mandatory process of company-wide review, comment, and approval,” id., at 812; 7) e-mails to or from an attorney that “did not reveal the substance of what either the client was communicating…or the attorney was advising” were not protected by the privilege, id.; 8) e-mail threads that in places included attorneys generally were not protected by the privilege, though “the entirety of the threads were found to be privileged when they were subsequently integrated into privileged communications solely to attorneys for legal advice and, therefore, not otherwise discoverable,” id., at 812-13, 9) the attorney work product doctrine extended a “qualified immunity to communications that are created in preparation for litigation” so long as “the litigation anticipated be identified” and the defense can establish “that the communication in question was in preparation for that litigation,” but this does not include “communications related only to things like news releases,” id., at 813.
The district court adopted the Special Master’s recommendations in part and denied them in part. In re Vioxx, at 815-16. We do not here summarize the few case-by-case instances in which the court denied the recommendations of the Special Master; the reader may find those in the court’s opinion.