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Southern Illinois Laborers' And Employers Health And Welfare Fund v. Pfizer Inc.

December 21, 2007

SOUTHERN ILLINOIS LABORERS' AND EMPLOYERS HEALTH AND WELFARE FUND; NECA-IBEW WELFARE TRUST FUND; MIDWESTERN TEAMSTERS HEALTH AND WELFARE FUND; THE WELFARE FUND OF TEAMSTERS LOCAL UNION 863; PLUMBERS & PIPEFITTERS LOCAL UNION 630 WELFARE TRUST FUND; CLEVELAND BAKERS AND TEAMSTERS HEALTH AND WELFARE FUND; ELECTRICAL WORKERS BENEFIT TRUST FUND; FIRE & POLICE RETIREE HEALTH CARE FUND, SAN ANTONIO, LABORERS' DISTRICT COUNSEL BUILDING AND CONSTRUCTION HEALTH AND WELFARE FUND; LABORERS' DISTRICT COUNSEL HEAVY AND HIGHWAY UTILITY HEALTH AND WELFARE FUND, AND NEW YORK CITY POLICE SERGEANTS BENEVOLENT ASSOCIATION HEALTH & WELFARE FUNDS, INDIVIDUALLY, AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
PFIZER INC., DEFENDANT.



The opinion of the court was delivered by: Geraldine Soat Brown, Magistrate Judge

Judge John W. Darrah

Magistrate Judge Geraldine Soat Brown

MEMORANDUM OPINION AND ORDER

Before the court is Pfizer, Inc.'s Motion to Compel Plaintiffs to Provide Documents, Unredacted Claims Records, and Responses Concerning Pfizer's Proprietary Materials ("Pfizer's Mot."). [Dkt 133.] For the reasons set out below, the motion is granted.

BACKGROUND

The background of this case was set out in this court's prior opinion denying Plaintiffs' Motion to Modify Discovery. (Memorandum Opinion and Order ("November 14 Order").) [Dkt 166.] In summary, the plaintiffs are eleven healthcare benefit funds (collectively,"Plaintiffs") that pay for prescription medications for their members and those members' dependants. Plaintiffs' Second Amended Complaint alleges that defendant Pfizer conducted an illegal marketing scheme for its drug Lipitor that resulted in an artificially increased number of Lipitor prescriptions for which Plaintiffs were required to pay at improperly inflated prices. (Second Am. Compl. ¶¶ 3-5.) [Dkt 116.] Pfizer's motion to dismiss the Second Amended Complaint [dkt 153] is currently pending. The District Judge has extended discovery to March 31, 2008. [Dkt 176.]

Plaintiffs filed objections to this court's November 14 Order, which are still pending before the District Judge. [Dkt 173.] Subsequently, the parties filed a Joint Motion, asking that Plaintiffs' compliance with the November 14 Order be stayed because of the pending motions before the District Judge ("Jt. Mot."). [Dkt 177.] This court granted that motion, staying Plaintiffs' compliance with the November 14 Order until ten days after the District Court's final ruling on Plaintiffs' objections. [Dkt 180.]

In the present motion, Pfizer seeks documents and an answer to one interrogatory. Plaintiffs responded, arguing that the motion should be denied ("Pls.' Opp'n" [dkt 140]), and Pfizer filed a reply ("Pfizer's Reply" [dkt 141]). According to their Joint Motion to stay the November 14 Order, the parties believe that a ruling on the present motion is necessary, notwithstanding the events described above and their own agreed "informal stay of discovery." (Jt. Mot. at 5.)

ANALYSIS

I. Interrogatory No. 1 of Pfizer's Fourth Set of Interrogatories.

According to Pfizer, Plaintiffs somehow acquired "over 2,200 pages, along with audio and video cassette tapes and CDS, of internal, confidential, proprietary, and apparently misappropriated, Pfizer materials that [Plaintiffs] referenced in their pleadings and produced to Pfizer during discovery." (Pfizer's Mot. at 12.) Pfizer propounded an interrogatory to one of the Plaintiff Funds, asking it to "identify the individual or individuals who provided to [Plaintiffs] documents and other items bates stamped as PLCONS 000001-002269, and describe the circumstances under which these documents and materials were given or shown to [Plaintiffs]." (Pfizer's Mot., Ex. E at 3.) The Plaintiff Fund objected to the interrogatory on the ground that the information is protected work product. (Id.)*fn1 In response to Pfizer's motion, Plaintiffs argue that their counsel interviewed those individuals as part of counsel's pre-suit investigation and that answering Interrogatory 1would reveal attorney mental impressions and trial strategy, which are protected by the work product doctrine. ( Pls.' Opp'n at 12.)

The work product doctrine protects "documents and tangible things otherwise discoverable . . . prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative." Fed. R. Civ. P. 26(b)(3), emphasis added. While "the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation" are protected by the work product doctrine, id., the disclosure of facts cannot be precluded simply because the facts were learned by an attorney. See Hickman v. Taylor, 329 U.S. 495, 504, 506-07 (1947) (stating that "[a] party clearly cannot refuse to answer interrogatories on the ground that the information sought is solely within the knowledge of his attorney"). See also Edna Selan Epstein, The Attorney-Client Privilege and the Work Product Doctrine 488 (American Bar Association 4th ed. 2001) (stating that "the work-product protection cannot be asserted to prevent disclosure of the underlying facts, which are discoverable in any adversary proceeding"); 8 Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure: Civil 2d § 2023 at 330 (2d ed. 1994) (stating that courts consistently hold that the work product concept furnishes no shield against discovery of the persons from whom an attorney has learned facts).*fn2

Here, Pfizer is not seeking documents or tangible things that might include reference to Plaintiffs' counsel's strategy, but rather factual information: from whom specific documents were obtained and under what circumstances. As Pfizer argues, the persons who provided the documents are likely to have information relevant to Plaintiffs' claims and may be witnesses in the litigation. (Pfizer's Mot. at 13, 14.) Indeed, information about the source of the documents would likely be part of the authenticating foundation for any use of the documents as evidence. See Fed. R. Evid. 901.

In opposition, Plaintiffs cite two California cases in which defendants sought to compel plaintiffs to identify the employees who had provided information that plaintiffs' counsel used to draft the allegations of the complaint. In re MTI Tech. Corp. Sec. Litig. II, 2002 WL 32344347 at *1 (C.D. Cal. June 13, 2002) (Carter, J.) and In re Ashworth, Inc. Sec. Litig., 213 F.R.D. 385, 386 (S.D. Cal. 2002). The courts in those cases interpreted the defendants' interrogatory as seeking in effect the disclosure of plaintiffs' counsel's selection of witnesses to interview. MTI, 2002 WL 32344347 at *3; Ashworth, 213 F.R.D. at 388-89. The court in Ashworth observed that whether such information was protected work product was "unclear," but concluded that compelling an answer to the interrogatory created "a reasonable possibility" that the identity of persons the plaintiffs' counsel selected to interview "could be ferreted out," and "would necessarily reveal counsel's opinions regarding the relative ...


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