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In Re: Yasmin and Yaz (Drospirenone) Marketing

June 17, 2011


The opinion of the court was delivered by: Honorable David R. Herndon Chief Judge, United States District Court

This Document Relates to: ALL CASES



I. Introduction

This matter is before the Court for the purpose of addressing the plaintiffs' challenge to Bayer's decision to withhold 330 documents from production based on the attorney-client privilege and/or the work-product doctrine. The Court has reviewed the parties' briefings and has completed an in camera review of the disputed documents. As is explained below, with one potential exception, the Court upholds Bayer's assertion of attorney-client privilege and work-product protection in every instance. See § VI (conclusions of the court) and § VII (summary of findings), below.

II. Background

To date, Bayer has produced just over 3.5 million documents (over 70 million pages) (Bayer's Brief, Doc. 1738 p.1 n.1). Bayer has withheld 16,791 unique documents (23,979 documents counting duplicates) as shielded by attorney-client privilege. Id. Of those unique documents, Bayer asserts that 8,560 are also protected under the work-product doctrine. Id. On November 23, 2010, the Plaintiffs' Steering Committee ("PSC") notified Bayer that it intended to challenge Bayer's designation and withholding as "privileged" of 330*fn1 documents listed on Bayer's privilege log. Id. at p. 1; March 14, 2011 PSC letter brief to Court p. 2. *fn2

The parties attempted to independently resolve the challenges but could not reach an agreement regarding what law governed Bayer's work-product and attorney-client privilege claims. The parties presented the choice-of-law issue to the Court in March 2011. On April 12, 2011 the Court issued its ruling on the choice-of-law principles to be applied to the privilege claims (Doc. 1660). In addition, the Court directed the parties to consider the Court's choice-of-law ruling and to re-review the challenged documents in light of that ruling. Id.

After numerous meet and confers, the number of disputed documents was reduced from 330 to 233, 158 of which are unique and 75 of which are duplicates (Bayer's Brief, Doc. 1738 p. 2). On May 23, 2011, the parties submitted the 158 unique (233 total) documents to the Court for an in camera review. That same day, the parties submitted simultaneous briefs addressing the relevant issues (Plaintiffs' Brief, Doc. 1738; Bayer's Brief, Doc. 1740). Responsive briefing was submitted by both parties on June 3, 2011 (Plaintiffs' Response, Doc. 1761; Bayer's Response, Doc. 1762).

III. Governing Law

The parties agree that, in light of the Court's April 12th Order addressing choice of law, New Jersey law governs the existence and scope of attorney client privilege.*fn3 As the Court explained in its April 12th Order, federal law governs with respect to questions of work-product protection (Doc. 1660 p. 3). Accordingly, with respect to attorney-client privilege the Court is guided by New Jersey law and with respect to work-product the Court is guided by federal law.


A. Attorney-Client Privilege, Content-Based Arguments

In their initial brief, Bayer divides the disputed communications into five categories: (1) Communications Between Counsel and Corporate Employees Seeking or Relaying Legal Advice; (2) Requests from Counsel for Information and Responses thereto for the Purpose of Providing Legal Advice; (3) Communications Disseminating Legal Advice within the Corporate Structure; (4) Communications with Third-Party Agents and Consultants Assisting Attorneys in Providing a Legal Response; and (5) Draft Documents Conveying Legal Advice. Bayer contends that each of these categories is protected from disclosure under the attorney-client privilege (Bayer's Brief, Doc. 1738 pp. 9-19).

Plaintiffs do not necessarily disagree that these categories of communications may be protected under the attorney-client privilege. In fact, in many instances, the plaintiffs acknowledge that the disputed documents may be protected from disclosure under the attorney client privilege. The central argument in the plaintiffs' briefing is that Bayer's attorney-client claims are premised on the content of the communications, and that in camera review is therefore necessary to determine whether the documents are in fact protected from disclosure (Plaintiffs' Brief, Doc. 1740 pp. 2-4).

For example, while plaintiffs acknowledge that communications conveying legal advice are subject to the attorney-client privilege, they question whether 88 of the disputed communications could really fall into this category (and/or additional protected categories of communications) when they do not involve a lawyer, meaning that (1) a lawyer is not copied or included on the communication at all or (2) a lawyer is not the sender or primary recipient of the communication (See e.g., Plaintiffs' Brief, Doc. 1740 pp. 3-4; id. at p. 10 (questioning whether an email between Bayer employees that did not involve an attorney really conveys legal advice as asserted by Bayer). Similar content related questions are raised with regard to the other categories of allegedly protected documents.

B. Subject Matter of Communication

Plaintiffs also argue that the subject matter of certain communications (such as documents related to marketing) implies that the communication is less likely to be privileged (Plaintiffs' Brief, Doc. 1740 p. 23). The rationale for this contention is that communications relating to certain subject matters are likely designed to address business rather than legal issues and are therefore not privileged.

C. Standards Applicable to Draft Documents

As to the fifth category of documents, draft documents conveying an attorney's legal advice, the parties seem to agree that (1) draft documents may be protected by the attorney-client privilege (and the work-product doctrine); (2) draft documents are not privileged simply because a lawyer received the draft; and (3) even after public disclosure of a final version of a document, its prior drafts are privileged if they reveal confidential communications between the attorney and client for the purpose of obtaining legal advice (Bayer's Response, Doc. 1762 p. 5; Plaintiffs' Brief, Doc. 1740 pp.3,12-13; Bayer's Brief, Doc. 1738 pp. 15-18).

The parties disagree with regard to whether draft communications that Bayer intended to send to third-person regulatory agencies (such as the FDA) are privileged. An additional point of contention relates to whether draft documents should be produced to the extent any portion of the draft was later included in a publicly-released final draft of the document (Bayer's Response, Doc. 1762 p. 5).

V. Governing Legal Principles

For the assistance of the parties, the Court summarizes the pertinent legal principles pertaining to Bayer's claims of attorney-client ...

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