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In Re Yasmin and Yaz (Drospirenone)

June 29, 2011

IN RE YASMIN AND YAZ (DROSPIRENONE)
MARKETING, SALES PRACTICES AND RELEVANT PRODUCTS LIABILITY
LITIGATION



The opinion of the court was delivered by: Judge David R. Herndon

This Document Relates to:

ORDER ALL CASES

ORDER

I. Introduction

Before the Court is Bayer's request for a ruling pursuant to the Deposition Protocol (Case Management Order 28 ¶ A.4) on a recurring dispute that has arisen during the depositions of Bayer witnesses. The dispute involves plaintiffs' questions pertaining to documents reviewed by the witness in preparation for his or her deposition. Bayer states that questions directed at (1) determining any documents that refreshed the witness's recollection (Fed. R. Evid. 612) and/or (2) identifying the documents reviewed by the witness in preparation for the deposition independent of counsel are not objectionable (June 6, 2011 Email from S. Weber to Chief Judge Herndon p. 1). Bayer objects, however, to questioning designed to elicit the identity of documents compiled by defense counsel and reviewed by the witness in preparation for his or her deposition. Id.

Bayer contends that questioning directed at identifying the documents compiled by counsel in preparation for a witness's deposition improperly seeks a record of the thought processes of Bayer's attorneys, which constitutes work-product and is protected from disclosure. Id. at p. 2. Moreover, Bayer notes that it has produced all of the documents reviewed by any Bayer witness in preparation for his or her deposition. Id. Thus, Bayer argues, the only purpose of this line of questioning would be to learn which documents Bayer's counsel has identified as strategically significant -- a result that would conflict with the basic purpose of the work-product doctrine. Id.

Plaintiffs maintain that identification and production of the information is required under Federal Rule of Civil Procedure 26(b)(1) and that defense counsel's compilation of otherwise non-privileged documents as part of deposition preparation is not entitled to work-product protection (June 8, 2011 Email from R. Denton to Chief Judge Herndon pp. 1-4). To the extent such information is entitled to work-product protection, plaintiffs argue that Federal Rule of Evidence 612 is controlling and requires that the information be identified and produced. Id. at p. 2, 4-6).

II. Analysis

A. Culmination of Documents Selected by Counsel is Subject to Work-Product Protection

As explained by the Seventh Circuit, the purpose of the work-product doctrine is to "establish a zone of privacy in which lawyers can analyze and prepare their client's case free from scrutiny or interference by an adversary." Hobley v. Burge, 433 F.3d 946, 949 (7th Cir. 2006). The Seventh Circuit has not had occasion to address whether this "zone of privacy" extends to an attorney's compilation of material for his or her client to review in preparation for a deposition. After reviewing relevant persuasive authority, the Court is convinced that the Third Circuit Court of Appeals decision in Sporck v. Peil, 759 F.2d 312 (3rd Cir. 1985), cert. denied, 474 U.S. 903 (1985), is consistent with the Seventh Circuit's view of the purpose and scope of the work-product doctrine. In addition, the facts presented in Spork are directly on point.

In Sporck, the issue was whether an attorney's selection and compilation of documents for the client to review in preparation for his deposition constituted opinion work product. 759 F.2d at 316. The Appellate Court answered affirmatively, concluding that "[i]n selecting and ordering a few documents out of thousands counsel could not help but reveal important aspects of his understanding of the case." Id. (citation and internal quotation marks omitted). The Court finds this reasoning persuasive.

The Court also notes that plaintiffs' reliance on In Re San Juan Dupont Plaza Hotel Fire Litigation, 859 F.2d 1007 (1st Cir. 1988) is misplaced.*fn1

In San Juan, the First Circuit upheld the district court's order directing counsel to reveal the documents they selected for use in the deposition, prior to the deposition. Id. at 1015-17. In so holding, the First Circuit emphasized the importance of the fact that counsel intended to use the allegedly protected material during the deposition. Id. at 1018. Thus, the Appellate Court reasoned, requiring counsel to provide a list prior to the deposition of documents he intended to use during the deposition merely adjusted the timing of the disclosure. Id. at 1017-1018. The San Juan Court specifically noted that Sporck was distinguishable because in Sporck the relevant documents were never meant to "see the light of day because the [documents] had been selected not for use in the examination of an adverse or neutral witness, but for a markedly more private purpose-preparation of the attorney's own client." San Juan, 859 F.2d at 1018.

Clearly, the facts present in the instant case more closely reflect the facts present in Sporck. All of the documents plaintiffs are seeking have already been produced by Bayer during the normal course of discovery.*fn2 Forcing Bayer to disclose the compilation would implicitly reveal the thought processes of the attorney who selected the documents and would allow plaintiffs to glean which documents, out of the millions already produced, opposing counsel believes are legally significant. This result would be contrary to the principles underlying the work-product doctrine. See e.g., Mattenson v. Baxter Healthcare Corp., 438 F.3d 763, 767-68 (7th Cir. 2006) (the doctrine shields materials "on the theory that the opponent shouldn't be allowed to take a free ride on the other party's research, or get the ...


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