Court Rules “No Harm, No Foul” in Allowing Clawback After Protective Order Deadline: eDiscovery Case Law
In the case In re Abilify (Aripiprazole) Prod. Liab. Litig., No. 3:16-md-2734 (N.D. Fla. Sept. 17, 2018), Florida Magistrate Judge Gary R. Jones denied the plaintiff’s Disclosure Motion regarding two documents that defendant Bristol-Myers Squibb (BMS) claimed were privileged and inadvertently disclosed, stating that “[a]lthough BMS might not have followed the precise terms of the Protective Order”, “the one-day delay in sending the privilege log can charitably be described as a situation where the expression ‘no harm, no foul’ applies.”
In this products liability case against pharmaceutical manufacturers, the plaintiffs’ used an internal BMS email and PowerPoint during the January 31, 2018, deposition of BMS’ executive director for Abilify marketing from February 2007-December 2008. The PowerPoint discussed, among other things, BMS’ Corporate Integrity Agreement (“CIA”). During the deposition, BMS’ counsel objected on the grounds that the use of the PowerPoint contained “privileged . . . confidential information [that] was inadvertently produced, in particular the section that was drafted by and presented by legal.” BMS’ counsel expressly advised the plaintiffs before the conclusion of the deposition that they would be “exercising our clawback rights under our protective order.”
After the deposition was concluded BMS sent an email to the plaintiffs confirming their intent to claw back the email and PowerPoint as inadvertently produced. While the email did not mention attorney-client privilege and did not contain a privilege log, BMS sent the plaintiffs a notice and associated privilege log on February 5 articulating the basis for clawing back the redacted email and PowerPoint attachment. BMS then produced redacted, replacement versions of the email and PowerPoint. The plaintiffs claimed that BMS waived privilege because they failed to provide a written notice within two business days from the date of the deposition accompanied by a log articulating the privilege basis for the documents and also argued that the redacted portions of the documents were not privileged because the documents did not convey legal advice.
Evaluating the plaintiffs’ Disclosure Motion, Judge Jones stated: “Plaintiffs’ argument on timeliness fails for two reasons. First, as a practical matter Plaintiffs were notified at the deposition on January 31, 2018 that BMS asserted a privilege over the documents based upon the fact that a section of the PowerPoint had been prepared by and presented by an attorney. BMS reaffirmed its assertion of its rights under the clawback that same day on January 31, 2018, when it sent a confirming email to Plaintiffs. While the confirming email was not accompanied by a privilege log, there was no mystery at that point that BMS asserted a privilege and sought to claw back the document, as it was entitled to do under the Protective Order.” While noting that the Protective Order required written notification accompanied by a privilege log within two business days on the deposition (and BMS’ second email wasn’t until the third business day), Judge Jones stated: “Although BMS might not have followed the precise terms of the Protective Order, in the Court’s view the one-day delay in sending the privilege log can charitably be described as a situation where the expression ‘no harm, no foul’ applies. Plaintiffs cannot point to any prejudice they suffered or could have suffered as a result of the receipt of a privilege log one day late, which simply confirmed the privilege timely raised by BMS at the deposition and then confirmed in writing the same day.”
Noting that BMS’ in-house counsel not only participated in the preparation of the PowerPoint, but also that the PowerPoint was part of a presentation by Senior BMS counsel made to BMS management employees, Judge Jones upheld BMS’ privilege designation of the materials and denied the plaintiffs’ Disclosure Motion.
So, what do you think? How much leeway should be given to inadvertent disclosures when they fall outside of the parameters of a protective order? Please let us know if any comments you might have or if you’d like to know more about a particular topic.
Case opinion link courtesy of eDiscovery Assistant.
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