As explained in an earlier Privilege Point, the Eastern District of Louisiana handling the Vioxx multidistrict litigation adopted a very narrow view of the privilege protecting internal Merck communications involving Merck’s in-house lawyers. In re Vioxx Prods. Liab. Litig., 501 F. Supp. 2d 789 (E.D. La. 2007). The Vioxx decision rests in large part on the report by Special Master Paul Rice, a noted American University law professor.
Another court handling another large case against another drug company has now explicitly adopted Professor Rice’s approach. In In re Seroquel Products Liability Litigation, Case No. 6:06-md-1769-Orl-22DAB, 2008 U.S. Dist. LEXIS 39467 (M.D. Fla. May 7, 2008), the court repeatedly quoted from the Vioxx decision in stripping away the privilege from many documents withheld by AstraZeneca. As in Vioxx, the court held that “[r]outine inclusion of attorneys in the corporate effort of creating marketing and scientific documents does not support the inference that the underlying communications were created and transmitted primarily to obtain legal advice as was required to justify a privilege.” Id. at *104-05. The court included that “[t]he great bulk of AstraZeneca’s privilege claims suffer from this approach of simply relying on an attorney’s tangential involvement in the process of creating a document to shield the entire process of gathering information and drafting and revising the document.” Id. at *105.
Unfortunately, both Vioxx and Seroquel establish a tremendously high burden for corporations hoping to protect their internal communications.