Wednesday, July 22, 2015

Propecia® MDL Update: On A Sampling Basis, About One Third Of Merck's Claims Of Privilege Were Inappropriate

The very able US Magistrate Judge Viktor V. Pohorelsky, sitting in the Eastern District of New York, has today ruled that -- in a statistical test sample of about 75 documents which the Propecia® plaintiffs claimed were inappropriately withheld from the earlier MDL discovery deliveries -- just over one-third were actually properly discoverable, and not protected by any attorney client (or other) privilege, as Merck had originally claimed.

The full six page PDF order is here, but the Magistrate has left for another day whether he will order a completely new review of all the privilege logs provided by Merck. He did order Merck to look anew at the withheld documents in light of his order, thus: ". . .the [Merck] defendants are urged to review the documents for which privilege has been claimed in light of the above rulings, however, and the court will address with counsel at the next conference what further procedures should hereafter be employed to assess the defendants’ claims of privilege. . . ."

In the main, then, this should result in the MDL plaintiffs' lead lawyers getting access to many more documents about the history of the problems with Propecia, as to they relate to Merck's awareness and path of responses.

All in all, a moderately good day for the plaintiffs today, out of the US Courts in Brooklyn. We are still many, many months from resolution of any sort, however. Onward -- and, sleep tight. . . .


Anonymous said...

Thanks for the update. Seems like the Plaintiffs have strung together a few small victories... I'm very curious to see what comes out of the status conference next month.

Mr. E

Anonymous said...

Couldn't one spin this as something of a mixed bag for both sides? Merck may not be happy about 1/3 being deemed inappropriate, but presumably that means that 2/3 were? - Mr. I

Condor said...

Thanks go out to both Messrs. E and I --

I think, Mr. I, that Merck was a loser here. The federal discovery rules do not permit Merck to withhold documents that are relevant to the plaintiffs' claims, except on a very small set of circumstances.

Courts generally trust that lawyers, like Merck's defense counsel, will scrupulously comply with the federal rules of practice. A one-third even "innocent mistake" rate (in asserting attorney client privilege over a given document), I think, would be fairly appalling to most judges.

Imagine if we ran clinicals this way -- one third of the time the patient got the wrong dose -- or no dose at all. . .

I think the Magistrate is probably consulting with the other District Court judges, and may even the Chief Judge, to decide how to address what could at least potentially be a case of defense counsel's obstruction. Afterall, the plaintiffs absolutely need these documents to prove up whatever case they might have.

Only if the document is giving the client legal advice, should it be withheld.

So we shall see -- but I suspect Merck is bracing for a more forceful set of orders on discovery, and they may be handed down by Summer's end.

Just my guess here.

Namsate. do stop back in. . .

Anonymous said...

Ha, maybe I'm too cynical. Thank you for this explanation. - Mr. I