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. . . .