In re Avandia Marketing

          MEMORANDUM OPINION

          Rufe, J.

         In the course of this multi-district litigation regarding the diabetes medication Avandia, Defendant GSK moved for sanctions against two of the third-party payor plaintiffs, Allied Services Division Welfare Fund and United Benefit Fund, and their counsel.^[1] GSK later withdrew its Motion as to Allied and UBF, ^[2] whose claims were voluntarily dismissed with i prejudice.^[3] GSK now presses the Motion against James Dugan and Art Sadin, attorneys for Allied.^[4]

         GSK's Motion for Sanctions is premised on allegations in both Allied and UBF's Amended Complaints that GSK made direct misrepresentations about Avandia to these Plaintiffs. When the time came to produce evidence of those alleged misrepresentations, GSK argues, Dugan and Sadin suddenly and inexplicably attempted to substitute another plaintiff for Allied. This unusual move led GSK to believe that Dugan and Sadin made those allegations having failed to investigate whether a factual basis existed to support them.

         The Court permitted limited discovery on the Motion for Sanctions.^[5] GSK served one set of requests for admission on each of the Allied attorneys, Dugan and Sadin.^[6] Although Dugan and Sadin had earlier represented that they did not expect to take discovery unless their Motion to Dismiss the Motion for Sanctions was denied, ^[7] they each served interrogatories and document requests on GSK without the Court having ruled on their Motion to Dismiss.^[8] Each party objected to the other's discovery responses as inadequate and moved to compel.

         I. Dugan and Sadin's Motion to Compel

         A motion to compel discovery responses under Federal Rule of Civil Procedure 37(a) "must include a certification that the movant has in good faith conferred or attempted to confer" with the opposing party in an effort to resolve disputes before presenting them to the court. Likewise, Local Rule 26.1(f) obliges counsel to certify that they have made a good-faith effort to resolve discovery disputes on their own. As courts in this district have often explained, these rules impose a substantial "professional obligation" on counsel to "resolve discovery problems before bringing them to the attention of the court."^[9] That professional obligation permits the filing of a motion to compel only when a genuine impasse has been reached and further negotiation would be pointless.^[10]

         Dugan and Sadin's Motion to Compel does not comply with this requirement either in form or in substance. Their filing did not contain a certificate of compliance as required by both Rule 37(a) and Local Rule 26.1(f). Nor could it, as Dugan and Sadin's counsel made only minimal efforts to confer with GSK's counsel about GSK's responses to Dugan's requests and did not even contact GSK's counsel about its responses to Sadin's requests, filing this Motion only four days after receiving them. Accordingly, their Motion will be denied as to both Dugan and Sadin's discovery requests for failure to comply with Rule 37(a) and Local Rule 26.1(f).

         In addition, the Motion to Compel responses to Dugan's set of requests (comprising Dugan Interrogatories 1-10 and Dugan Document Requests 1-7) is without merit. Interrogatories 1-7 sought disclosure of the "factual allegations], "statements," and "representations" on which GSK's sanctions motion is based.^[11] But that information, as GSK points out, is readily available on the docket after multiple rounds of briefing on the sanctions motion.^[12] Similarly, Document Request 1 sought the "binder of documents ... referred to by Attorney Sean Fahey" at the January 30, 2018 hearing on the sanctions motion.^[13] GSK has already produced an index of the documents in that binder, all of which are available on the docket or otherwise in Dugan and Sadin's possession. Finally, Interrogatories 8-10 and Document Requests 2-7 sought substantiation of "the amount of money [GSK] allegedly spent defending itself against the particular allegations on which its sanctions motion is based.^[14] As the Court has already explained, however, calculating GSK's damages is premature at the liability phase of its sanctions motion.^[15] Thus, this Motion would be denied in any event.

         Although Dugan and Sadin do not raise the point, the Court notes that to prevail under 28 U.S.C. § 1927, GSK is required to show that the attorneys' alleged misconduct increased the cost of the proceedings.^[16] GSK has alleged that it incurred at least some extra costs in defending the particular allegations at issue here, ^[17] and will need to substantiate those costs for damages purposes should it prevail.

         II. GSK's Motion to Compel

         GSK served requests for admission on Dugan and Sadin. While it is undisputed that GSK's requests are relevant, ^[18] Dugan and Sadin objected to a number of GSK's requests as either calling for responses protected by attorney-client privilege or work-product protection or as calling for speculation about information better known to third parties. After making reasonable efforts to resolve the disputes in accordance with Federal Rule of Civil Procedure 37(a)(1) and Local Rule 26.1(0, GSK moved to compel.^[19]

         A party requesting admissions may move to determine the sufficiency of an answer or objection and to compel responses.^[20] "Unless the court finds an objection justified, it must order that an answer be served."^[21] The "party moving to compel discovery bears the initial burden of proving the relevance of the requested information."^[22] Once that burden is met, the burden shifts to the objecting party to establish the grounds for its objection; where, as here, a party objects on the grounds of attorney-client privilege or work-product protection, the objecting party bears the burden of establishing that the privilege or work-product protection applies.^[23]

         The attorney-client privilege protects communications from discovery when:

(1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate, and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client.^[24]

         The privilege belongs to the client, not to the attorney.^[25] An attorney may-indeed, often must- assert the privilege on the client's behalf.^[26] But because the client holds the privilege, an attorney may not assert it on his or her own behalf.^[27]

         The work-product protection shields from discovery "documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative," including its attorney.^[28] It protects the attorney's ability to "assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference."^[29]

         Most of the disputed requests for admission probe Dugan and Sadin's investigative process in preparing to prosecute Allied's claims. They call for the attorneys to reveal what documents and information they requested from various sources and reviewed before each of the occasions on which they asserted that GSK had made direct misrepresentations about Avandia.

         The Motion to Compel seeks admissions that can be grouped into four categories:

         a. Dugan Requests 5, 6, 8, 10, 12, 20, and 23, and Sadin Requests 6, 7, 9, 21, and 24

         These requests call for Dugan and Sadin to state whether they requested certain kinds of information and documentation, other than claims data showing that it had purchased Avandia, from Allied. Dugan and Sadin objected on grounds of attorney-client privilege and work-product protection. As to the privilege, the parties dispute whether these requests seek the privileged content of communications between the attorneys and their client or merely the fact and general subject of those communications. The Court need not resolve this issue, however, because both client and counsel in this matter have previously made clear that they are not treating this information as privileged.

         Allied has acknowledged that in the course of working up its lawsuit against GSK, Dugan and Sadin never requested any information or documentation other than claims data showing that it purchased Avandia. Allied's representative signed an affidavit to that effect, which GSK filed with one of the many briefs the parties have exchanged in litigating the sanctions motion.^[30] As the privilege-holder, then, Allied has made clear that it is not asserting the privilege over the information GSK seeks.^[31] Dugan and Sadin do not have standing to assert the privilege on their own behalf when the client has made clear it does not oppose disclosure or even consider the information privileged.^[32]

         Further, Dugan and Sadin have produced an email they sent Allied, in which they asked whether its members had purchased Avandia, as proof that they adequately investigated Allied's potential claims against GSK and reasonably believed those claims were supported by the facts.^[33]Presumably, counsel would not have done so unless the material was not privileged. The attorneys have not explained why the statement, "We requested claims data from Allied," is meaningfully different from the statement, "We requested no other data from Allied," such that one could be privileged while the other is not. Dugan and Sadin therefore have not met their burden of showing that these requests are barred by the attorney-client privilege.

         As to the work-product protection doctrine, Dugan and Sadin appear to acknowledge that these requests do not seek "documents [or] tangible things."^[34] Instead, they argue that because these requests call for counsel to disclose whether they requested documentation from their client, the requests "go directly to legal strategy and case work-up."^[35] This kind of intangible work product-the "thoughts and recollections of counsel" and the like-is often entitled to protection and can even qualify as core opinion work product.^[36] GSK's requests, however, seek only "facts concerning the creation of work product."^[37] They do not ask after theories or strategies, but rather after the factual underpinning (or lack thereof) of Allied's claims.^[38]Particularly in the context of a sanctions motion, affording opinion work-product ...