United States District Court, E.D. Pennsylvania
IN RE AVANDIA MARKETING, SALES PRACTICES AND PRODUCTS LIABILITY LITIGATION
v.
GSK THIS DOCUMENT APPLIES TO Allied Services Division Welfare Fund
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 ...