Accidentally Disclosed Report Still Covered by Work-Product Privilege

Accidentally Disclosed Report Still Covered by Work-Product Privilege

A report created for a medical device manufacturer that was inadvertently handed over during discovery can’t be used by the plaintiff, a federal judge has ruled.

Cases across the country have been filed against C.R. Bard Inc., the New Jersey-based manufacturer of medical devices including the vascular filters at issue in the lawsuits, which prompted the company to commission a litigation consultation report. That report was accidentally included in discovery disclosures in some of the later litigation, according to the opinion issued by U.S. District Judge Lawrence F. Stengel of the Eastern District of Pennsylvania.

Courts, both state and federal, have ruled differently as to whether plaintiffs can use the report.

“Several courts have already found that the Lehmann report is covered by the work-product doctrine,” Stengel said, referring to the report produced by Dr. John Lehmann for Bard. “Others have found that the work-product doctrine does not protect the report. While none of these prior decisions is binding, I agree that the work-product doctrine protects the Lehmann report.”

The first case over Bard’s blood-filtering device called the G2 inferior vena cava filter was filed in early 2004. Later that year, Bard retained Lehmann, a former medical affairs consultant for the company, to prepare a litigation consultant report.

In 2012, Bard included 12 privileged documents in discovery requests by accident. Among them was Lehmann’s report, according to Stengel’s opinion. Almost immediately, within a week, Bard requested a “clawback” of those documents, Stengel said.

“The parties litigated the issue of whether the report was privileged or protected in those other cases,” Stengel said. “A California state court denied the clawback request in an unpublished order with no explanation or analysis. The United States District Court for the District of Nevada, on the other hand, determined that Dr. Lehmann’s litigation consultant report was protected from discovery by the work-product doctrine and attorney-client privilege in a nearly 70-page opinion.”

The case in federal court in Nevada was captioned Phillips v. C. R. Bard and joins two other courts that found similarly.

Read more in an upcoming edition of The Legal.

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