Opinion
Civil Action No. 03-5346.
March 26, 2004
ORDER
AND NOW, this 26th day of March, 2004, upon consideration of Plaintiffs' two pending motions to compel, and after hearing oral argument on the issues raised therein, it is hereby ORDERED that:
1. Based upon the representation of Counsel for both parties that they have resolved issues raised in Plaintiffs' first motion to compel, Plaintiffs' "Motion To Compel Production of The Defendant's Exhibits And Attachments Listed In The Establishment Inspection Reports" [Docket Entry No. 13] is DISMISSED AS MOOT.
2. In Plaintiffs' "Motion To Compel Production Of the Defendant's Privilege Logs," they seek discovery of all 1,378 documents included in Defendant's privilege log. For the reasons stated below, this motion to compel [Docket Entry No. 14] is GRANTED IN PART, DENIED IN PART as follows:
(A) Defendant has submitted, for in camera inspection, ten documents which have been withheld under claims of attorney-client privilege and/or work-product doctrine. Defendant has identified these documents as the entire universe of privileged documents that fall within the parameters of the waiver language in its March 29, 2002 written plea agreement. Of these ten documents, four were actually disclosed to the FDA and/or the DOJ.
The relevant language in the March 29, 2002 written plea agreement reads:
"Gliatech further agrees that as part of its cooperation it will not assert the attorney-client privilege, the attorney work product doctrine, or any other privilege or doctrine, with respect to discussions and meetings among Gliatech personnel and attorneys, for the period May 1999 through February 2000, regarding complaint handling, medical device reporting, submission of data to the FDA, and the FDA Inspection conducted in January through February 2000. Gliatech further agrees that it will make available such attorneys to be interviewed by the government regarding these subjects, obtain copies of all relevant documents and materials they possess, and make these attorneys available as witnesses before the grand jury or in any court proceeding. [. . .]"
Plaintiffs' "Motion To Compel Production Of the Defendant's Privilege Logs": Exhibit "B" at ¶ 10.
Westinghouse v. The Republic of the Philippines "resolved an important issue that has divided the circuits: whether a party that discloses information protected by the attorney-client privilege and the work-product doctrine in order to cooperate with a government agency that is investigating it waives the privilege and the doctrine only as against the government, or waives them completely, thereby exposing the documents to civil discovery in litigation between the discloser and a third party." Westinghouse v. The Republic of the Philipines, 951 F.2d at 1417 (3d Cir 1991).
The Third Circuit rejected the selective waiver rule, and held that Westinghouse, which voluntarily produced documents to the SEC and DOJ in cooperation with an investigation, waived the attorney-client privilege and the work-product doctrine when it disclosed otherwise protected documents. Id. at 1431 (3d Cir. 1991). The Circuit deemed Westinghouse's disclosure "voluntary" even though it was prompted by a grand jury subpoena, distinguishing the production of documents under a Court order, which it would not consider voluntary. Westinghouse, 951 F.2d at 1427 n. 14 (3d Cir 1991).
Defendant argues that Westinghouse is distinguishable, because the documents at issue here were disclosed pursuant to a plea agreement, in which "Gliatech agreed to cooperate with the government and provide any documents requested by the government." Defendant's Response to Plaintiff's Motion to Compel Production of Defendant's Privilege Log [Docket Entry No. 16] at 8.
I find that Gliatech's disclosure pursuant to the plea agreement falls within the scope of the term "voluntary" as defined by Westinghouse Court, and that this disclosure acts as a waiver of both the attorney-client privilege and the work-product doctrine as to all documents disclosed by Gliatech to the FDA and/or DOJ. See Westinghouse, 951 F.2d at 1418 (3d Cir. 1991) ("[. . .] we hold that by disclosing documents to the SEC and to the DOJ, Westinghouse waived both the attorney-client privilege and the work-product doctrine with respect to those documents. [emphasis added]" I reject Plaintiff's argument that Gliatech's waiver under Westinghouse extends to all documents on Gliatech's privilege log, regardless of whether the documents were actually disclosed to the FDA and/or DOJ.
Within ten days of the date of this Order, Gliatech is to produce to Plaintiffs all documents, which have been withheld as protected, and which were disclosed to the FDA and/or DOJ, during the course of its investigation.
(B) As to the remaining documents identified on Defendant's privilege log, Plaintiffs make a blanket argument that all are subject to discovery because it is Plaintiffs' belief that these documents were part of "Gliatech's normal everyday course of business to get its product approved by the FDA." Plaintiffs' Memorandum of Law in Support of the Motion To Compel Production Of the Defendant's Privilege Logs at 4.
However, as Plaintiffs' concede, 391 documents identified in Defendant's privilege log "could fall under the attorney-client privilege." Id. at 6. As I have found that Gliatech's waiver under Westinghouse does not extend to all documents on Defendant's privilege log, these 391 documents are not subject to disclosure.
To the extent that Plaintiffs wish to challenge specific documents listed on Defendant's privilege log, they must, by April 23, 2004, provide to this Court a list of each challenged document and the basis for the challenge. If Plaintiffs choose to do so, I will direct Defendant to respond as to each challenged document, and to submit the challenged documents for in camera inspection.