Judge: Laura A. Seigle, Case: 21STCV23406, Date: 2023-10-12 Tentative Ruling
Case Number: 21STCV23406 Hearing Date: October 12, 2023 Dept: 15
[TENTATIVE] ORDERS RE MOTIONI CHALLENGING CLAWBACK,
MOTION FOR PROTECTIVE ORDER
In
1991, an attorney for Pfizer wrote a memorandum dated February 8, 1991 about
documents he had received from Pfizer.
In September 2013, Pfizer produced documents in a case in Washington
state, including the February 8, 1991 memorandum with the Bates number
PFZ001162_05753. In 2014, Pfizer
realized the 1991 memorandum had been produced inadvertently and requested it
back. The plaintiffs’ attorneys in that
case agreed to destroy copies of the documents.
In
2017, in the case Booker v. BASF Catalysts LLC in Alameda County, the
plaintiff’s counsel in that case (Kazan, McClain, Satterley & Greenwood)
marked the 1991 memorandum as an exhibit at a deposition. Pfizer’s attorney objected. The parties did not resolve the dispute,
Pfizer filed a motion for a protective order, and the Alameda court granted the
motion. In an August 7, 2017 order, the
court stated the 1991 memo is privileged and that the plaintiff had returned
the document.
Plaintiffs
Bernard Schuda, Anika Schuda, Christopher Schuda, and Desiree Schuda’s counsel
in this case (Weitz & Luxenberg) has had the 1991 memo for some time, and
Pfizer demanded the firm destroy all copies of the 1991 memo in 2022 and 2023
in New Jersey and California litigations.
Witz & Luxenberg continues to maintain a copy of the memo.
In
this case, Plaintiffs filed a motion for the court to determine that the 1991
memo is not privileged, and Pfizer filed a motion for a protective order
requiring Plaintiffs’ counsel to destroy all copies of the 1991 memo and direct
their retained experts to do the same. Plaintiffs
argue (1) the 1991 memo is not privileged because the document was not written
by an attorney, (2) providing information to an attorney does not make the
information privileged, and (3) Pfizer waved any privilege by intentionally
producing the 1991 memo and failing to take reasonable steps to claw it back. (Plaintiffs’ Motion at pp. 9-10.)
First,
“[t]he attorney-client privilege attaches to a confidential communication
between the attorney and the client.” (Costco
Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 734.) Pfizer describes the 1991 memo as from the
law firm Thorp, Reed & Armstrong, prepared by Pfizer’s attorney Bruce V.
Hicks, and sent to Pfizer. (Pfizer’s
Opposition at p. 2.) This is the type of
information that would appear on a privilege log and indicates the document is
privileged. Indeed, the Alameda court
already determined that the 1991 memo is privileged. Pfizer has established the 1991 memo was a
confidential communication between an attorney and client.
Second,
Plaintiffs contend that “simply providing information to an attorney does not
protect information that is not otherwise entitled to privilege protection,”
and that the 1991 memo is not privileged because the information in it is not
privileged. (Plaintiffs’ Motion at p.
10.) That is not a correct statement of
the law. “The attorney-client privilege
attaches to a confidential communication between the attorney and the client
and bars discovery of the communication irrespective of whether it includes
unprivileged material.” (Costco,
supra, 47 Cal.4th at p. 734.) “ ‘[T]he
privilege covers the transmission of documents which are available to the
public, not merely information in the sole possession of the attorney or
client.’ ” (Ibid.) Thus, even if the 1991 memo contains
non-privileged or public information, the fact that information was
communicated between Pfizer’s counsel and Pfizer is privileged.
Third,
Plaintiffs argue Pfizer waived the privilege by intentionally producing the
document in 2013 and then not taking adequate steps to claw it back. (Plaintiffs’ Motion at p. 14; Plaintiffs’
Opposition at p. 10.) The
attorney-client privilege may be waived “if the holder of the privilege . . .
has disclosed a significant part of the communication or has consented to
disclosure made by anyone.” (Evid. Code,
§ 912, subd. (a).) A party does not
waive the attorney-client privilege through “accidental inadvertent disclosure
of privileged information by the attorney.”
(State Compensation Ins. Fund v. WPS, Inc. (1999) 70 Cal.App.4th
644, 654.) When an attorney receives
information that obviously appear to be privileged, the attorney “may not read
a document any more closely than is necessary to ascertain that it is privileged. Once it becomes apparent that the content is
privileged, counsel must immediately notify opposing counsel and try to resolve
the situation.” (Rico v. Mitsubishi
Motors Corp. (2007) 42 Cal.4th 807, 810.)
When a privileged document is produced “inadvertently in the course of
civil discovery, no waiver of the privilege will occur if the holder of the
privilege has taken reasonable steps under the circumstances to prevent disclosure. The law does not require that the holder of
the privilege take “strenuous or herculean efforts” to resist disclosure.” (Regents of University of California v.
Superior Court (2008) 165 Cal.App.4th 672, 683.)
Plaintiffs’ argument that
Pfizer intentionally produced the 1991 memo and then failed to take adequate
steps to claw it back is not supported by the evidence. The document was inadvertently produced by
Pfizer’s attorneys in 2013. There is no
evidence Pfizer consented to the disclosure; rather it demanded the document be
returned or destroyed. Plaintiffs attach
a declaration from Pfizer’s counsel setting out the history in 2013 and 2014 of
the inadvertent disclosure, the counsel’s communications with the plaintiffs’
attorneys to claw back the documents, and the plaintiffs’ attorneys’ agreement
to destroy the documents. (Stock Decl.,
Ex. 7.)
Plaintiffs
acknowledge that when the 1991 memo was used in a 2017 deposition, Pfizer’s
counsel immediately objected and demanded it be destroyed, filed a motion for a
protective order which was granted, and wrote claw back letters to other plaintiffs’
firms. (Stock Decl., Ex. 9.) Again in litigation in 2022, Pfizer’s counsel
clawed back the documents. (Ibid.) And in several cases in this court, Pfizer
had been demanding the return or destruction of the email.
Plaintiffs
refer to a 2018 Connecticut case, a 2021 Louisiana case, and a 2021 New York
case in which Pfizer failed to object to the plaintiffs’ use of the 1991
memo. (Plaintiffs’ Motion at pp.
15-16.) In the 2018 Connecticut case,
when the 1991 memo was marked as an exhibit at a deposition, the defending
attorney objected that the memo appeared to be an attorney-client communication
and stopped the questioning on the exhibit.
(Stock Decl., Ex. 10 at p. 117-179.)
Plaintiffs state that the plaintiffs’ firm in that case filed a copy of
the 1991 memo as an exhibit to an opposition, and Pfizer did nothing about
it. Pfizer states it settled that case
before its reply to the opposition was due. (Pfizer’s Reply at p. 8.)
In
the 2021 Louisiana case, Plaintiffs state the plaintiff described the 1991 memo
in discovery responses and the complaint. (Plaintiffs’ Motion at p. 16.) Pfizer states it settled that case before filing
an answer. (Pfizer’s Opposition at p.
11.) Therefore it is not apparent that Pfizer
knew that the plaintiff in that case was using the privileged document.
In
the 2021 New York case, Plaintiffs state an expert report summarized the 1991
memo and Plaintiffs produced the 1991 memo as part of expert discovery, but
Pfizer did not attempt to claw it back for eight months. (Plaintiffs’ Motion at p. 16.) Pfizer argues that the expert listed the memo
as one of 2000 references in his report.
(Pfizer’s Opposition at p. 10.) Pfizer’s
attorney in that case signed a declaration stating she reviewed the expert
report in February 2022, saw the description of the 1991 memo in the expert
report, suspected it was the privileged document, was out of town for a trial
for a month, and then in May 2022 wrote a claw back letter. (Sterk Decl., ¶¶ 9-13.)
The evidence
presented in connection with both motions, only some of which is referenced
here, shows Pfizer has been taking reasonable steps to claw back the 1991 memo
when it becomes aware that plaintiffs’ counsel is using it. It is true that Pfizer’s counsel has not
caught every use of the document in every litigation in the United States, sometimes
because Pfizer was not a party to the litigation and sometimes because Pfizer
settled the case. But the law does not
require perfect efforts, only reasonable efforts. Given the many disputes about this document
over the years, plaintiffs’ counsel across the country should know that Pfizer
considers the 1991 memo to be attorney-client privileged. Therefore, when plaintiffs’ counsel obtain
possession of 1991 memo, the professional step (and the ethical and legal
obligation depending on the particular jurisdiction’s law) would be to notify
Pfizer’s counsel that they had and planned to use that document. That then would give Pfizer’s counsel the
opportunity to claw it back. The
plaintiffs’ counsel in the cases discussed above failed to take that step.
Likewise,
here Plaintiffs’ counsel should have abided by the California Supreme Court’s
ruling in Rico – when they received the 1991 memo (no matter how they
received it), they should have immediately notified Pfizer’s counsel. The 1991 memo has been the subject of
Pfizer’s clawbacks since 2014.
Plaintiffs’ counsel obviously knew about the history of Pfizer’s
attempts to have various plaintiffs’ counsel across the country destroy the
documents because Plaintiffs’ counsel attached many exhibits illustrating that
history. Thus Plaintiffs’ counsel knew
Pfizer considers the 1991 memo attorney-client privileged and that the Alameda
court had ruled it is privileged. Holding
onto the 1991 memo for use in this litigation without informing Pfizer violated
the requirements of Rico.
The
motion for a protective order is GRANTED.
The motion for an order that the 1991 memo is not attorney-client
privileged is DENIED. Plaintiffs’
counsel is to immediately (1) destroy all copies of the 1991 memo in its
possession, (2) notify all experts and anyone else to whom Plaintiffs’ counsel
has sent copies of the 1991 memo that they must destroy all copies of it
immediately, and (3) confirm in writing within 10 days that all copies of the
1991 memo in the possession of Plaintiffs’ counsel, Plaintiffs’ experts, and
anyone else to whom Plaintiffs’ counsel sent copies have been destroyed.
The
moving party is to give notice.