Strom v. Scios, Inc. et al

Filing 147

Order Regarding Withheld and Redacted Documents re 146 Stipulation filed by United States of America. Signed by Magistrate Judge Jacqueline Scott Corley on 10/21/2011. (ahm, COURT STAFF) (Filed on 10/21/2011)

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TONY WEST
Assistant Attorney General

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JOSHUA B. EATON (CA Bar No. 196887)
Attorney for the United States,
Acting Under Authority Conferred by 28 U.S.C. §515
JOANN M. SWANSON (CA Bar No. 88143)
Chief, Civil Division
SARA WINSLOW (DC Bar No. 457643)
JULIE A. ARBUCKLE (CA Bar No. 193425)
THOMAS R. GREEN (CA Bar No. 203480)
Assistant United States Attorneys
450 Golden Gate Avenue, Box 36055
San Francisco, California 94102
Telephone: [phone] (Winslow)
[phone] (Arbuckle)
[phone] (Green)
Facsimile: [phone]
[e-mail]

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JOYCE R. BRANDA
PATRICIA R. DAVIS
RENÉE S. ORLEANS
KIMBERLY I. FRIDAY
Attorneys
Civil Division
United States Department of Justice
P.O. Box 261
Ben Franklin Station
Washington, D.C. 20044
Telephone: [phone]
Facsimile: [phone]
[e-mail]

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Attorneys for the United States of America

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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UNITED STATES ex rel. STROM,
Plaintiffs,

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v.
SCIOS, INC. and
JOHNSON & JOHNSON,

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Defendants.
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No. C 05-3004 CRB (JSC)
STIPULATION REGARDING
WITHHELD AND REDACTED
DOCUMENTS; [PROPOSED] ORDER

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STIPULATION REGARDING WITHHELD AND REDACTED DOCUMENTS, No. C 05-3004 CRB (JSC)

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WHEREAS Plaintiffs, the United States of America and Relator Joe Strom, and

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Defendants, Scios, Inc. and Johnson & Johnson, (collectively the “Parties”) through their

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undersigned counsel, have been continuing to meet and confer regarding the remaining discovery

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disputes in this case, including, but not limited to:

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(1) Whether Defendants Scios, Inc. and Johnson & Johnson (“Defendants”) should be

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required to withdraw their assertions of the work product protection and attorney-client privilege

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over communications between Jane Moffitt (Scios, Inc.’s VP of Regulatory Affairs) and other

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employees and contractors, and over documents prepared, reviewed, sent, or received by Jane

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Moffitt, and produce all documents withheld on these grounds. The United States recently

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learned that Ms. Moffitt did not have active California Bar membership while she worked at

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Scios, and thus was not engaged in the practice of law for the purpose of invoking the attorney-

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client privilege. Defendants dispute the consequence of such a determination because they

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contend the attorney-client privilege applies if the client reasonably believes that the confidential

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communication was with an attorney. The United States disputes Defendants’ contention that

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they or their employees and agents could have reasonably believed that Ms. Moffitt was

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providing legal counsel to them.

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(2) Whether Defendants should be required to produce in un-redacted form the

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"to/from/cc/bc/subject and date" lines in emails and email chains embedded in the text of emails

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otherwise identified as protected by the attorney-client privilege and work product doctrine; and

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(3) Whether Defendants should be required to produce all portions of emails and other

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documents redacted or withheld that their counsel received, but do not expressly request or relay

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legal advice.

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(4) Defendants contend they have produced over 9 million pages of documents in the

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course of discovery in this matter, and identified thousands of documents over which it has

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asserted claims of attorney-client privilege and work product protection. Defendants contend the

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burden of re-reviewing documents in the manner and to the extent sought by the government

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would be excessively burdensome.

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IN ORDER TO RESOLVE ALL OF THESE DISPUTES, IT IS HEREBY STIPULATED
STIPULATION REGARDING WITHHELD AND REDACTED DOCUMENTS, No. C 05-3004 CRB (JSC)

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AND AGREED by the Parties, through their undersigned counsel of record, that:
(1) Defendants agree to withdraw their assertions of the work product protection and

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attorney-client privilege over communications between Jane Moffitt and other employees and

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contractors that were withheld solely based on Ms. Moffitt’s participation as counsel, and

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documents prepared, reviewed, sent, or received by Jane Moffitt that were withheld solely based

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on Ms. Moffitt’s participation as counsel. Further, Defendants will produce all documents

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withheld on these grounds, and will not lodge an objection to the admissibility of

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communications or documents based on an assertion that Ms. Moffitt was acting as an attorney

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(though retain the right to assert objections on other grounds).

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(2) Plaintiffs agree not to argue that Defendants’ production of these documents

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constitutes a subject matter waiver as to communications or documents over which Defendants

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assert a privilege or protection independent of Ms. Moffitt’s participation – i.e. communications

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or documents otherwise privileged due to another attorney’s participation.

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(3) Plaintiffs further agree that they will not seek further reconsideration of this Court’s

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decision that Scios’ communications with Dr. Raymond Lipicky during the March 2002

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telephone call are privileged, provided another attorney participated in such communications, and

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such showing shall be made to the government by declarations.

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(4) In lieu of amending their privilege logs to include the to, from, cc, bc, subject, and

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dates of all emails Defendants have redacted, Defendants will produce all emails and email

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chains without redacting this information for any email embedded in an email chain otherwise

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claimed as privileged. In the course of this un-redaction, Defendants also will review the content

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of such emails and email chains to confirm that such chains are properly claimed as privileged

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and, to the extent such communications are not properly protected by the attorney-client privilege

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or work product doctrine, Defendants will produce them to Plaintiffs.

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(5) Defendants agree to re-review all emails and other documents identified by

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Defendants’ privilege logs as “subject to ongoing legal and regulatory review,” “pending legal

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review,” “awaiting legal review,” “submitted to attorney,” or “sent for legal review” to confirm

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that communications are properly claimed as privileged and, to the extent such communications
STIPULATION REGARDING WITHHELD AND REDACTED DOCUMENTS, No. C 05-3004 CRB (JSC)

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are not properly protected by the attorney-client privilege or work product doctrine, Defendants

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will produce them to Plaintiffs, subject to redaction of any portions of such emails and

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documents that expressly request or relay legal advice, or that constitute the work product of an

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attorney other than Jane Moffitt.

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(6) Defendants agree that all of the documents that may be produced pursuant to this

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Stipulation are authentic pursuant to Fed. R. Evid. 901 in that they are what they purport to be,

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and that they will not challenge the authenticity of such documents in this action.

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(7) All of the document productions that may be made pursuant to this Stipulation will be

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made as soon as possible, and no later than December 1, 2011. If any additional discovery issues

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arise regarding the productions pursuant to this Stipulation, the United States shall have three

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weeks after the date all productions are complete to meet and confer with Defendants regarding

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such issues and to provide its portion of any joint discovery letter(s) to the Court relating to such

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issues. Defendants will then have seven days to provide their responsive portion, and the parties

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will have an additional seven days to make any final revisions and file the joint letter(s).

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(8) Based on the foregoing, the United States will not file the joint letter it sent
Defendants regarding the discovery disputes described above.
IT IS SO STIPULATED.

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Respectfully submitted,

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TONY WEST
Assistant Attorney General

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JOSHUA B. EATON
Attorney for the United States, Acting
Under Authority Conferred by 28 U.S.C. §515

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Dated: October 19, 2011

By:

/S/
SARA WINSLOW
JULIE A. ARBUCKLE
THOMAS R. GREEN
Assistant United States Attorneys

Dated: October 19, 2011

By:

/S/
JOYCE R. BRANDA
PATRICIA R. DAVIS
RENÉE S. ORLEANS
KIMBERLY I. FRIDAY
Civil Division, U.S. Department of Justice

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Attorneys for the United States
STIPULATION REGARDING WITHHELD AND REDACTED DOCUMENTS, No. C 05-3004 CRB (JSC)

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NOLAN & AUERBACH, P.A.
LAW OFFICES OF MATTHEW PAVONE

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Dated: October 19, 2011

By:

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/S/
KENNETH J. NOLAN, Esq.
MARCELLA AUERBACH, Esq.
Pro Hac Vice
MATTHEW B. PAVONE, Esq.
Attorneys for Qui Tam Plaintiff Joe Strom

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QUINN EMANUEL URQUHART & SULLIVAN,
LLP

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Dated: October 19, 2011

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By:

/S/
CHRISTOPHER TAYBACK, Esq.
ASHLEY MARTABANO, Esq.
Attorneys for Defendants Scios, Inc. and
Johnson & Johnson Inc.

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[PROPOSED] ORDER

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Pursuant to stipulation, IT IS SO ORDERED.
October 21, 2011
Dated: _____________

_________________________________________
JACQUELINE SCOTT CORLEY
United States Magistrate Judge

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STIPULATION REGARDING WITHHELD AND REDACTED DOCUMENTS, No. C 05-3004 CRB (JSC)

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