Castro et al v. Sanofi Pasteur Inc

Filing 33

MEMORANDUM Opinion and Order Signed by the Honorable John J. Tharp, Jr on 4/19/2013:Mailed notice(air, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ADRIANA M. CASTRO AND
SUGARTOWN PEDIATRICS, LLC
Plaintiffs,
v.
SANOFI PASTEUR INC.
Defendant.

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No. 13 C 2086

Judge John J. Tharp, Jr.

MEMORANDUM OPINION AND ORDER
On April 9, 2013, the Court entered an order on the motion of Plaintiffs Castro and
Sugartown Pediatrics, LLC,1 to quash a subpoena issued by Defendant Sanofi Pasteur Inc.
(“Sanofi”). The subpoena sought the production of documents from Navigant Consulting, Inc.,
pertaining to its communications with Berger & Montague (“B&M”), Castro’s counsel.
Plaintiffs’ objections to the subpoena centered on FRCP 26(b)(3) and the work product doctrine.
Sanofi maintains that these documents are relevant because they show that the Plaintiffs’
antitrust claim—that Sanofi has foreclosed competitor Novartis from the market—was
manufactured by Novartis, with the assistance of Navigant and B&M, as a means of limiting
price competition.2

1

Plaintiffs indicate in their motion for reconsideration that there is a third named plaintiff in this
case, Marquez & Bengochea, M.D., P.A. The motion to quash did not, however, refer to
Marquez & Bengochea. For simplicity, unless specific reference to Sugartown Pediatrics or
Marquez & Bengochea is required, the Court will refer only to plaintiff Castro.
2

The following brief description of Castro’s claims is taken from the opinion of the District
Judge presiding over Castro’s lawsuit on Sanofi’s motion for entry of final judgment or leave to
file interlocutory appeal of dismissal of counterclaim (Dkt. 169, 11 C 7178, D.N.J., at 2) (internal
record citations omitted):

The Court denied the motion to quash, holding that responsive documents in Navigant’s
possession that pre-date the creation of an attorney-client relationship between Castro and B&M
do not qualify for work product protection because, by definition, they could not have been
prepared in anticipation of litigation at a point when Castro was not yet B&M’s client. The Court
therefore directed that Sanofi modify the subpoena to cover only otherwise responsive
documents created before Castro retained B&M.3
Due to confusion arising because Castro’s motion had not been properly noticed as
required by Local Rule 5.3, counsel from B&M were not present when the Court ruled on the
motion to quash the subpoena. The Court therefore invited Castro to submit a motion for
reconsideration in the event that she objected to the Court’s order. Castro has submitted that
motion, to which Sanofi has responded.
Castro seeks two modifications to the Court’s order. First, she asks that the order be
modified to preclude discovery of documents created before any other client retained B&M to
represent them in connection with potential litigation against Sanofi. B&M represents that “Dr.

In the FAC, Plaintiffs allege that Sanofi used its market power
across all relevant markets to impose bundled-pricing contracts on
PBGs [Physician Buying Groups] as a means of stifling
competition from Sanofi’s rivals. Thus, under Sanofi’s
“exclusionary contracts with PBGs,” buyers are allegedly
penalized for purchasing any vaccine that Sanofi offers from one
of Sanofi’s competitors. In their FAC, Plaintiffs allege two causes
of action: (1) monopolization of the meningococcal vaccine market
in violation of Section 2 of the Sherman Act, 15 U.S.C. § 2, and
(2) anti-competitive agreements in unreasonable restraint of trade
in violation of Section 1 of the Sherman Act, 15 U.S.C. § 1.
3

The same reasoning would apply with respect to B&M’s retention of Sugartown Pediatrics and
Marquez & Bengochea, but the defendants assert, and B&M has not disputed, that both of these
plaintiffs retained B&M after Castro had done so. Thus, the dates on which those plaintiffs
retained B&M are not relevant to the scope of the subpoena given the earlier limitation imposed
with respect to the date of Castro’s retention of B&M.
2

Castro is not the only client on whose behalf Plaintiffs’ counsel was communicating with
Navigant as part of its investigation of possible antitrust claims against Sanofi, nor was Berger &
Montague the only firm involved in conducting the pre-suit investigation.” Dkt. 22 at 4. Sanofi
argues, however, that Rule 26(b)(3) applies only to documents “prepared in anticipation of
litigation or for trial by or for another party or its representatives.” (emphasis added).
To support its reading, Sanofi cites 8 C. WRIGHT, A. MILLER, & R. MARCUS, FED.
PRACTICE & PROCEDURE § 2024 (3d ed.) (“Wright & Miller”), which states that “[d]ocuments
prepared for one who is not a party to the present suit are wholly unprotected by Rule 26(b)(3)
even though the person may be a party to a closely related lawsuit in which he will be
disadvantaged if he must disclose in the present suit.” Id. at 523. But the treatise goes on to
observe that “[s]uch a result would be intolerable,” and suggests, albeit without explanation or
citation to any authority, that “courts need not be confined by a literal reading of Rule 26(b)(3).”
Id. at 524. The treatise goes on to also suggest that the limitation imposed by the text of the rule
may be avoided by entry of a protective order under Rule 26(c)(1).
A problem presented by reading the rule to apply only to parties in litigation is that it is
inconsistent with a traditional tenet of work product doctrine, namely the rule that work product
protection is not contingent on whether the anticipated litigation actually materializes. See, e.g.,
In re Sealed Case, 146 F.3d 881, 888 (D.C. Cir. 1998); National Jockey Club v. Ganassi, No. 04
C 3743, 2006 WL 733549, *1 (N.D. Ill. Mar. 22, 2006); Wright & Miller, § 2024 at 523 (noting
rule). The text of Rule 26(b)(3) undermines this rule because documents that constitute work
product—that is, that were prepared by or for an attorney in anticipation of litigation—are not
protected from discovery unless litigation actually ensues; otherwise, the attorney’s client would
never become a “party” to whom the rule applies. Neither Wright & Miller, nor cases holding
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that work product protection may only be invoked by a party to the litigation, such as LG Elecs.,
Inc. v. Motorola, Inc., No. 10 C 3179, 2010 WL 4513722, *3 (N.D. Ill. Nov. 2, 2010), nor the
Advisory Committee Notes to Rule 26, address the inconsistency between the text of Rule
26(b)(3) and the concept that some litigation, at one point reasonably anticipated to occur, may
nevertheless be resolved short of the courthouse door.
This is arguably a problematic approach to application of the work product doctrine,
conditioning as it does the protection of what would otherwise constitute attorney work product
on the inability of disputants to resolve their differences without resort to litigation.4
Nevertheless, it is the approach that the Supreme Court, and Congress, have taken. “Rule
26(b)(3) codifies the work-product doctrine,” Upjohn Co. v. United States, 449 U.S. 383, 398
(1981), and governs “the extent to which trial preparation materials are discoverable in federal
courts,” F.T.C. v. Grolier Inc., 462 U.S. 19, 25 (1983). To the extent that the federal rule is
inconsistent with the common law rule that preceded it, the reasonable implication, absent
contrary evidence, is that the rule was not intended to incorporate that aspect of the doctrine as it
existed; Rule 26(b)(3) should not be construed to preserve the common law. “There is no place
in the federal civil procedural system for the proposition that rules having the force of statute,
though in derogation of the common law, are to be strictly construed.” G. Heileman Brewing
Co., Inc. v. Joseph Oat Corp., 871 F.2d 648, 652 (7th Cir. 1989). The Court therefore concludes
that the rule means what it says. By its terms, Rule 26(b)(3) applies only to “parties” to the
litigation, and therefore Castro’s request to modify the Court’s prior order to reflect the date that
non-party clients retained B&M to investigate claims against Sanofi is denied.

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One might argue, for example, that the rule creates a disincentive to settlement and diligent presuit investigation since it affords no protection to materials created in anticipation of litigation
unless a law suit is actually filed.
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The second modification Castro seeks is to exclude from the scope of the subpoena “all
opinion work product, including Plaintiffs’ counsel’s or Navigant consulting economists’ mental
impressions regarding legal theories or economic analyses relating to the underlying litigation.”
Dkt. 22 at 6. Castro’s objections are two: that materials reflecting its, or Navigant’s, opinions on
potential antitrust claims are not relevant; and that such work product is protected from
disclosure by the work product doctrine. Neither argument is persuasive. Taking the latter point
first, the (now) simple response to Castro’s objection to the discovery of these materials as “work
product” is that they are not “work product” if they were not created (by a party in this case) in
anticipation of litigation, and they cannot have been prepared in anticipation of litigation if B&M
had yet to be retained. Putting aside the complexity presented by the question of Rule 26(b)(3)’s
applicability to non-party clients, the work product doctrine simply does not extend to an
attorney’s communications about legal issues in a law suit that was only conceptual.
Relevance might be the more fitting objection to lodge to discovery seeking such
communications, but given Sanofi’s arguments about a conspiracy between Novartis, Navigant,
and B&M, communications between B&M and Navigant prior to Castro’s retention of B&M
may well be relevant to both the substance and credibility of Castro’s claims of foreclosure (and
the Court notes in this regard that the District Court presiding over the case has evidently not
circumscribed Sanofi’s ability to seek discovery relating to the alleged Novartis-Navigant-B&M
conspiracy on the grounds of relevance). In the context of this case, where there is a colorable
claim that such pre-suit, non-work product documents are relevant, discovery is appropriate.
Sanofi does not seek the materials so that its counsel can “piggy back” off of B&M’s and
Navigant’s work, an effort that would implicate a core interest served by Rule 26(b)(3); rather, it
maintains that the documents have significance independent of their legal analyses because they
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may shed light on the nature and course of the relationship between the purported conspirators.
Castro has, in a supplemental filing, provided to the Court in camera a sample of documents that
purportedly “typify the type of materials reflecting mental impressions [that are] not relevant.”
And unquestionably, the documents do contain mental impressions and opinions of counsel and
consultant. But review of the documents also makes clear that these are not “pure” opinion
materials but rather reflect, as Sanofi maintains, the nature of the relationship and endeavor that
B&M, Navigant, and Novartis were undertaking. So Castro’s relevance objection is also
unavailing.
This ruling does not, of course, preclude challenges to the use, or abuse, of discovery
obtained by means of this subpoena. Any potential misuse of information obtained pursuant to
this subpoena, or determination concerning its ultimate relevance and admissibility, can be
addressed to the trial court down the road, in the specific context in which such issues may arise.
For now it is enough to say that there is no basis to deny the discovery sought by the subpoena.
For the foregoing reasons, the Court denies Plaintiffs’ motion for reconsideration.

Entered: April 19, 2013
John J. Tharp, Jr.
United States District Judge

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