Castro et al v. Sanofi Pasteur Inc
Filing
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MEMORANDUM Opinion and Order. Signed by the Honorable John J. Tharp, Jr on 7/18/2013. Mailed notice(meg, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ADRIANA M. CASTRO, M.D., P.A., and
SUGARTOWN PEDIATRICS, LLC, et
al., on behalf of themselves and all others
similarly situated,
Plaintiffs,
v.
SANOFI PASTEUR INC.,
Defendants.
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No. 13 C 2086
Judge John J. Tharp, Jr.
MEMORANDUM OPINION AND ORDER
The matter before the Court arises in connection with a third-party subpoena served by
Defendant Sanofi Pasteur Inc. on Navigant Consulting, Inc. This is an ancillary proceeding; the
underlying lawsuit is pending in the District of New Jersey (Case No. 11 C 7178). In late
February 2013, Sanofi served a subpoena on Navigant (headquartered in Chicago) in this district,
seeking documents pertaining to its communications with Berger & Montague (“B&M”), the
plaintiffs’ counsel. The plaintiffs moved in this Court pursuant to Fed. R. Civ. P. 45(c)(3) to
quash the subpoena. On April 9, 2013, the Court denied the plaintiffs’ motion to quash, and
denied their motion for reconsideration on April 19, 2013. Plaintiffs have appealed the denial of
their motion for reconsideration and have moved to stay enforcement of the subpoena pending
appeal. For the reasons set forth below, the Court denies the motion to stay.
A stay pending appeal is “an extraordinary remedy.” Kuri v. Edelman, 491 F.2d 684, 687
(7th Cir. 1974). To warrant such relief, the party seeking a stay pending appeal must demonstrate
that: “1) it has a reasonable likelihood of success on the merits; 2) no adequate remedy at law
exists; 3) it will suffer irreparable harm if it is denied; 4) the irreparable harm the party will
suffer without relief is greater than the harm the opposing party will suffer if the stay is granted;
and 5) the stay will be in the public interest.” Hinrichs v. Bosma, 440 F.3d 393, 396 (7th Cir.
2006).
With respect to the likelihood of success on appeal, the Court first addresses the question
of whether the Seventh Circuit has jurisdiction to review an order denying the plaintiffs’ motion
to quash the third party subpoena. This is a jurisdictional matter for the Court of Appeals, but a
merits matter for this Court. If the Court of Appeals does not have jurisdiction to hear the
plaintiffs’ appeal, then the appeal is doomed to fail and there is no need to issue a stay (as there
would be no likelihood of success).
Discovery rulings are generally not "final" orders and, being interlocutory in nature,
cannot be appealed as of right. The plaintiffs assert, however, that an order denying a motion to
quash a subpoena is appealable under the “collateral order doctrine” where the order is directed
against a non-party who would not have a means of appealing the order at the conclusion of the
underlying litigation. In their supplemental brief, the plaintiffs describe the doctrine as an
exception to the general rule against interlocutory appeals (Supplement at 1), but the Seventh
Circuit explained in Ott v. City of Milwaukee, 682 F.3d 552, 554 (7th Cir. 2012), that it is not.
Rather, the doctrine subsumes a narrow set of orders that are immediately final because they “are
conclusive, … resolve important questions completely separate from the merits, and … would
render such important questions effectively unreviewable on appeal from final judgment in the
underlying action.” Id.
Ott also makes plain that if the plaintiffs’ claims against Sanofi were pending in this
Court, the order denying the motion to quash would fall outside of the collateral order doctrine.
In Ott, the Seventh Circuit held that the Supreme Court’s opinion in Mohawk Indus., Inc. v.
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Carpenter, 558 U.S. 100 (2009), foreclosed an appeal based, like this one, on denial of a motion
to quash non-party subpoenas. In Mohawk Industries, the Supreme Court held that the collateral
order doctrine does not permit a pre-judgment appeal of an order claimed to violate attorneyclient privilege, deeming post-judgment appeal and other potential means of securing review
(such as appealing a contempt citation) adequate to protect the privilege. The Seventh Circuit
applied this reasoning in Ott to reject jurisdiction over the appeal of non-party state agencies that
had not definitively resisted subpoenas issued to them by refusing to comply and appealing a
resulting contempt citation. 682 F.3d at 555. Absent that sort of definitive resistance, a nonparty’s challenge to a disclosure order must await final judgment before appellate review may be
had.
But what about a case, like this one, where the underlying claims are pending in another
district? The plaintiff's claims are not pending in this Court; this is an ancillary proceeding to
enforce a subpoena issued by this Court pursuant to the requirements of FRCP 45(a)(2). As such,
the plaintiffs maintain that the Court's order denying the motion to quash is a final, appealable,
order because it terminates the proceedings in this Court and will not be reviewable on appeal
from the final disposition of the underlying law suit; any appeal that may be filed from a final
judgment or other final order in the underlying law suit would be heard not by the Seventh
Circuit, but by the Second Circuit, which reviews final orders appealed from the District of New
Jersey. The Second Circuit cannot review orders issued by district courts in this or other circuits
(see 28 U.S.C. § 1294(1)), so the plaintiffs maintain that they will be denied any review of this
Court’s order if not permitted to appeal as of right. 1
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This problem presents itself only when the ancillary district is in a different circuit than the
court in which the lawsuit is pending. When both district courts are within the same circuit, “the
court of appeals can act as effectively on appeal from the final judgment as if the discovery
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The plaintiffs argue that the Seventh Circuit has long held that ancillary discovery orders
are final and appealable orders. See, e.g., Natta v. Zletz, 379 F.2d 615, 618 (7th Cir. 1967)
(“[W]e regard it to be established law in this Court that denial of the ultimate relief sought by a
proceeding ancillary to primary litigation pending before another tribunal, as to which ancillary
relief no review will or can be made in the main proceeding, is appealable as a final order under
28 U.S.C. § 1291.”). Sanofi agrees—up to a point. Sanofi contends that the plaintiffs have
overstated the scope of circuit precedent allowing appeal of ancillary discovery orders, noting
that those rulings have occurred in the context of orders denying discovery requests. Allowing
immediate appeal under the collateral order doctrine makes sense in that context, it says, because
an order denying the requested discovery really does terminate the proceedings in the ancillary
court; there is nothing left for the losing party to do but appeal the order.
But as Sanofi points out, that is not necessarily the case where the ancillary order grants
discovery. In that context, it is far from certain that the order in question will actually end the
proceedings in the ancillary district; a ruling that grants discovery may signal the beginning,
rather than the end, of an ancillary court’s involvement in the underlying matter because it is
foreseeable, and at least in some cases likely, that the ancillary court will be called upon to make
further rulings as the discovery authorized by its order proceeds. The prospect of further court
intervention related to the enforcement, modification, or supplementation of the discovery order
means that allowing immediate appeal of the order granting discovery would present the specter
of additional, piecemeal, appeals arising from proceedings relating to the ancillary court's
ruling had been made in a single proceeding.” 15B Charles Alan Wright, Arthur R. Miller, et al.,
Federal Practice and Procedure § 3914.24 at 180-81(2d ed. 1987) (noting that several circuits
have held that denial of ancillary discovery cannot be appealed if the ancillary proceeding is
brought in a district court within the same circuit as the underlying case).
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ongoing enforcement of its order and related supervision of the discovery process within the
ancillary district. In this case, for example, Sanofi asserts that the Court should anticipate that
there will be disputes about the invocation of privilege by the plaintiffs, about the adequacy of
their privilege log, and that it will be necessary to conduct a number of depositions of Navigant
personnel once documents have been produced and that those depositions may present disputes
that the Court will be called upon to resolve. If the plaintiffs are deemed to have a right to a nondiscretionary appeal based on this Court’s denial of their motion to quash, then by the same logic
the plaintiffs would have the same immediate right to appeal any other discovery order that this
Court may be required to make, presenting a substantial risk of piecemeal appeals.
For that reason, Sanofi argues, “the general rule persists that appeal cannot be taken from
an order granting discovery in an ancillary proceeding.” 15B Charles Alan Wright, Arthur R.
Miller, et al., Federal Practice and Procedure § 3914.24 (2d ed. 1987). The distinction drawn by
Sanofi has the force of logic behind it, and some case law from other circuits, but none from the
Seventh Circuit. 2 As matters stand in this circuit, no distinction between orders granting and
denying discovery in ancillary proceedings has been considered, so far as the Court can tell, and
it appears to be an open question whether the Seventh Circuit will extend the rationale of
Mohawk Industries and Ott to the context of orders in ancillary proceedings granting discovery
against non-parties.
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The Seventh Circuit has, however, held that orders permitting discovery in post-judgment
proceedings are not immediately appealable under the collateral order doctrine, precisely for the
reason that such orders do not terminate the post-judgment proceedings but merely allow them to
continue. See, e.g., JPMorgan Chase Bank, N.A. v. Asia Pulp & Paper Co., Ltd., 707 F.3d 853,
868-69 (7th Cir. 2013). As the court observed, “the question is whether the district court's order
completely disposes of the postjudgment proceedings, not a single issue within those
proceedings.” Id. at 868 (emphasis in original).
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Another open question further complicates the question of the circuit court’s jurisdiction
to hear the plaintiffs’ appeal; that is, whether Mohawk Industries—holding that there is no right
to immediate appeal under the collateral order doctrine by a party subject to a discovery ruling
claimed to infringe a privilege because post-disclosure, post-judgment appellate review suffices
as a remedy—abrogates the Perlman doctrine. In Perlman v. United States, 247 U.S. 7 (1918),
the Supreme Court held that a contempt citation is not required as the predicate for an immediate
appeal of a discovery order where the order is directed to a disinterested third party that has no
incentive to subject itself to contempt. See also, e.g., Church of Scientology v. United States, 506
U.S. 9, 18 n.11 (1992). In Wilson v. O’Brien, 621 F.3d 641, 643 (7th Cir. 2010), the Seventh
Circuit observed that “Mohawk Industries calls Perlman and its successors into question,”
thereby suggesting the possibility that the circuit court may reassess the viability of precedent
permitting appeal of orders directed against non-parties. The Seventh Circuit has not, however,
definitively resolved the question it raised in Wilson, and in Ott it did not cite or distinguish
Perlman in noting that the party/non-party distinction was not material “under the facts presented
here [because] the state agencies’ interests in protecting their privileged materials are as strong as
those of a party.” 682 F.3d at 555. The Court’s observation suggests that the Perlman doctrine
may still have some life in situations where a disinterested non-party is the target of the
challenged discovery.
In view of the unsettled questions relating to the effect of Mohawk Industries on
questions pertaining to the right of a non-party to seek immediate appeal of an order granting
discovery in an ancillary proceeding, deference to the Court of Appeals’ ability and prerogative
to assess its own jurisdiction seems warranted. That is particularly so at this juncture, when it
seems likely that the Court itself will soon be required to take up these issues in addressing the
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plaintiffs’ appeal (their appellate brief has already been filed). The Court therefore declines to
deny the plaintiffs’ motion to stay on the ground that the Court of Appeals would lack
jurisdiction to hear the appeal at this time.
Putting that question aside, however, the Court nevertheless concludes that the motion to
stay should be denied, for at least two reasons. First, the Court, perhaps not surprisingly,
concludes that, for reasons other than lack of jurisdiction, the plaintiffs are unlikely to prevail on
appeal (thus, that there is not a reasonable likelihood of success on appeal). The premise of the
plaintiffs’ argument to the contrary is that the Court failed to acknowledge that the scope of the
work product doctrine is broader than set forth in Rule 26(b)(3). That is simply incorrect.
Unquestionably, the common law work product doctrine may extend beyond areas specifically
addressed by the Rule, and the Court’s order expressly acknowledged that Rule 26 replaced the
common law doctrine only “to the extent that the federal rule is inconsistent with the common
law rule that preceded it.” But that just means, as Sanofi explains in its response, that aspects of
the common law doctrine may govern in circumstances not addressed by the Rule. It does not
suggest that, where the Rule explicitly conditions protection on party status, that common law
may be invoked to extend the scope of the protection available in federal cases to non-parties. To
so hold would abrogate the limitations affirmatively imposed by the Rule and contravene the
Supreme Court’s teaching that Rule 26(b)(3) sets forth “the extent to which trial preparation
materials are discoverable in federal courts.” FTC v. Grolier Inc., 462 U.S. 19, 25 (1983). None
of the cases that the plaintiffs cite in their motion for stay pending appeal support the proposition
that the common law work product doctrine modifies the express limitations on the scope of the
doctrine set forth in Rule 26(b)(3). And none holds that the doctrine shields from discovery in a
federal case work product documents that were not prepared on behalf of a party to that case.
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The weight of authority on this question, though not controlling, decisively reflects the view that,
in limiting its scope to materials prepared “by or for another party,” Rule 26(b)(3) means what it
says. 3
Second, the Court concludes that the plaintiffs will suffer no irreparable injury from preappeal disclosure of the documents sought from Navigant. In this regard, it is important to note
that while the subpoena at issue seeks discovery from Navigant, it is not Navigant, but the
plaintiffs, who have challenged the subpoena. They do so to protect from disclosure alleged
attorney work product that was created not in connection with their retention of B&M’s services,
but rather in connection with B&M’s representation of another, as yet unidentified client, who
had retained B&M before either of the plaintiffs in this case did so. 4 The plaintiffs have not
explained the basis for their claim to have a protectable interest in the non-disclosure of work
product that their attorney prepared for another client. They argue that disclosure will give
Sanofi “unfair insight into Plaintiffs’ strategy and mental impressions concerning [this]
litigation,” but offer no explanation as to why disclosure of documents prepared by their attorney
3
See, e.g., LG Elecs., Inc. v. Motorola, Inc., 2010 WL 4513722, at *3 (N.D. Ill. Nov. 2, 2010)
(collecting cases holding that Rule 26(b)(3) limits work product status to materials prepared “by
or on behalf of another party or its representative”). See also, e.g., Tambourine Comercio
Internacional SA v. Solowsky, 312 F. App’x 263, 284 (11th Cir. 2009); In re Grand Jury
Subpoena Duces Tecum, 112 F.3d 910, 924 (8th Cir. 1997); Arkwright Mut. Ins. Co. v. Nat’l
Union Fire Ins. Co., 19 F.3d 1432, 1994 WL 58999, at *4 (6th Cir. 1994); In re California Pub.
Utils. Comm’n, 892 F.2d 778 (9th Cir. 1989); Bozeman v. Chartis Cas. Co., 2010 WL 4386826,
at *2 (M.D. Fla. Oct. 29, 2010); S.E.C. v. Microtune, Inc., 258 F.R.D. 310, 317 n.3 (N.D. Tex.
2009); In re Polypropylene Carpet Antitrust Litig., 181 F.R.D. 680, 691 (N.D.Ga.1998); Gomez
v. City of Nashua, 126 F.R.D. 432, 434 n. 1 (D.N.H.1989); Chaney v. Slack, 99 F.R.D. 531, 533
(S.D.Ga.1983); Galambus v. Consolidated Freightways Corp., 64 F.R.D. 468, 473 (N.D.
Ind.1974).
4
In its original April 9 order, the Court modified the subpoena to require production only of
documents that predate plaintiff Castro’s retention of B&M as her counsel (Sugartown Pediatrics
retained B&M after Dr. Castro did so). Thus, by definition, the only dispute here concerns the
requirement to produce documents that were created before either of the plaintiffs ever became a
client of B&M.
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on behalf of another client, who is not a party to this case, would be “unfair.” Their argument
simply presupposes that they have a protectable interest in documents their attorney created for
someone else.
That the plaintiffs’ counsel, B&M, has a protectable interest in work product they
prepared for another client does not change the equation. Even if disclosure of that work product
would harm B&M in some way (a debatable proposition, given that the purpose of the work
product rule is not to protect attorney privacy but the adversary trial process), the fact remains
that it is the plaintiffs, not B&M, who are challenging the Navigant subpoena and it is therefore
the plaintiffs, not B&M, who must establish irreparable harm in order to obtain a stay of the
Court’s order pending appeal. The Court took pains to clarify this point during the hearing on the
motion to stay conducted on May 8, 2013, and at that time B&M expressly disavowed that it had
any interest in the documents sought by the Navigant subpoena that was distinct from that of the
plaintiffs. As the plaintiffs have no protectable interest in the documents that are subject to the
Navigant subpoena, it follows then that B&M has no protectable interest in the subpoenaed
documents either.
Because the Court concludes that the plaintiffs have little prospect for success on the
merits, and because they have failed to establish that they will be irreparably harmed if a stay of
the Court’s April 19 Order is not granted, the Court denies the plaintiffs’ motion for a stay of that
Order pending appeal. In addition, the Court enters further orders as follows:
(1) Dr. Castro is directed to submit to the Court, within 7 days of the entry of this Order,
an affidavit setting forth the date that she retained B&M to provide legal services in connection
with the matters at issue in this lawsuit (along with information sufficient to support the date set
forth). Plaintiff is also required to provide a copy of this filing to Navigant by the same date.
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(2) The Court grants Sanofi’s motion to enforce the Navigant subpoena in part. Navigant
is directed to produce within 21 days of the entry of this Order (i) all documents within its
possession, custody, or control that are responsive to the subpoena as modified in accordance
with this Court’s April 9, 2013 and April 19, 2013 orders; and (ii) a privilege log reflecting all
documents withheld based on any claim of privilege that the Court has not already addressed in
this matter.
Entered: July 18, 2013
John J. Tharp, Jr.
United States District Judge
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