In Re Namenda Direct Purchaser Antitrust Litigation
MEMORANDUM AND ORDER denying #265 Motion to Compel; denying #267 Motion to Compel. The plaintiffs' motion to compel (Docket nos. 265 and 267) is denied at this time. The dispute regarding these documents may be raised in an orderly fashion in the plaintiffs' anticipated omnibus motion. Prior to filing that motion, the parties shall meet and confer in light of the guidance provided in this Order. Indeed, the parties are cautioned that any motion that is filed prior to a meaningful meet-and-confer process may be denied on that basis alone, and the parties shall strictly adhere to the requirements of Rule 37(a)(1) of the Federal Rules of Civil Procedure. Recalcitrance in the meet-and- confer process on the part of the non-movant -- whether for the purpose of delay, cf. In re Namenda Direst Purchaser Antitrust Litigation, No. 15 Civ. 7488, 2017 WL 3085342, at *6 n.6 (S.D.N.Y. July 20, 2017), or for any other reason may result in sanctions. A tight discovery schedule does not absolve the parties of the responsibility to adhere to the Court's procedural rules. Further motions seeking rulings on waiver may be asserted only "with respect to specifically identified documents or communications so that I may rule on discrete waiver assertions." Lidoderm, 2016 WL 4191612, at *1. SO ORDERED. (Signed by Magistrate Judge James C. Francis on 8/2/2017) Copies Transmitted this Date By Chambers. (anc)
a number of Forest’s central defenses in this action relied on
Forest’s assessment of the legal merits of the underlying patent
litigation between Forest and the generic drug companies, which
would implicate counsel’s advice.
Id. at *2.
that it “ha[d] not yet necessarily injected [into this litigation]
its subjective views of the strength of the [relevant] patent or
action,” noting that it could support its defenses with “objective
prosecution history of the patent, and factual material from the
Id. at *4.
I found that, given the “stage of discovery and Forest’s
representations, I [could not] determine that Forest ha[d] broadly
waived attorney-client privilege and work product protection.”
Id. at *5.
Adopting a strategy used in In re Lidoderm Antitrust
Litigation, No. 14-md-2521, 2016 WL 4191612 (N.D. Cal. Aug. 9,
2016), I required Forest to “disclose any subjective beliefs it
will rely on in its defense of this action.”
Namenda, 2017 WL
2226591, at *5.
Forest did so, asserting that it would rely on “evidence from
its current or former business executives or employees” to rebut
illegitimate or anti-competitive justifications,” (2) allegations
that “its conduct with respect to the Namenda patent litigations
allegations that “the Namenda IR patent litigation settlement
agreements provided generic competitors any consideration beyond
the express terms of each of the final agreements.”
Disclosure Pursuant to the May 19, 2017 Memorandum and Order (“Def.
Disclosure”), attached as Exh. A to Memorandum in Support of Direct
Purchaser Plaintiffs’ Motion to Compel Production of Documents
(“Pl. Initial Memo.”), at 4-5).
The plaintiffs promptly filed a motion to compel seeking an
“Order finding that [Forest] may not withhold factual information
regarding its subjective intent evidence” even if that factual
information “is embedded in attorney-client communications and/or
(Pl. Initial Memo. at 3, 9).
Forest asserted that it had repeatedly committed to producing nonprivileged
including redacted versions of documents containing privileged
information, and that it had never argued that “non-privileged
(Defendants’ Opposition to Direct Purchaser Plaintiffs’ June 15,
2017 Motion to Compel Production of Documents (“Def. Initial
Memo.”), at 4, 6-7).
Forest also made the (accurate) point that
it had neither completed production nor produced a privilege log
and so the plaintiffs’ “dispute” was not “ripe for the Court’s
(Def. Initial Memo. at 7).
In light of Forest’s
representation that it would produce a privilege log on or before
June 30, 2017, and would make significant production of documents
in the surrounding weeks (Def. Initial Memo. at 7), I deferred
resolution of the plaintiffs’ motion.
In mid-July, I requested
that the parties update the briefing of the motion in light of the
The plaintiffs’ new submission focuses on Forest’s argument
that its business deals were not motivated by illegitimate or anticompetitive justifications, for which it “anticipates presenting
concerning the business considerations, rationales, and reasons
producers] Mylan and Orchid.”
(Def. Disclosure at 4).
plaintiffs contend that because this defense “place[s] at issue
what Forest’s management actually believed about the value and
purpose of the deals,” Forest must produce “factual information
Memorandum in Support of Direct Purchaser Class Plaintiffs’ Motion
to Compel Production of Documents (“Pl. Supp. Memo.”) at 2).
Unlike in their initial submissions, where they “failed to
cite a single document . . . that they believe is problematic”
(Def. Initial Memo. at 7), the plaintiffs have now identified three
documents or types of documents to support their hypothesis that
Forest is improperly withholding information.
The first is a
draft slide presentation for a Mylan settlement meeting, which
Forest inadvertently produced and then clawed back.
spreadsheets containing financial analyses relevant to “the cost,
contend was a vehicle that Forest used to make a ‘reverse payment’
to Mylan as part of the Namenda patent settlement.”
Memo. at 1, 3-4).
This group includes a set of spreadsheets
regarding the Lexapro amendment that was produced twice -- once in
full and again with redactions.
(Pl. Supp. Memo. at 3; Declaration
of Dan Litvin dated July 24, 2017, Exhs. A & B).
The third is an
email from a former Forest in-house lawyer to Forest business
Namenda patent-suit settlement” and a side deal concerning the
(Pl. Supp. Memo. at 4).
The plaintiffs suppose
information concerning Forest’s justifications for the settlement
(Pl. Supp. Memo. at 4). Forest has since clawed back
the document including this email and produced a version that
redacts large swaths of the email chain, including the portion
that the plaintiffs cite in their motion.
(Letter of Heather K.
McDevitt dated Aug. 1, 2017 (“McDevitt Letter”), at 1).
Although it is not completely clear, it appears that the
plaintiffs seek a ruling that Forest has waived privilege over
these documents because testing the “subjective belief” identified
above can only be assessed by examining the documents.
Memo. at 2 n.3, 4-5; Pl. Initial Memo. at 7).
Forest, for its
part, has provided, for my in camera review, copies of the draft
slide presentation and of the unredacted email chain.
Letter & Exhs. A, C, D).
As to the set of spreadsheets that was
produced both unredacted and redacted, Forest has reviewed it and
“agrees that [the] attachments are not privileged.”
Opposition to DPPs’ Supplemental Memorandum in Support of June 15,
2017 Motion to Compel Production of Documents (“Def. Supp. Memo.”)
spreadsheets are not privileged.
(Def. Supp. Memo. at 5).
Forest’s argument regarding the waiver issue is sparse.
asserts that it “agreed to forego presenting ‘factual assertions’
identified  three narrow areas of subjective belief, all of which
turn exclusively on business judgment and experience.”
Lidoderm -- which Forest acknowledges provides the “framework” for
my analysis of the waiver issue (Def. Supp. Memo. at 2 (citing
Namenda, 2017 WL 2226591, at *5)) -- stands for the proposition
‘derived exclusively from business judgment and experience’ does
not effectuate an at issue waiver” (Def. Supp. Memo. at 3 (emphasis
omitted) (quoting Lidoderm, 2016 WL 4191612, at *1)).
cannot avoid waiver by offering to rely at summary
judgment or trial solely on non-legal justifications for
certain subjective beliefs. There is no doubt -- given
the question at issue is whether anticompetitive goals
motivated defendants’ settlement -- that business advice
and non-legal facts were considered by settlement
But if defendants inject their
subjective beliefs on specific topics as part of their
defense of the [relevant] settlement . . . where evidence
establishes that the subjective belief was also informed
by attorney advice, it would be unfair to not allow
attorney-client information to test the veracity of the
defendants’ justifications in this litigation even
though that belief is based in part on business judgment
and executive experience.
Lidoderm, 2016 WL 4191612, at *5 (emphasis omitted).
even subjective beliefs that “plausibly implicate only business
communications or attorney-created information, because in order
beliefs, “other justifications that [the] plaintiffs have shown
relied on attorney-client advice are also directly implicated.”
Id. at *6.
So, for example, Lidoderm found that a defendant could
not “rely on identified subjective beliefs [assertedly based on
business judgment] where they are backed up by ‘public statements’”
without waiving privilege where there is evidence that “other
motivations” influenced by attorney information “could have been
Id. at *8.
And, perhaps more to the point, the opinion
found that “the reasons, explanations, and intentions for the
. . . to [the generic drug-maker] would appear to
necessarily implicate attorney-client advice because that payment
was a key, if not the central, term of the  settlement agreement
negotiated by [the] defendants’ counsel.”
Id. at *10 (emphasis
That is, Forest’s promise to rely only on information
from business people showing that the Lexapro agreement with Mylan
and the Ceftaroline agreement with Orchid -- which are the alleged
vehicles of the purportedly anticompetitive reverse payments -were motivated by pro-competitive business concerns, does not
therefore baffled by Forest’s insistence that its position here is
“consistent” with Lidoderm.
(Def. Supp. Memo. at 3).
Moreover, in my prior opinion, I endeavored to be explicit in
Let me be clear: it is Forest’s burden to establish that
it has not waived privilege. It is not acceptable for
justifications we are putting forward here are why we
Thus, Forest will have to back up with
argument and evidence any contention as to why the
“subjective beliefs” on which it plans to rely do not,
in fact, implicate privileged communications based on
the guidelines applied in Lidoderm and similar cases.
If there are disputes as to this issue, I will resolve
them after receiving submissions on a truncated briefing
Namenda, 2017 WL 2226591, at *5 (citations omitted) (emphasis
omitted) (quoting Lidoderm, 2016 WL 4191612, at *6).
is based directly on that opinion.
(Pl. Initial Memo. at 1; Pl.
Supp. Memo. at 1; Def. Supp. Memo. at 1-2).
And yet Forest has
failed to explain, with evidence or argument (other than one based
on a seeming misunderstanding of Lidoderm), why protection over
the specific documents identified by the plaintiffs has not been
The plaintiffs, for their part, introduce some different
Their initial motion was filed prematurely, prior to
(Def. Initial Memo. at 7).
It argued (1) that
themselves privileged (Pl. Initial Memo. at 5-6), (2) that even if
privilege over such statements (Pl. Initial Memo. at 7-9), while
(3) disclaiming, for the purpose of the motion, an intent to seek
“legal analysis or legal advice” in connection with the underlying
patent cases (Pl. Initial Memo. at 3).
To the extent that the
plaintiffs intended to argue that facts can never be protected by
work product immunity, they are incorrect, see, e.g., US Bank
National Association v. PHL Variable Insurance Co., Nos. 12 Civ.
6811, 13 Civ. 1580, 2013 WL 5495542, at *8–9 (S.D.N.Y. Oct. 3,
2013) (citing In re Grand Jury Subpoena dated October 22, 2001,
282 F.3d 156, 161 (2d Cir. 2002), but I will leave that aside, as
in their supplemental memorandum, the plaintiffs appear to abandon
that argument to press the waiver issue (Pl. Supp. Memo. at 4-5),
while nevertheless pointing me to the section of their initial
memorandum discussing that abandoned argument (Pl. Initial Memo.
at 5-6; Pl. Supp. Memo. at 2 n.3).
In any case, the plaintiffs
have apparently ditched that issue (for now) in anticipation of
filing a later “omnibus motion” (Pl. Supp. Memo. at 4), which will
presumably address waiver of privilege over legal advice and
plaintiffs dated June 20, 2017, and filed under seal (Letter of
Dan Litvin dated June 20, 2017; Letter of Heather M. Burke dated
July 24, 2017, at 1).
Of course, Forest points out that the supplemental memorandum
was also filed prior to any discussion between the parties as to
the documents at issue, including hundreds of charts (which the
plaintiffs fail to specifically identify).
1; Pl. Supp. Memo. at 4).
(Def. Supp. Memo. at
This chaotic presentation of disputes
and arguments is part of a pattern (which also includes the filing
and subsequent withdrawal of a prior discovery motion (Order dated
June 13, 2017)) that indicates a failure to engage in a meaningful
intervention (Def. Initial Memo. at 4; Def. Supp. Memo. at 1).
will not accept a continuation of this paradigm, which confuses
the issues and wastes judicial resources.
The plaintiffs’ motion to compel (Docket nos. 265 and 267) is
denied at this time.
The dispute regarding these documents may
be raised in an orderly fashion in the plaintiffs’ anticipated
Prior to filing that motion, the parties shall
meet and confer in light of the guidance provided in this Order.
Indeed, the parties are cautioned that any motion that is filed
prior to a meaningful meet-and-confer process may be denied on
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