United States of America, ex rel. et al v. Omnicare, Inc.
Filing
171
Opinion and Order signed by Judge James S. Gwin on 10/15/13. The Court, having completed its review of defendant's 10/2/13 privilege log and documents and documents submitted in compliance with this Court's order of 10/6/13, orders that Defendant Omnicare provide the documents set forth in this Opinion and Order by 12:00 noon on 10/16/13. The Court sustains defendant's other assertions of privilege that the Court has not previously overruled. (Related Doc. 162 ) (M,G)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
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THE UNITED STATES OF AMERICA
:
ex rel. DONALD GALE
:
:
Plaintiff,
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v.
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:
OMNICARE, INC.,
:
:
Defendant.
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:
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CASE NO. 1:10-CV-00127
OPINION & ORDER
JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
On October 13, 2013, this Court issued two orders resolving some of Omnicare’s claims of
privilege for documents withheld during discovery.1/ The Court has finished its review of the
October 2, 2013, privilege log and documents. Omnicare has also submitted documents in
compliance with this Court’s October 6, 2013, order.2/ The Court has reviewed these documents as
well. The Court now makes the following rulings.
I. October 2, 2013 Privilege Log Spreadsheets
The Court overrules Omnicare’s claim of privilege for two phrases that appear in the
spreadsheets produced in native form. Both phrases contain legal advice or requests for legal advice,
but they also contain unprivileged statements.
The first phrase appears in Documents 163, 164, 167, 168 174, 175, 176, 184, 185, 186, 187,
188, 193, 194, 234, 235, 236, 237, 248, 250, 269, 273, 275, 276, 281, 282, 288, 289, 291, 296, 297,
298, 299, 301, 302, 323, 325, 329, 330, 331, 332, 333, 482, 699, 700, 761, 762, 773, 774, 778, and
779. Omnicare may redact this phrase to read, “CAP, Next rate increase October 2010 to $20 PPD -
1/
Docs. 160, 162.
2/
Doc. 140.
Case No. 1:10-CV-00127
Gwin, J.
REDACTED.”
The second phrase appears in Documents 182, 217, 218, 219, 272, 277, 280, 283, 284, 285,
292, 300, 335, 595, and 596. Omnicare may redact this phrase to read, “Sam Enloe to deliver
message and REDACTED.”
II. Keefe/Germunder Documents
The Court overrules Omnicare’s claim of privilege for Documents 11 and 13. These
documents synthesizes legal advice and business decisions. Although any notation of what the legal
advice of counsel actually was or the fact that advice was sought may be redacted, the remainder of
this document must be disclosed.
The Court overrules Omnicare’s claim of privilege for Document 12. Although the e-mail
does contain the legal advice of counsel, the underlying attachment summarizes and excerpts the
provisions of unprivileged contracts. This is not privileged. It is also not protected by the attorney
work product protection because there is no indication it was prepared in anticipation of any
litigation.
The Court overrules the claim of privilege for Documents 17 and 18. The legal advice in
these documents was disclosed to independent third parties.
The Court also overrules the claim of privilege for Document 19. This document contains
privileged legal advice. But it also contains legal advice which was disclosed to third parties. The
advice is no longer protected.
By noon on October 16, 2013, Omnicare must provide the documents described above.
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Case No. 1:10-CV-00127
Gwin, J.
The Court sustains Omnicare’s other assertions of privilege that the Court has not previously
overruled.
IT IS SO ORDERED
Dated: October 15, 2013
s/
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE
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