TUCCI v. GILEAD SCIENCES, INC.

Filing 73

MEMORANDUM ORDER granting 62 Motion to Compel Responses to Discovery Requests. Signed by Judge J. Nicholas Ranjan on 5/22/2023. (pak)

Case 2:21-cv-01859-NR Document 73 Filed 05/22/23 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
BLASE TUCCI,
Plaintiff,
v.
GILEAD SCIENCES, INC.,
Defendant.

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2:21-CV-1859-NR

MEMORANDUM ORDER
Before the Court is Plaintiff Blase Tucci’s motion to compel Defendant Gilead
Sciences to respond to discovery requests and provide materials from two internal
Gilead investigation files: one related to Mr. Tucci’s complaints about improper
business conduct (the August 2018 investigation) and the other related to Mr. Tucci’s
complaints about retaliation against him (the December 2018 investigation). ECF
62. Mr. Tucci claims that these files contain relevant, non-privileged materials, but
that Gilead has asserted a blanket privilege over them and provided an inadequate
privilege log. Id. at 4-9. Gilead has withdrawn its claim of privilege for the December
2018 investigation, but maintains that the materials in the August 2018 investigation
file are not relevant to Mr. Tucci’s claims and are otherwise protected by the attorneyclient privilege and work-product doctrine.

ECF 65, p. 2-4.

After careful

consideration, the Court agrees with Mr. Tucci, and finds that Gilead’s categorical
assertion of privilege over a relatively small universe of documents to be improper.
Thus, for the reasons that follow, the Court GRANTS Mr. Tucci’s motion.
Mr. Tucci is entitled to discovery that is relevant, non-privileged, and
proportional to the needs of the case. Fed. R. Civ. P. 26(b)(1). The Court begins with
relevance, but some background is in order. The second amended complaint alleges
that Mr. Tucci reported misconduct to Gilead’s legal department in August 2018, and

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that Gilead’s legal department launched an investigation into this misconduct. ECF
35, ¶¶ 89-98. As part of that report, Mr. Tucci provided Gilead’s legal department
the names of his supervisors who he alleged were involved, including Harry Durr and
Brian Vautier. Id., ¶ 95. Mr. Tucci alleges that he was retaliated thereafter by these
supervisors, including through unjustifiably negative performance reviews. Id., ¶¶
99-132.
Based on this, the Court finds that the August 2018 investigation and
associated file documents are clearly relevant. Those documents can go to pretext,
which is part of a plaintiff’s prima facie whistleblower claim. Javitz v. Luzerne Cnty.,
No. 85 MAP 2021, 2023 WL 3263481, at *6, *11 (Pa. May 5, 2023). For example, if
Gilead discovered that Mr. Tucci’s report was meritorious, it might have provided a
motive to retaliate.

Also, if Gilead conveyed certain information to Mr. Tucci’s

supervisors as part of this investigation (which can be plausibly inferred from the
second amended complaint (ECF 35, ¶¶ 103-110)), Mr. Tucci could connect some of
the causal dots between his report and their mistreatment of him. That, in turn,
could cast doubt on the performance-based reasons for Mr. Tucci’s termination. Thus,
the August 2018 investigation and related file are relevant.
The next question is whether the August 2018 report and file is privileged. On
this question, it’s important to distinguish between the final report itself and “the
file” (i.e., documents, witness statements, and the like that were reviewed as part of
the investigation). 1
Taking Gilead’s in-house counsel at her word, the August 2018 report was
prepared by in-house counsel to provide advice to the company. ECF 65-1, ¶ 5. This
The discovery dispute here concerns the “final report” from the August 2018
investigation conducted for the purpose of providing legal advice to Gilead, and the
“[f]ile from [that] investigation by in-house counsel into Plaintiff’s August 2018
Business Conduct Report.” ECF 63-1. From those files, Mr. Tucci seeks “all nonprivileged documents contained in the investigative files, including witness
1

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is clearly protected from disclosure by the attorney-client privilege and work-product
doctrine. Serrano v. Chesapeake Appalachia, LLC, 298 F.R.D. 271, 280 (W.D. Pa.
2014) (Cercone, J.) (applying Pennsylvania law and concluding that investigative
report

conducted

by

counsel

into

wrongful

death

incident

and

“related

communications involving its content and/or the application of the assessments and
strategies advanced by [counsel] . . . are protected by the attorney-client privilege”);
see also United States v. Amerada Hess Corp., 619 F.2d 980, 986 (3d Cir. 1980) (“Legal
advice or opinion from an attorney to his client, individual or corporate, has
consistently been held by the federal courts to be within the protection of the
attorney-client privilege.”).
The investigative file, though, requires a more nuanced analysis.

Gilead

invoked both attorney-client privilege and work-product protection over these
documents. The attorney-client privilege, which in this diversity case is controlled by
Pennsylvania law, 2 “operates in a two-way fashion to protect confidential client-toattorney or attorney-to-client communications made for the purpose of obtaining or
providing professional legal advice.” Gillard v. AIG Ins. Co., 15 A.3d 44, 59 (Pa. 2011).
The privilege applies to corporations and extends to communications between
corporate employees (regardless of their position) and counsel when the
communications “are kept confidential and when they are made at the behest of
counsel and with the goal of furthering counsel's provision of legal advice to the client,
statements, communications with witnesses, the identity of witnesses interviewed as
part of each investigation, documents collected for purposes of the investigations, and
draft documents prepared as part of the investigations by non-legal counsel and
which do not reflect attorney-client communications[.]” ECF 63, p. 10.
That said, the Court notes that “the Third Circuit and the state of Pennsylvania
apply the same test in evaluating the attorney client privilege.” Nesselrotte v.
Allegheny Energy, Inc., No. 06-1390, 2008 WL 2858401, at *4 (W.D. Pa. July 22, 2008)
(Fischer, J.) (citations omitted).

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the corporation.” Custom Designs & Mfg. Co. v. Sherwin-Williams Co., 39 A.3d 372,
379 (Pa. 2012). That said, “the privilege obstructs the truth-finding process and is to
be construed narrowly. The privilege protects only those disclosures—necessary to
obtain informed legal advice—which might not have been made absent the privilege.”
Serrano v. Chesapeake Appalachia, LLC, 298 F.R.D. 271, 281 (W.D. Pa. 2014)
(cleaned up). “The showing necessary to establish the privilege is settled: (1) When
legal advice of any kind is sought (2) from a professional legal adviser in his capacity
as such, (3) the communications relating to that purpose, (4) made in confidence (5)
by the client, (6) are at his insistence permanently protected (7) from disclosure by
himself or by the legal adviser, (8) except the protection be waived.” Id. (cleaned up).
The work-product doctrine, codified in Federal Rule of Civil Procedure 26(b),
“is designed to protect material prepared by an attorney acting for his client in
anticipation of litigation.

In contrast, the doctrine does not protect documents

prepared in the ordinary course of business, or pursuant to public requirements
unrelated to litigation, or for other non-litigation purposes.” Id. at 277 (cleaned up).
Because Gilead invokes both protections over the August 2018 investigation
materials, it must show either that the contents are communications made from
client to counsel or counsel to client in confidence and for the purpose of obtaining
legal advice, or that the contents were prepared in anticipation of litigation and not
in the ordinary course of business. Id. at 276-77, 281. It has done neither. Instead,
it asserts a blanket privilege over the entire investigation file simply because the
materials underly the investigation. ECF 65, p. 12.
That argument misses the mark because it stretches the privilege too wide.
The law is clear that “[w]hat are protected in most instances . . . are the
communications themselves. Documents sent to or prepared by counsel incorporating
such information for the purpose of obtaining or giving legal advice, planning trial
strategy, etc. are protected from compelled disclosure.” Andritz Sprout-Bauer, Inc. v.
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Beazer E., Inc., 174 F.R.D. 609, 633 (M.D. Pa. 1997). But “[a] party may not refuse to
disclose facts simply because that information came from a lawyer.” Servis One, Inc.
v. OKS Grp. Int’l Pvt. Ltd., No. 20-CV-4661, 2021 WL 5882101, at *14 (E.D. Pa. Dec.
13, 2021) (cleaned up). In fact, both the attorney-client privilege and work-product
doctrine carve out discovery of purely factual material from documents that might
otherwise receive privilege protection. See Hickman v. Taylor, 329 U.S. 495, 511
(1947) (Where “relevant and non-privileged facts remain hidden in an attorney’s file
and where production of those facts is essential to the preparation of one’s case,
discovery may properly be had.”); Andritz Sprout-Bauer, 174 F.R.D. at 632-33 (“To
the extent that purely factual material can be extracted from privileged documents
without divulging privileged communications, such information is obtainable.”).
Similarly, the mere fact that counsel reviewed material as part of an
investigation conducted for the purpose of providing legal advice does not of itself
subject that material to protection. Patel v. Kensol-Franklin, Inc., No. 14-1439, 2016
WL 1109874, at *5 (M.D. Pa. Mar. 22, 2016) (“Simply because the photographs are
part of the investigation report does not entitle them to protection under either the
attorney-client privilege or the work-product doctrine.”); LaVeglia v. TD Bank, N.A.,
No. 2:19-1917, 2020 WL 127745, at *4 (E.D. Pa. Jan. 10, 2020) (documents that “do
not implicate any communications with counsel” or “do not include legal advice that
was given” are not privileged).
Rather, the materials are protected only where they reflect communications
made for the purpose of obtaining legal advice or were prepared by an attorney in
anticipation of litigation. See LaVeglia, 2020 WL 127745, at *4 (privilege required
redaction of email chain relating to discussions with counsel about prospect of
litigation but could otherwise be produced); Smith v. Unilife Corp., No. 13-5101, 2015
WL 667432, at *3 (E.D. Pa. Feb. 13, 2015) (draft SEC Form 10-K reports were
privileged to the extent the drafts contained legal advice and communications
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between counsel and client). By characterizing the file contents as privileged by
virtue of their presence in the file, and not by their actual content, Gilead has failed
to meet its burden. Reynolds v. Slippery Rock Univ., No. 18-1571, 2021 WL 796029,
at *5 (W.D. Pa. Mar. 2, 2021) (Fischer, J.) (“[C]laims of privilege must be asserted
document by document, rather than as a single, blanket assertion.” (cleaned up)).
Gilead attempts to draw a distinction between “purely factual information” and
“underlying facts” that are the subject of a “privileged investigation” to justify its
blanket privilege. ECF 65, pp. 11, 12 n.5. Disclosing those “underlying factual”
materials, it argues, would “necessarily reveal counsel’s thought process and
opinions, which are protected by the privilege.” ECF 65, p. 11 (citation omitted). But
that distinction is tantamount to covering up the facts “simply because that
information came from a lawyer.” Servis One, Inc., 2021 WL 5882101, at *14. Indeed,
if Gilead were correct, then the privilege would prevent disclosure of a (hypothetical)
smoking gun email between two non-legal counsel employees that indisputably
proved Mr. Tucci’s termination was pretextual—merely because in-house counsel
reviewed the email as part of its investigation. Both the attorney-client privilege and
work-product doctrine “will not protect against the disclosure of underlying facts or
protect clients from factual investigations.” Abraham v. Phillips, 287 A.3d 848, *4
(Pa. Super. Ct. 2022) (cleaned up), appeal denied, No. 311 EAL 2022, 2023 WL
3087342 (Pa. Apr. 26, 2023); Polansky v. Exec. Health Res., Inc., No. 12-4239, 2018
WL 1964195, at *3 (E.D. Pa. Apr. 26, 2018) (“Defendant cannot preclude discovery on
these facts merely because they were the topic of privileged communications or
attorney work product.” (emphasis in original)).
In sum, Gilead cannot invoke a blanket privilege over the investigation file,
and must produce responsive non-privileged documents from the file, or otherwise

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provide a log that identifies, by document, which specific documents are being
withheld and the basis for withholding them. 3
Additionally, to the extent that the log (or answers to Mr. Tucci’s discovery
requests) reveals the identities of individuals who were interviewed or gave witness
statements as part of the investigation, that information is not protected and must
be logged or produced.
Gilead argues that the identity of witnesses might be work-product protected.
The Court disagrees. See In re Auto. Refinishing Paint Antitrust Litig., No. MDL
1426, 2006 WL 1479819, at *5 (E.D. Pa. May 26, 2006) (collecting cases and
concluding that while witness or interviewee lists “may provide a remote clue as to
the nature and scope of [a party’s] investigation, their substantive work product
content is minimal. In producing this information, [the party] need not reveal any of
the details of the interactions that occurred or the mental impressions, conclusions,
legal theories, or opinions drawn therefrom.”); see also Amerada Hess, 619 F.2d at
987-88 (list of interviewees “is of rather minimal substantive content, and presents
none of the classic dangers to which the Hickman v. Taylor rule is addressed.”).
But even if the identities of interviewees were covered by the work-product
doctrine, the Court finds that there is a “substantial need” to produce this
information, triggering an exception to the doctrine. Serrano, 298 F.R.D. at 276.
That is because knowledge of the investigation by certain individuals at the
company—specifically, Mr. Dunn and Mr. Vautier—is of critical relevance, given that
The Court is also not convinced that a privilege review of the file documents (about
2,900 documents) is so burdensome as to allow Gilead to escape its obligations to
create a specific privilege log. See Northwood Nursing & Convalescent Home, Inc. v.
Cont’l Ins. Co., 161 F.R.D. 293, 299 (E.D. Pa. 1995) (compilation of privilege log for
“hundreds” of documents, “most of which are privileged,” not unduly burdensome,
especially as compared to “17 million potentially privileged documents”).
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the claim here is that Mr. Tucci was retaliated against for reporting misconduct to
the legal department, and communications about the investigation may be evidence
that Mr. Tucci’s supervisors knew of his report. See In re Plastics Additives Antitrust
Litig., No. 03-2038, 2007 WL 9825891, at *2 (E.D. Pa. Feb. 28, 2007) (list of witnesses
“is discoverable upon a minimal showing” of need). 4
*

*

*

Therefore, after careful consideration and consistent with the foregoing, it is
hereby ORDERED that Mr. Tucci’s motion to compel responses to discovery (ECF
62) is GRANTED. Gilead shall respond to the disputed discovery requests and
produce responsive non-privileged documents from the investigative file within 21
days of this order, along with a privilege log. 5
DATED: May 22, 2023

BY THE COURT:
/s/ J. Nicholas Ranjan
United States District Judge

Gilead cites Utesch v. Lannett Co., No. 16-5932, 2020 WL 7260775, at *7 (E.D. Pa.
Dec. 9, 2020), for the assertion that such a list is protected by the attorney-client
privilege. ECF 65, pp. 11-12. The Court does not read Utesch for that holding, but is
otherwise not persuaded by it, since a list of names is not a communication. Utesch,
2020 WL 7260775, at *4 (“The attorney-client privilege protects: (1) a communication
(2) made between privileged persons (3) in confidence (4) for the purpose of obtaining
or providing legal assistance for the client.” (cleaned up)).
4

While a close call, the Court finds that Gilead’s position on the motion was, in part,
“substantially justified,” and so it will not award Mr. Tucci its attorneys’ fees as part
of the motion.

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