Note: This is an unpublished decision. Check your jurisdiction’s rules about citing unpublished decisions before citing this case to a court.
Superior Court of Connecticut, Judicial District of Stamford-Norwalk
September 07, 2005
John L. Altieri Jr., Paul R. Koepff (Phv), Ralph P. DeSanto (Phv), Stephanie Lloyd Brill (Phv), Janice D. Kubow (Phv), Kristen D. Perkins (Phv), Dorothy Anne Presley (Phv), O'Melveny & Myers, LLP, New York, NY, Bruce R. Meckler (Phv), Eric D. Stubenvoll (Phv), Mari Henry Leigh (Phv), Meckler Bulger & Tilson, Chicago, IL, Shipman & Goodwin, LLP, Stamford, CT, for Steadfast Insurance Co.
Paul E. Breene (Phv), Ann V. Kramer (Phv), John H. Doyle (Phv), Steven J. Pudell (Phv), Brian T. Valery (Phv), Jean Farrell (Phv), Anderson Kill & Olick, P.C., New York, NY, Fogarty Cohen Selby & Nemiroff LLC, Greenwich, CT, for Purdue Frederick Co., Purdur Pharma L.P., Purdue Pharma Inc., Purdue Pharmaceuticals L.P., The P.F. Laboratories, Inc., PRA Holdings, Inc.
Ryan, Ryan, Johnson & Deluca LLP, Stamford, Louis R. Pepe, Pepe & Hazard, LLP, Hartford, CT, for American International Specialty Lines Insurance Co.
Lustig & Brown LLP, Stamford, Christine L. Nici (Phv), Smith, Stratton, Wise, Heher & Brennan, Princeton, NJ, for Gulf Underwriters Insurance Co.
Rucci Burnham Carta Carello & Reill, Darien, for Abbott Laboratories Inc.
*1 In this insurance coverage dispute the defendant The Purdue Frederick Co. (Purdue) seeks the return of an allegedly privileged document claimed to have been inadvertently produced during discovery to the plaintiff Steadfast Insurance Co. (Steadfast). Purdue contends that an agreement made with Steadfast, called the Amended Stipulation and Protective Order dated May 15, 2002 and “so ordered” by the Superior Court (Hodgson, J.) on that date (Agreement) provides that the “[i]nadvertent production” of documents subject to a privilege protecting information from discovery “shall not constitute a waiver of the immunity or privilege, provided that the producing party shall promptly notify the receiving party in writing of such inadvertent production” (Docket Entry N. 152.10, Section VIII, 1).
The document in question is a series of e-mail messages and was produced by Purdue in 2004. The e-mail document was filed and served a little more than nine months later on all parties by Steadfast as an exhibit to an affidavit opposing a motion for partial summary judgment. Two days after the filing Purdue gave written notice of the inadvertent production.
Steadfast opposes the motion on several grounds. First it asserts that Purdue failed to “meet and confer” pursuant to Practice Book § 13-10(c) before filing its motion. Second, it is claimed the e-mails are not protected by the attorney-client privilege or work product doctrine. Third, Steadfast argues that Purdue has waived the benefits of the privilege or doctrine by knowingly or intentionally producing the document and, lastly, Purdue did not give the reasonably prompt notice of the allegedly inadvertent production.
Purdue contends that this is not a discovery dispute and not subject to the requirements of Practice Book § 13-10(c) because it involves enforcement of a “so-ordered” agreement between the parties. The court agrees with this position to the extent that Section 13-10(c) applies to objections to request to produce, and this dispute, while similar, does not fall within that category. The court declines the invitation to deny the motion on that ground.
Steadfast contends that the e-mails are not protected by the attorney-client privilege or the attorney work product doctrine. Purdue responds that the proper means to make that argument, under the Agreement, is to return the document and then move to compel its production, and furthermore, that the document is protected by the attorney-client privilege and the work product doctrine. The court chooses to address the substantive rather than the procedural issue.
The e-mails were communications between Deborah Guider, in-house counsel at Purdue, Stuart Baker, an officer of Purdue and a partner of Chadbourne & Parke, co-national counsel to Purdue defending a large number of lawsuits involving Purdue's pharmaceutical product, OxyContin (OxyContin litigations) Howard Udell, Purdue general counsel, Richard Silbert, Purdue associate general counsel, Randy Paar a partner with the law firm of Dickstein Shapiro representing Purdue in the insurance coverage litigation, Eugene Anderson a partner of Anderson, Kill & Olick, also representing Purdue in the coverage litigation, Donald Strauber a partner of Chadbourne & Parke, Chilton Varner a partner of King & Spaulding co-national counsel representing Purdue in the OxyContin litigations, and Edward Mahony and Michael Suffredini, respectively chief financial officer and risk management officer of Purdue. The subject of these communications was how to present information involving the OxyContin litigations to representatives of Purdue's insurance. There were questions asked of coverage counsel and information imparted to all counsel. In this court's view, the document is mostly privileged and entirely protected under the work product doctrine.
*2 Steadfast next contends that Purdue has waived the protections to this document on several grounds and asks the court to so find under the criteria set forth in Harp v. King, 266 Conn. 747, 835 A.2d 953 (2003). Alternatively, Steadfast points out that Purdue did not list the document on any privilege log, and in the intervening months since its production Purdue had already requested the return of certain documents produced at the same time as the e-mails without mentioning the e-mails. From these facts Steadfast posits that Purdue voluntarily and knowingly produced the document.
While there may be much to criticize about Purdue's procedures in response to document requests, it is only speculation that this e-mail string was produced knowingly, and the court cannot accept that conclusion on the record before it.
The court determines that this is not an appropriate case to analyze under the Hart v. King,
standard which requires “a detailed court inquiry” of the document production practices of the parties. In that case the Connecticut Supreme Court adopted a “middle of the road” standard for determining whether the attorney-client privilege had been waived. 226 Conn. at 768-69, 628 A.2d 1303. In this case, however, the parties agreed in Section VIII of the Agreement that legal privileges were not waived by inadvertent production and that protected information inadvertently produced should be returned and that while the receiving and returning party (Steadfast in this instance) could move to compel production of the returned document “the fact or circumstances of the inadvertent production could not be used as a ground for such an order. Agreement, Section VIII, 3. Since the Hart v. King
“middle of the road” standard requires an analysis of just such facts and circumstances the parties, in Section VIII, agreed to waive that standard and abide by the standard of inadvertence alone.
This agreement was approved by Judge Hodgson, and rightly so, since it is the result of experienced counsel being pro-active and seeking to streamline the process of what was correctly perceived to be a difficult and document intensive litigation. For instance, by all accounts Purdue has produced almost five million pages of documents to date.
Steadfast also contends that the e-mail stream should not be returned because Purdue did not make reasonably prompt notification as called for in Section VIII, 2 of the Agreement. Nine months and more elapsed between the production and the notification. However, less than two days passed between the time the document appeared in Steadfast's opposition papers and the time Purdue sent its request to return it. Without any evidence that Purdue knew about the production of the e-mails before they appeared in the opposition papers, the court concludes notification was reasonably prompt under the circumstances.
The above findings, however do not end the matter. Purdue's motion seeks, pursuant to the Agreement, Section VIII, 2 that the information contained in the e-mail be deleted from Steadfast's litigation support and other databases. Counsel for Steadfast has submitted an affidavit setting forth the difficulties of achieving that result after the information had been in its possession for nine months. See Affidavit of John Altieri, Jr., dated August 9, 2005. Therefore, the court will order the return of the document and the deletion of it, and the information contained therein from the databases and will order Purdue to pay the reasonable expenses of this endeavor. If the parties cannot agree on these expenses, they shall bring the disagreement to the court's attention for resolution with appropriate submissions.
Section VIII of the Agreement reads in full as follows:
VIII. Inadvertent Production of Privileged Material
1. Inadvertent production of documents subject to work-product immunity, the attorney-client privilege or other legal privilege protecting information from discovery shall not constitute a waiver of the immunity or privilege, provided that the producing party shall promptly notify the receiving party in writing of such inadvertent production.
2. If reasonably prompt notification is made, such inadvertently produced documents and all copies thereof, as well as all notes or other work product reflecting the contents of such materials, shall be returned to the producing party or destroyed, upon request of the producing party, and such returned or destroyed material shall be deleted from any litigation-support or other database. No use shall be made of such documents during depositions or at trial, nor shall they be disclosed to anyone who was not given access to them before the request to return or destroy.
3. The party returning such documents may move the Court for an order compelling production of the material, but such motion shall not assert the fact or circumstances of the inadvertent production as a ground for entering such an order.
End of Document.