*1 Special Discovery Master Lawrence F. Stengel has issued a Second Report and Recommendation (“Second R&R”) recommending that the Court compel discovery relating to a “Generic Drug Price Spike Working Group” (“PSWG”) formed in December 2014 by certain State Offices of Attorneys General (“OAGs”) as “a multi-state investigation into possible causes of generic drug price increases.”[1] The PSWG, for which 14 states joined the distribution list, “issued no subpoenas, interviewed no witnesses, and reviewed only public information.”[2] Plaintiff States identified materials on a privilege log relating to the PSWG. The R&R concluded that neither attorney-client privilege nor attorney work product shields the material in question from discovery. Plaintiff States have objected to the Second R&R, arguing that the withheld documents are shielded by attorney-client privilege, as attorney work product, as part of a common interest, and are presumptively confidential under Pretrial Order No. 95 (“PTO 95”). For the reasons set forth below, the Court will sustain the objections in part on the basis of attorney-work product, but not as to attorney-client privilege.

Attorney-Client Privilege

The Second R&R concluded that attorney-client privilege does not apply because there is no “legal advice or confidential information received from the client.”[3] Instead, the Second R&R determined that Plaintiff States admitted that the PSWG reviewed only public information.[4] Plaintiff States do not seek to protect public information, which already has been produced. Instead, Plaintiff States argue that attorney-client privilege attaches when the communication is made between privileged persons in confidence to obtain or provide legal assistance for the client.[5] In other words, Plaintiff States argue that intra-attorney communications within the OAGs are necessary to develop or render advice are protected by the privilege.[6] The Court does not understand the Second R&R to have determined that communications between an attorney general and the attorneys in her office inherently are unprotected by attorney-client privilege.[7] Such communications are protected where they contain confidential communications to secure legal advice or legal services.[8] However, Plaintiff States have not shown that communications among the OAGs of different states contained confidential information; instead, as the R&R determined, the PSWG was limited to the review of public information.[9] Because Plaintiff States have not shown that attorney-client privilege attaches, the R&R correctly concluded that the common-interest privilege did not apply.[10]

Attorney Work Product

*2 The Second R&R also concluded that the work-product doctrine does not apply. Analysis of attorney work product starts with Federal Rule of Civil Procedure 26(b)(3)(A), which “ordinarily” bars discovery of “documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent).”[11] Even if the material is attorney work product, it may be discovered if “the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.”[12] However, “[i]f the court orders discovery of those materials, it must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation.”[13]

“The doctrine of work-product immunity shelters the mental processes of the attorney, providing a privileged area within which he can analyze and prepare his client's case. A party claiming work-product immunity bears the burden of showing that the materials in question were prepared in the course of preparation for possible litigation.”[14] The Special Discovery Master rejected Plaintiff States' argument that the PSWG materials were created during the course of a multi-state investigation into generic drug price increases and that it was necessarily in anticipation of litigation.[15] Instead, the Special Discovery Master applied an objectively reasonable standard, asking whether there “existed an identifiable specific claim or impending litigation when the materials were prepared.”[16]

To be protected work product, “the primary motivating purpose behind the creation of the document [must be] to aid in possible future litigation.”[17] The Court must consider “whether in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation.”[18] The material need not have been prepared for a specific case, as “[t]he literal language of Rule 26(b)(3) requires that the material be prepared in anticipation of some litigation, not necessarily in anticipation of the particular litigation in which it is being sought.”[19] In the particular circumstances here, State Plaintiffs have shown that “the primary motivating purpose behind the creation of the document was to aid in possible future litigation.”[20] Therefore, State Plaintiffs have shown that the material is attorney work product.

Defendants argue that even if the material is attorney work product, that they have shown a substantial need for the material to establish their defense of the statute of limitations. The Court has previously held in the context of motions to dismiss that “Defendants have raised serious questions concerning the timeliness of at least some of the claims” and that “as a matter of law that Plaintiff States should have known the reason that the prices were set as they were.”[21] Defendants have not shown, however, that attorney work product is the only way in which they can obtain information to meet the objective standard of what Plaintiff States should have known. The materials that the PWSG reviewed, which are not protected, show what information Plaintiff States had at the time.[22] As Defendants failed to demonstrate a substantial need for the material that cannot be , the material is not discoverable.

*3 AND NOW, this 5th day of February 2024, it is hereby ORDERED that the objections to the Second Report and Recommendation of Special Discovery Master Lawrence Stengel are SUSTAINED in part and the Second Report and Recommendation is NOT APPROVED for the reasons set forth above.

It is further ORDERED that the unopposed Motions to Seal [MDL Doc. Nos. 2593 and 2671] are GRANTED, good cause having been shown and the sealed material limited to what is necessary.

It is so ORDERED.