Friday Afternoon Propecia® MDL Update: Order No. 3 Could Be Significant

First — the caveats: I wasn’t in the courtroom. And so, all I have to go on is this terse order. From the cold written record, there is no way to get the temperature of the judge.

Even so, were I representing Merck, I’d tread very lightly as to Number 3 below. If the judge were to decide that Merck had abused the privilege log process — to hide discoverable documents — and then in turn took the step listed. . . it would be unprecedented in major multinational pharmaceutical mass tort litigation in the US.

The order set forth in paragraph 3 is a clear shot across the bow type of warning. Merck’s counsel would be wise to be be very sure every document claimed as privileged truly is. . . because the judge is likely to take another look. And if he found on second look that another sampled one third or one quarter were improperly withheld — he’d almost certainly impose a harsh penalty on Merck. That penalty — waiver of all privilege — is something I cannot even imagine. It would be a nightmare for Kenilworth. So I expect far fewer shenanigans, going forward, here. From the order that resulted from the September 2, 2015 status call, then:

. . . .SCHEDULING AND RULINGS:

1. For reasons stated on the record the plaintiffs’ motion [Doc. No. 247] to compel the defendants to provide a Defendant’s Fact Sheet for all cases is denied.

2. For reasons stated on the record the plaintiffs’ motion [Doc. No. 248] and the defendants’ motion [Doc. No. 249] are both granted in part and denied in part. The
parties are to confer and provide a Practice and Procedure Order that reflects the court’s rulings by September 11, 2015.

3. As discussed, the defendants will review the documents listed in their privilege log in light of the court’s order [Doc. No. 242] within 30 days to determine whether revisions should be made and documents produced. Following that review and further production, the plaintiffs may again raise concerns and, if necessary, move for a further review of documents by the court. The court advised that a further determination by the court that an excessive number of documents have been designated privileged could lead the court to make a finding that the defendants have forfeited the privilege and order complete production of documents itemized on the log.

4. The next status conference will be held on November 10, 2015 at 2:00 p.m. . . .

Safe travels — one and all!

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