PHILADELPHIA, Dec 10, 2009 /PRNewswire via COMTEX/ -- In a decision of
importance to the case at hand and all cases involving claims of attorney-client
or work product privilege, the Honorable Cynthia M. Rufe of the United States
District Court for the Eastern District of Pennsylvania, in a decision of
December 7, 2009, has ruled that GlaxoSmithKline (GSK), the manufacturer of the
prescription diabetes medication Avandia, must produce dozens of documents that
it withheld on claims of privilege.
The lawsuit alleges that GSK failed to warn consumers about the risks of
Avandia, including that of heart attacks. The case has been assigned by the
Panel on Multidistrict Litigation to Judge Rufe.
Judge Rufe's ruling comes on an appeal by GSK of a ruling by Special Discovery
Master Jerome J. Shestack, Esquire.
Judge Rufe's opinion first outlines several overarching principles on the
attorney-client privilege under Pennsylvania law and the federal work product
doctrine, and then addresses the particular documents in question.
Her opinion notes, for example, that the "attorney-client privilege does not
shield documents merely because they were transferred or routed through an
attorney," and that "documents prepared by a corporation as part of efforts to
ensure compliance with federal regulatory agencies or maintain a positive public
image for its products, and not because of possible litigation, are not
protected by [the] work-product doctrine."
Importantly, Judge Rufe rejects one of GSK's principal arguments: its
interpretation of the "primary purpose" requirement of the attorney- client
privilege. Pennsylvania law provides that in order to come within that
privilege, the primary purpose of a document must be to secure or give legal
advice. The documents in question included ones sent to a group of persons, only
one (or more) of whom was an attorney. GSK argued that in determining whether
the "primary purpose" requirement was met for those documents, the inquiry
should be only to the purpose of sending the document to the attorney(s), rather
than the primary purpose of the document as a whole. Judge Rufe finds that this
interpretation has "no support" in cases applying Pennsylvania law, including
the lead case on which GSK relied, Ford Motor Co. v. Kelly, 110 F.3d 954 (3d
Cir. 1997), and that this interpretation is "inconsistent with the requirement
that privileges must be narrowly construed."
Joseph F. Roda of RodaNast, P.C., Lancaster, PA, briefed and argued the motions
on behalf of the plaintiffs. He was assisted by Jennifer S. Snyder, also of
RodaNast, P.C. Lead Counsel for the plaintiffs are Vance Andrus of Andrus
Boudreaux, PLC, Denver, CO; Bryan Aylstock of Aylstock, Witkin, Kreis &
Overholtz, Pensacola, FL; and W. Mark Lanier of The Lanier Law Firm, PLLC,
Houston, TX.
SOURCE RodaNast, P.C.
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