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Bracco Diagnostics, Inc. v. Amersham Health Inc.

October 16, 2006

BRACCO DIAGNOSTICS, INC., PLAINTIFF,
v.
AMERSHAM HEALTH INC., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Bongiovanni, Magistrate Judge

OPINION and ORDER ON INFORMAL MOTION

This matter comes before the Court upon informal motion of Plaintiff Bracco Diagnostics, Inc. (hereinafter "Bracco") to compel production of 1) documents concerning a sales and marketing audit performed by a third party and 2) communications between Defendants Amersham Health Inc., et al., (hereinafter "Amersham") and its expert. The documents in dispute have been provided to the court for in camera review. No oral argument was held pursuant to Fed. R. Civ. P. 78. For the foregoing reasons, Bracco's Motion to Compel production of documents concerning a sales and marketing audit performed by a third party shall be DENIED and the Motion to Compel production of communications between Amersham and its expert shall be DENIED.

I. BACKGROUND

The facts and procedural history of this matter are extensive and will not be repeated here at length. Presently before the Court is a Motion by Bracco to compel production of a sales and marketing audit performed by PricewaterhouseCoopers for Amersham (hereinafter "PWC report"). Amersham asserts that PriceWaterhouseCoopers was hired on behalf of Amersham's in-house counsel, to conduct "a review or assessment of certain of Amersham's sales and marketing practices [as] part of a compliance program designed to ensure that Amersham's practices were in accordance with the many law and regulations that concern the marketing and sales of prescription pharmaceuticals." Declaration of Jeffrey Freedman in Opposition to Bracco's Motion to Compel (hereinafter "Decl. of Jeffrey Freedman") at ¶ 3. Bracco claims that this audit did not concern or contain legal advice, privileged information, trial preparation information or information otherwise immune from discovery. July 19, 2006 Letter Brief in Support of Bracco's Informal Motion to Compel (hereinafter "Moving Brief") at 2. However, in their August 3, 2006 Reply Letter Brief in Further Support of Bracco's Informal Motion to Compel (hereinafter "Reply Brief"), Bracco stipulated that the "real purposes of this analysis were ... to meet government regulatory requirements ..." Reply Brief at 6.

Amersham claims that the PWC report is protected by the attorney client privilege, the work product immunity doctrine, and the self critical analysis privilege. See Amersham's July 28, 2006 Letter Brief in Opposition to Bracco's Informal Motion to Compel (hereinafter "Opposition Brief"). Bracco claims that none of these protections apply and the PWC report should be produced.

Bracco also moves for the production of "communications with Amersham's testifying expert." Moving Brief at 1. Amersham claims that the communication was between its expert, Dr. Schmid, and litigation counsel, and is therefore protected under the work product immunity doctrine. Opposition Brief at 5. Bracco asserts that the work product immunity doctrine is wholly inapplicable. Reply Brief at 7-8.

The PWC report and subject communication from Dr. Schmid to litigation counsel were submitted to the Court for in camera review.

II. ANALYSIS

Federal Rule of Civil Procedure 26(b)(1) governs the scope of discovery in federal courts and provides that "[p]arties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action . . . ." Thus, Rule 26(b)(1) has been interpreted quite liberally, providing "a broad vista for discovery [which would] . . . 'encompass any matter that reasonably bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case.'" Tele-Radio Sys. Ltd. v. DeForest Elec., Inc., 92 F.R.D. 371, 375 (D.N.J. 1981) (citing Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978)). While not defined in the Rules, "privileged" is "generally understood to refer to those evidentiary privileges applicable at trial." Robinson v. Magovern, 83 F.R.D. 79, 84 (W.D. Pa. 1979); see also Martin v. Lamb, 122 F.R.D. 143, 145 (W.D.N.Y. 1988). Federal Rule of Evidence 501 sets forth the general rule with respect to the application of privileges in both federal question and diversity cases. It provides:

Except as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority, the privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in light of reason and experience. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the privilege of a witness, person, government, State, or political subdivision thereof shall be determined in accordance with state law.

Hence, except in those situations governed by the second sentence of Rule 501, federal privilege law generally applies to federal question cases. See Gannet v. First Nat'l State Bank of New Jersey, 546 F.2d 1072, 1076 (3d Cir. 1976), cert. denied, 431 U.S. 954 (1977). In federal questions cases that include pendant state law claims, "the federal rule favoring admissibility, rather than any state law privilege, is the controlling rule." Wm. T. Thompson Co. v. General Nutrition Corp., 671 F.2d 100, 104 (3d Cir. 1982); Wei v. Bodner, 127 F.R.D. 91, 94 (D.N.J. 1989); see also Hancock v. Hobbs, 967 F.2d 462, 466-67 (11th Cir. 1992). The Court also notes that neither party disputes that federal common law controls the allegations of privilege applicable here.

A. Production of the PWC Report

Amersham claims that the PWC report is protected by the self critical analysis privilege, attorney client privilege, and work product immunity. Because the Court has determined that the PWC report is protected under the self critical analysis privilege, the Court will not address Amersham's assertions of attorney client privilege and work product immunity. i. Self Critical Analysis Privilege

The self critical analysis privilege, or self evaluative privilege, has been recognized in a broad variety of cases in this District, in which the privilege is "essential to the free flow of information and ... the free flow of information is essential to promote recognized public interests." Harding v. Dana Trans., Inc., 914 F. Supp. 1084 (D.N.J. 1996)(citing Note, The Privilege of Self-Critical Analysis, 96 HARV. L. REV. 1083, 1087 (1983)). The privilege originated in Bredice v. Doctors Hospital, Inc., and was created to foster self-evaluation and the benefits derived therefrom. 50 F.R.D. 249, 250 (D.D.C. 1970), aff'd 479 F.2d 920 (D.C. Cir. 1973). The Bredice court recognized that "[c]andid and conscientious evaluation of clinical practices is a sine qua non of adequate hospital care...," and that "constructive professional criticism cannot occur in an atmosphere of apprehension that one doctor's suggestion will be used as a denunciation of a ...


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