Herndon grants confidentiality to Bayer in Yaz document dispute

Steve Korris Jun. 23, 2011, 12:00pm


EAST ST. LOUIS – U.S. District Judge David Herndon found drug maker Bayer perfectly honest in pleading for privacy of 158 documents he read secretly.

"The Court did not find a single instance where Bayer misrepresented the content of our circumstances relating to the disputed communications," he wrote on June 17.

He granted confidentiality to 145 documents plaintiff lawyers claimed they needed to pursue claims that Bayer contraceptives injured women.

He wrote that 13 documents might have lost their confidentiality, and he set a July 1 deadline for Bayer to identify and produce any that did.

Herndon received the documents on May 23, and read them in his chambers.

Plaintiffs wanted drafts of documents, but Herndon declared them protected.

"Further, the Court will not require the production of a draft document or a redacted draft document simply because a portion of the draft was later included in a publicly released final draft," he wrote.

"The Court agrees with Bayer; doing so would effectively reveal the attorney's legal advice," he wrote.

He agreed with Bayer that communication is privileged if it is designed to meet a predominantly legal problem.

"Similarly, the fact that no lawyers are copied on a communication does not negate or minimize its privileged status provided the primary purpose and content of the
communication is legal in nature," Herndon wrote.

He agreed with Bayer that subject matter of communication doesn't negate or diminish its privilege.

"The key question is whether the communication involves the attorney acting within his or her professional capacity," Herndon wrote.

"Moreover, as noted by Bayer, legal advice is often necessary to ensure compliance with statutory and regulatory requirements applicable to the marketing of prescription drugs."

Herndon plans to hold bellwether trials next year on claims that Yaz, Yasmin and Ocella injured gall bladders and damaged blood vessels.

Bellwether trials provide a range of judgments to shape class settlements.

Herndon presides over suits from federal courts around the nation by appointment of the U.S. Judicial Panel on Multi District Litigation.

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