Bayer must un-redact sales strategy for lawyers in Yaz litigation

By Steve Korris | Oct 1, 2010


EAST ST. LOUIS – Lawyers suing Bayer nationwide over oral contraceptives Yaz and Yasmin have persuaded Multi District Judge David Herndon to rewrite, in their favor, a privacy rule they negotiated with Bayer.

On Sept. 22, Herndon prohibited Bayer from redacting sales strategy information about similar contraceptives from documents it delivered to plaintiffs.

A previous order, resulting from negotiations, allowed Bayer to black out strategy information for drugs with the same ingredient, drospirenone.

Workers will have to search 33 million pages Bayer already produced to plaintiffs.

They will have to find each redaction and determine the reason for it.

If Bayer redacted a section relating to sales strategy for the other drugs, Bayer must "un-redact" it.

Herndon presides over more than 3,000 Yaz and Yasmin cases by appointment of the U.S. Judicial Panel on Multi District Litigation.

Plaintiffs allege the drugs caused wrongful deaths, strokes and other injuries.

On Aug. 9, Bayer moved for a protective order to keep plaintiffs from investigating Natazia, a contraceptive with a different active ingredient from Yaz and Yasmin.

On Aug. 20, lead plaintiff lawyer Roger Denton of St. Louis moved to amend a case management order that included redaction rules.

Denton filed the motion under seal, blocking public inspection.

He filed a brief opposing a protective order for Natazia on Sept. 9, under seal.

On Sept. 17, Bayer lawyer John Galvin of St. Louis opposed Denton's sealed motion.

Galvin filed his opposition brief under seal.

At a hearing on Sept. 21, Herndon asked why plaintiffs filed their motion under seal.

Bayer lawyer Adam Hoeflich of Chicago intercepted the question and suggested both sides could file redacted versions so there could be public record.

"Court requests that be done," according to minutes of the hearing.

Herndon didn't have to deal with the Natazia dispute, because plaintiff lawyer Michael London of New York said he withdrew his production request.

Herndon changed the redaction rule the next day, finding that information about other drugs could lead to discovery of admissible evidence.

"From the exhibits counsel demonstrated in open court, it was clear that the redaction complained of made the production virtually useless in too many instances," he wrote.

On Sept. 24, Galvin unsealed his opposition to the change Herndon already granted.

"To date, Bayer already has produced more than 33 million pages of documents and had anticipated producing 15 to 20 million more pages prior to plaintiffs' recent burdensome discovery requests," he wrote.

He wrote that plaintiffs apparently view discovery rules "as a method to extract pretrial punitive relief rather than to further the truth seeking function of litigation."

Redactions began on the seventh of 20 pages, with black bars covering most of a line and part of the next.

Bars covered two footnotes taking up half of page 11 and the first two lines of a footnote on page 12.

Bars covered almost half of pages 14 and 15.

Denton unsealed his motion to change the redaction rule on Sept. 30, two hours after the Record called Herndon's chambers to report that it wasn't available online.

On the fourth page Denton wrote, "Bayer seeks to," with white space following.

"Defendants, in an effort to gain FDA approval of," with white space following, Denton wrote.

On the fifth page he wrote, "Several documents recently uncovered by the plaintiff steering committee demonstrate Bayer's global integrated marketing plan for its entire drospirenone family of

Denton also wrote:

"For example," with white space following.

"As clearly evidenced by this document," with white space following.

A black bar covered the title of a Bayer slide presentation.

"But what is clear is Bayer's intention," with a bar following.

"It is clear that Bayer's," then a bar, "approach to its drospirenone family of drugs, and its specific," then a longer bar, "for as long as it can, makes discovery of all drospirenone
products, including the area of sales, marketing and marketing strategy, relevant to this litigation."

Herndon plans a status conference on Oct. 12.

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