Bayer's German lawyers could face criminal liability over document production in Yaz MDL, defense says

By Steve Korris | Jun 3, 2011


EAST ST. LOUIS – Drug maker Bayer will expose its German lawyers to criminal prosecution if it discloses their communications in litigation over oral contraceptives, according to Bayer's American lawyers.

On May 23, John Galvin of St. Louis asked U.S. District Judge David Herndon to preserve confidentiality of 23 documents about Bayer's activities in Germany.

"Under German civil procedure law, there is no pretrial discovery of documents, and there are only narrow exceptions to the rule that a party in civil litigation does not need to support its opponent in investigating facts or obtaining evidence," he wrote.

"One of the fundamental duties of a German attorney is the obligation of professional secrecy, which concerns every fact and circumstance which has become known to the attorney in the exercise of his or her profession, including correspondence with his or her clients," he wrote.

"Attorneys in Germany may face criminal liability for the unauthorized disclosure of communications with his or her clients in violation of the attorney's obligation of professional secrecy," he wrote.

He asked Herndon to preserve confidentiality of nine other documents under English law, one under Australian law, and one under Argentine law.

"It is firmly grounded in Argentine law that a lawyer is obliged to maintain the secrecy of
what his or her client has communicated to him or her and of what her or she has communicated back to the client," he wrote.

Herndon presides over thousands of suits from federal courts around the nation claiming contraceptives Yaz, Yasmin, and Ocella injured women.

Bayer has produced about three and a half million documents totaling more than 70 million pages.

It has withheld about 17,000 documents under attorney client privilege.

It asserted extra privilege for about half the documents as work product.

Lawyers on a plaintiff steering committee challenged confidentiality of 238.

Bayer produced 54 documents, and the committee withdrew 26 challenges.

Galvin wrote that he would provide a folder for each of the 158 documents still in dispute, under seal.

"Translations are on green paper," he wrote.

He wrote that for 13 documents where the basis for privilege might not be apparent, he would provide declarations under seal.

Anticipating an argument plaintiffs would file minutes later, he wrote that privilege extends to communications among others than lawyers.

Circulation of legal advice is appropriate and acceptable if necessary to apprise employees of developments within the scope of their responsibilities, he wrote.

"Privilege in the corporate context is not limited to top decision makers," he wrote.

Galvin urged Herndon to reject the committee's request for draft documents.

"Some of these documents were later finalized and released outside of the attorney client relationship; others never were made public and always remained within the company," he wrote.

Plaintiff liaison counsel Roger Denton of St. Louis answered that if a draft wasn't created in anticipation of litigation, it doesn't fall under work product protection.

"Draft documents may or may not be protected work product, depending on the purpose for which they were created," he wrote.

He urged Herndon to read all 158 documents in his chambers.

"Plaintiffs do not assert that communications among non lawyers can never be privileged, only that Bayer's privilege log entries do not satisfy its burden of establishing such a claim," he wrote.

He wrote that attorney client privilege "may be pierced where a legitimate need for the information sought is established, a showing of relevance and materiality is made, and it is demonstrated that the information could not be secured from any less intrusive source."

He wrote nothing about the 34 documents involving foreign activities.

Herndon plans a status conference on Wednesday, June 8.

He has set bellwether trials next year on gall bladder and circulatory injuries.

A bellwether trial can promote mass settlement by establishing a range of damages.

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