Ina 42-page ruling yesterday, US District Court Judge Eldon Fallon decided the drugmaker must fork over some 30,000 documents containing about 500,000 pages of material, mostly e-mails and attachments. What's in them? We don't know yet. But it does sound tantalizing. And we'll know next month.
Merck fought this outcome tenaciously, citing attorney-client privilege. The drugmaker sought to protect a wide range of communications between legal, marketing, scientific and public relations employees on the grounds that pharma is a highly regulated industry and, therefore, most communications involve its legal department or has a legal implication.
A Special Master, who was appointed by Fallon to sort this out, didn't buy the argument: "While such an argument is intriguing because it would minimize the time and expense involved in both corporations asserting and documenting privilege claims and judges ruling upon those claims, the theory is unrealistic."
For his part, Fallon called the battle "a time consuming and expensive saga that has spiraled out of control." The cost to review a sample of 2,000-plus documents exceeded $400,000, which is to be split by Merck and plaintiffs' lawyers, and took three months. He gave Merck until Sept. 15 to turn over documents, based on three groupings, which can be seen in chart one, chart two and chart three.
Who knows what will turn up?
Hat tip to Legal Underground