Here almost eight years after Pharmacia was sold to Pfizer by Fred Hassan and Carrie Cox (background post), the earlier business decisions of Fred Hassan and Carrie Cox — (allegedly) delaying disclosure of pivotal Bextra® study results, and promoting Celebrex® off-label — whilst leading Pharmacia, are finally reaching the light of day, in the federal District courthouse in Newark, New Jersey. eight years — and two companies ago, now.
Just yesterday, the quite capable US Magistrate Toni J. Bongiovanni ordered lawyers for the defense to explain why they are claiming priviledge on a memo that went to “Distribution Groups” — quite often, a sign that it travelled beyond the confines of attorney client priviledge. In essence, she ruled as follows:
. . . .[T]he Court is concerned with the following privilege log entries: Document Nos. 28, 141 and 142. The Court notes that with respect to Document No. 28, Defendants have only identified the Addressee as “Distribution Groups.” Without more information concerning who makes up the “Distribution Groups” the Court cannot be certain that the claimed attorney-client and work product privileges have not been waived. This is true despite the fact that the document, which is an e-mail prepared by or at the direction of an attorney that pertains to Defendants’ litigation hold, would otherwise appear to appropriately have been marked as privileged. As such, Defendants are directed to provide the Court and Plaintiffs with additional information regarding the “Distribution Groups” no later than April 8, 2011.
Further, with respect to Document Nos. 141 and 142, the Court notes that Plaintiffs, in part, object to Defendants’ privilege claims because these documents were shared with a third party. The Court, however, does not currently have sufficient information to determine whether Document Nos. 141 and 142 were, in fact, shared with a third party and whether this distribution eviscerates Defendants’ claim of privilege. As a result, the Court instructs Plaintiffs’ to provide a more detailed argument regarding their objection based on the fact that these documents were distributed to a third party no later than April 8, 2011. The Court further instructs Defendants to respond to Plaintiffs’ letter no later than April 15, 2011. No additional briefing is permitted absent prior Court approval.
IT IS SO ORDERED.
/s/ Tonianne J. Bongiovanni
TONIANNE J. BONGIOVANNI
United States Magistrate Judge. . . .
We will keep an eye on this — as these same predicate facts were at issue in the DoJ criminal case that led to the largest criminal fine in US pharma’s history ($1.2 billion), last year (paid by Pfizer, on account of Hassan’s actions while at Pharmacia).