I think this will round out my current series of posts on Merck’s allegedly dilatory production tactics. On this coming Monday, July 19, 2010, Merck is due to answer — and explain itself, before Judge Cavanaugh. I’ll cover that, but here is the last installment — for now:
. . . .[New Merck and legacy Schering-Plough] have made numerous erroneous privilege claims. Defendants’ privilege log reveals that Defendants have withheld from production numerous documents that were distributed to third party public relations consultants. And it remains unclear whether any additional documents were disclosed to Schering’s or Merck’s outside auditors or other third parties. . . .
Defendants have withheld on privilege grounds an unspecified number of documents that were previously disclosed to the Companies’ outside public relations firms. Although Defendants have the burden of establishing the asserted privileges, they have failed to make a showing that the documents they disclosed to outside public relations firms remain privileged. Plaintiffs also inquired on April 22, 2010 and May 7, 2010 whether any of the documents listed on the privilege log were previously produced, provided to, or were otherwise made available to the Companies’ outside auditors, expert panel members or other third parties. To the extent such documents were produced to such third parties, the documents are no longer privileged. . . . Although Plaintiffs first raised this issue approximately three months ago, it is our understanding that Defendants are still “looking into” this inquiry.
Plaintiffs respectfully request that the Court order Defendants to conduct an affirmative investigation into whether any of the logged documents were disclosed to the government, auditors, expert panel members or other third parties, and to complete that investigation by no later than July 30, 2010. To the extent any of the logged documents were disclosed to such parties, Defendants should produce them immediately. . . .