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It Can’t Be That Externally-Handled PR Materials Are Exempt, Merck

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. . . .


Additional ENHANCE Litigation “Stalling Tactics” — By New Merck?

I will have a few more of these — so do watch this space — but after spending six months trying to get Merck to voluntarily comply with Judge Cavanaugh’s orders, the plaintiffs have had to ask the able Judge to effectively force Merck’s compliance (11 page PDF):

. . . .Pursuant to the December 22, 2009 Pretrial Scheduling Order, Defendants were obligated to produce all of the 5.5 million documents that they had previously produced to various government agencies or to plaintiffs in a related litigation by no later than March 15, 2010. See Pretrial Scheduling Order ¶ IV(18)(1)-(2). Defendants failed to do so. Indeed, despite representing on two occasions that this production was complete, Defendants continued to include such documents in at least two subsequent productions, including as recently as June 2, 2010.

Furthermore, Defendants initially produced thousands of these previously produced documents with unjustifiable privilege redactions based on, inter alia, the vague explanation that the redactions were necessary to protect Schering’s and Merck’s “foreign business practices.” Although Plaintiffs raised this issue with Defendants on February 8, 2010, it was not until April 27, 2010 that Defendants re-produced thousands of these documents without the improper redactions. . . .

Request No. 3 – Expert Panel. Defendants have not said they will produce any documents about the Expert Panel from outside the Class Period. The Expert Panel was a group of five outside physicians who were convened by Schering in November 2007 to review the ENHANCE data for purported problems.

A central theory of Plaintiffs’ case is that Defendants had advance knowledge of the ENHANCE results and that the Expert Panel was convened to delay the release of the ENHANCE results. The Complaints allege that Defendants painted an unjustifiably negative picture of the ENHANCE data by, among other things, cherry-picking the worst data for Expert Panel members. In addition, while no minutes were taken at the Expert Panel meeting, Defendants later circulated a draft set of “minutes” that falsely imputed that the Expert Panel members had recommended changing the study’s endpoint, when in fact they had not done so. Thus, any discussions about the Expert Panel are almost certain to be relevant to our case, regardless of whether they took place before, during, or after the Class Period.

Request No. 4 – Dr. Michiel Bots. Defendants have not said they will produce any documents relating to Dr. Michiel L. Bots from outside the Class Period. As alleged in the Complaints, Dr. Bots was hired by Schering in January 2007 as an independent consultant to prepare a report concerning purported problems with the ENHANCE data, but Dr. Bots concluded that same month that the ENHANCE data was “fine.”

Nevertheless, Defendants failed to release the ENHANCE results until fourteen months later. Dr. Bots was later a member of the Expert Panel. A central allegation in the Complaints is that Defendants had knowledge that Dr. Bots concluded the ENHANCE results were “fine” in January 2007, but nevertheless convened the Expert Panel and continued to delay the release of the ENHANCE results for over a year. Any discussions about Dr. Bots are almost certain to be relevant to our case, regardless of whether they took place before, during, or after the Class Period. . . .

More later this morning — and, on CafePharma postings, too!