In Tucci v. Gilead Sciences, Inc., No. 2:21-CV-1859-NR (W.D. Pa. May 22, 2023), Pennsylvania District Judge Jagan N. Ranjan granted the plaintiff’s motion to compel defendant to respond to discovery requests and provide materials from two internal investigation files, finding that defendant’s “categorical assertion of privilege over a relatively small universe of documents to be improper.”

Case Discussion

In this case involving claims of wrongful termination for reporting potentially unlawful conduct by the plaintiff’s managers, the plaintiff filed a motion to compel the defendant to respond to discovery requests and provide materials from two internal defendant investigation files: one related to plaintiff’s complaints about improper business conduct (the August 2018 investigation) and the other related to plaintiff’s complaints about retaliation against him (the December 2018 investigation). The plaintiff claimed that these files contained relevant, non-privileged materials, but that defendant asserted a blanket privilege over them and provided an inadequate privilege log. Defendant withdrew its claim of privilege for the December 2018 investigation but maintained that the materials in the August 2018 investigation file were not relevant to Mr. Tucci’s claims and were otherwise protected by the attorney-client privilege and work-product doctrine.

Judge’s Ruling

Considering relevance first, Judge Ranjan stated: “Mr. Tucci is entitled to discovery that is relevant, non-privileged, and proportional to the needs of the case…The Court begins with relevance, but some background is in order. The second amended complaint alleges that Mr. Tucci reported misconduct to Gilead’s legal department in August 2018, and that Gilead’s legal department launched an investigation into this misconduct…As part of that report, Mr. Tucci provided Gilead’s legal department the names of his supervisors who he alleged were involved, including Harry Durr and Brian Vautier…Mr. Tucci alleges that he was retaliated thereafter by these supervisors, including through unjustifiably negative performance reviews.”

Continuing, Judge Ranjan stated: “Based on this, the Court finds that the August 2018 investigation and associated file documents are clearly relevant. Those documents can go to pretext, which is part of a plaintiff’s prima facie whistleblower claim…For example, if Gilead discovered that Mr. Tucci’s report was meritorious, it might have provided a motive to retaliate. Also, if Gilead conveyed certain information to Mr. Tucci’s supervisors as part of this investigation (which can be plausibly inferred from the second amended complaint…, Mr. Tucci could connect some of the causal dots between his report and their mistreatment of him. That, in turn, could cast doubt on the performance-based reasons for Mr. Tucci’s termination. Thus, the August 2018 investigation and related file are relevant.”

Considering the categorical assertion of privilege claim by the defendant, Judge Ranjan stated: “Taking Gilead’s in-house counsel at her word, the August 2018 report was prepared by in-house counsel to provide advice to the company…This is clearly protected from disclosure by the attorney-client privilege and work-product doctrine… The investigative file, though, requires a more nuanced analysis…Because Gilead invokes both protections over the August 2018 investigation materials, it must show either that the contents are communications made from client to counsel or counsel to client in confidence and for the purpose of obtaining legal advice, or that the contents were prepared in anticipation of litigation and not in the ordinary course of business…It has done neither. Instead, it asserts a blanket privilege over the entire investigation file simply because the materials underly the investigation.”

Continuing, Judge Ranjan said: “That argument misses the mark because it stretches the privilege too wide. The law is clear that ‘[w]hat are protected in most instances . . . are the communications themselves. Documents sent to or prepared by counsel incorporating such information for the purpose of obtaining or giving legal advice, planning trial strategy, etc. are protected from compelled disclosure.’… But ‘[a] party may not refuse to disclose facts simply because that information came from a lawyer.’… In fact, both the attorney-client privilege and work-product doctrine carve out discovery of purely factual material from documents that might otherwise receive privilege protection… Similarly, the mere fact that counsel reviewed material as part of an investigation conducted for the purpose of providing legal advice does not of itself subject that material to protection.”

Summarizing his ruling which disallowed the categorical assertion of privilege claim by the defendant, Judge Ranjan stated: “In sum, Gilead cannot invoke a blanket privilege over the investigation file, and must produce responsive non-privileged documents from the file, or otherwise provide a log that identifies, by document, which specific documents are being withheld and the basis for withholding them… Additionally, to the extent that the log (or answers to Mr. Tucci’s discovery requests) reveals the identities of individuals who were interviewed or gave witness statements as part of the investigation, that information is not protected and must be logged or produced… even if the identities of interviewees were covered by the work-product doctrine, the Court finds that there is a “substantial need” to produce this information, triggering an exception to the doctrine…That is because knowledge of the investigation by certain individuals at the company—specifically, Mr. Dunn and Mr. Vautier—is of critical relevance, given that the claim here is that Mr. Tucci was retaliated against for reporting misconduct to the legal department, and communications about the investigation may be evidence that Mr. Tucci’s supervisors knew of his report.”

So, what do you think? Does your organization use categorical privilege logs? Please share any comments you might have or if you’d like to know more about a particular topic.

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