In Adams v. Medtronic, Inc., No. 4:19-cv-870-SDJ-KPJ (E.D. Tex. Jan. 23, 2024), Texas Magistrate Judge Kimberly C. Priest Johnson denied the defendants’ motion to claw back a disputed document, finding that while the document was confidential, it was not privileged under the work product doctrine, and the defendants couldn’t claw it back simply because they contended it was non-responsive.

Case Discussion

In this product liability case regarding a medical stapler, plaintiffs and defendants disagreed on the designation of a document produced during discovery and Defendants’ attempt to claw back the document from production. The Court issued an order scheduling a hearing regarding the discovery issue and directing the parties to file a joint letter brief detailing the discovery issue and including the Document for in camera review.

Defendants argued that the Document was (1) confidential and thus, subject to the Protective Order, and Plaintiffs did not follow the procedures detailed therein; (2) not responsive to discovery because the Court limited discovery to the “EEA (circular) stapler” at issue in this case; (3) not relevant because it concerned different products and a different operations facility than those at issue in this case; and (4) protected by work product privilege.

Plaintiffs responded that the Document is (1) not confidential and therefore, not subject to the Protective Order; (2) responsive to the case because it showed a systemwide failure in the company’s standard operating procedures to comply with regulations; (3) relevant to this case for the same reason as it was responsive—it shows a systemwide failure to comply with regulations; and (4) not protected by privilege because “simply collecting a document” does not entitle the document to be protected by work product privilege.

Judge’s Ruling

Judge Johnson began her analysis of the defendants’ motion to claw back the disputed document by stating: “After reviewing the Document in camera and discussing it with counsel at the hearing, there is no indication that the Document produced in this case is a publicly disclosed EIR…Some of the information in the Document could constitute trade secrets or other confidential information that is customarily kept private or closely held…Therefore, the Court will assume that the Document is confidential for the purpose of the present litigation. Thus, the Document is subject to the Protective Order…and the provisions contained therein regarding the disclosure and use of confidential information for purposes of preparation, trial, and appeal of this action.”

Next, she considered the defendants’ argument regarding the document being non-responsive and not relevant, stating: “Defendants first argue that they ‘properly clawed back the [Document] because it is not responsive or relevant.’…However, Defendants have not referenced any authority, nor has the Court found any authority, to support their proposition that responsiveness and relevance are proper bases upon which an inadvertently disclosed document can be clawed back…Further, the parties have not provided the Court with any agreement between the parties that expands the ability to claw back documents because of responsiveness or relevancy. Thus, Defendants’ first argument cannot support their attempt to claw back the Document.”

Judge Johnson also rejected the defendants’ argument to claw back the document on the basis of work-product privilege, stating: “The Document is a report prepared by the FDA…There is no indication that the Document was completed in anticipation of litigation; rather, as discussed above, EIRs are completed by the FDA at the close of an investigation of a regulated facility… There is nothing in the Document indicating that it contains legal theories, mental impression, notes, etc., of Defendants’ counsel, nor have Defendants made any argument to this effect. Nevertheless, Defendants argue that the Document is covered by work product privilege because ‘it was inadvertently produced based on counsel’s fact gathering process during the course of discovery.’”

Judge Johnson also rejected the defendants’ citation of Hickman v. Taylor (which proposed that it is necessary for counsel to be free from ‘undue and needless interference’ when preparing for litigation), stating: “The Hickman Court did not intend that any document collected in anticipation of litigation be protected from discovery by work product privilege. Rather, it is the lawyer’s strategy and legal theories as reflected in documents the lawyer deems relevant to collect that may be protected by the work product privilege… Therefore, Hickman does not support Defendants’ contention.”

In denying the defendants’ motion to claw back the disputed document, Judge Johnson also rejected defendants’ objection to Plaintiffs providing any documents marked confidential to their expert Dr. Jason Moore (who was a competitor of the defendants, stating: “Defendants have failed to demonstrate with particular and specific facts how the disclosure of the documents will result in significant harm…Moreover, as Plaintiffs argue, Dr. Moore has already accessed these documents in a different case and thus, has already learned of their contents…Because Dr. Moore has already learned the contents of the confidential documents in this litigation, the competitive harm, if any, is already done.”

So, what do you think? Are you surprised the defendants’ motion to claw back the disputed document was denied? Please share any comments you might have or if you’d like to know more about a particular topic.

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