In the case In re Bard Implanted Port Catheter Prods. Liab. Litig., MDL No. 3081 (D. Ariz. Jan. 17, 2025), Arizona District Judge David G. Campbell addressed “the possibility that responsive nonprivileged documents have been withheld from production because they were attached to a privileged communication and were not found elsewhere in Defendants’ possession”, by stating: “Such documents should be produced.”

Case Discussion and Judge’s Ruling

In this multi-district litigation related to the defendant’s port catheter device, Judge Campbell held a Case Management Conference with the parties on January 16, 2025.

One of the issues discussed was that the plaintiffs contended that the defendants took an incorrect position on when the attorney-client privilege applies to attachments to privileged communications and asked the Court to order the defendants to conduct further reviews of all attachments withheld as privileged. The defendants contended that they had not taken an incorrect position, that no further review of attachments was required and that this issue was untimely under Case Management Order (CMO) 19.

In response, Judge Campbell stated:

“The Court concludes that when (1) a nonprivileged document (2) is responsive to Plaintiffs’ document request and (3) is attached to a privileged communication, the document must be produced to Plaintiffs (without the privileged communication), even if the only location where the document is found in Defendants’ possession is as an attachment to the privileged communication…Defense counsel seemed to agree with this conclusion during the conference, and also stated that when nonprivileged responsive documents were found attached to privileged documents during Defendants’ review of documents in this case, they were withheld from disclosure with the privileged communication and identified in Defendants’ privilege log, but Defendants did not check to see whether the nonprivileged attachments had been produced elsewhere to Plaintiffs. Defense counsel argued that further review of the withheld attachments is not warranted because when Defendants, as a result of conferrals with Plaintiffs, checked 39 of such attachments, it found that all 39 had been produced to Plaintiffs elsewhere. Defense counsel argued that this sample set shows that nonprivileged documents have not been withheld from production.”

In response, Judge Campbell added: “The Court does not find that Defendants failed to act in good faith in reviewing documents and compiling their privilege log, but the discussion described above clearly reveals the possibility that responsive nonprivileged documents have been withheld from production because they were attached to a privileged communication and were not found elsewhere in Defendants’ possession. Such documents should be produced. The Court cannot conclude that a sample set of 39 is sufficient assurance that some responsive documents have not been withheld. As a result, Defendants’ will be required to review all documents attached to privileged communications to determine if they are responsive, nonprivileged, and have not been produced elsewhere to Plaintiffs.”

Regarding defendants’ contention that the issue was untimely under CMO 19, Judge Campbell stated: “It is true that Plaintiffs did not raise this issue within 70 days of the privilege logs’ production as required by CMO 19, but the CMO provides that challenges may be brought later if there is good cause to conclude they could not have been made earlier…The Court finds good cause. Defendants’ practice of not checking to ensure that responsive, nonprivileged attachments had been produced elsewhere was only recently made clear. Defendants shall complete their review of attachments and produce any previously undisclosed responsive and nonprivileged documents by January 31, 2025.”

So, what do you think? Are you surprised that the Court ruled responsive nonprivileged documents attached to a privileged communication must be produced and that defendants must check to ensure they were? Please share any comments you might have or if you’d like to know more about a particular topic.

Hat tip to Chad Roberts for the heads up on this case ruling!

Case opinion link courtesy of eDiscovery Assistant, an Affinity partner of eDiscovery Today.

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