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Judge Stark: Double Inadvertent Production Not Necessarily Waiver of Privilege

By Karen E. Keller, Andrew A. Lundgren et al.

On Wednesday, Judge Stark issued what looks to be his first order signed as a United States District Judge (at least the first to be posted to the Court's website): Allergan Inc. v. Barr Laboratories Inc., C.A. No. 09-333-SLR-LPS (D. Del Aug. 18, 2010).

The order deals with discovery and privilege issues. Plaintiff Allergan inadvertently produced a number of allegedly privileged documents, including scientific data and part of the invention record for a relevant patent. Some of the documents had already been inadvertently produced once before, and successfully recalled, in an earlier litigation against the same defendants.

Defendant Barr Laboratories apparently argued (its filings are under seal) that this double inadvertent disclosure constituted waiver or at least indicated a lack of adequate precautions to protect privileged information under the protective order. Allergan responded that "such mistakes are unfortunate, but not unheard of," and stated that the documents slipped by despite "exhaustive privilege screen procedures." See July 30, 2010 and Aug. 13, 2010 letters from Allergan to the Court.

The Court agreed with Allergan, holding that

Allergan has not waived the attorney-client privilege with respect to the documents at issue. Allergan had in place sufficient procedural protections to comply with its obligations to review materials for privilege prior to production. The amount of inadvertently produced privileged materials is minuscule in comparison with the size of Allergan's overall production.

Allergan, at 1. The Court did not specifically address the double-inadvertent-production argument.

As to the technical documents, Barr apparently sought access to the data contained within the documents on the grounds that it was not a privileged part of the communication. The Court rejected this request under an application of In re Spalding Sports Worldwide, Inc., 203 F.3d 800, 805 (Fed. Cir. 2000), which held that invention records and the technical information within them are privileged.

Full post as published by Delaware IP Law Blog on August 20, 2010 (boomark / email).