Antitrust Law Daily Wrap Up, ANTITRUST—NDIll: Sanofi’s Subpoena of Documents Regarding Novartis’s Alleged Involvement in Antitrust Claims Not Modified, (Apr 22, 2013)

By Tobias J. Gillett, J.D., LL.M.

In an antitrust action brought by pediatricians charging that Sanofi Pasteur Inc. foreclosed its competitor Novartis Corporation from the market for various vaccines, Sanofi can obtain discovery of all documents that it claimed would reveal that Novartis had manufactured the antitrust claims, the federal district court in Chicago has ruled (Castro v. Sanofi Pasteur Inc., April 19, 2013, Tharp, J.). The court declined to modify Sanofi’s subpoena to exclude materials created after any other client retained Castro’s counsel to represent it in potential litigation against Sanofi, rather than just after Castro retained the counsel, or materials constituting opinion work product.

Adriana Castro and Sugartown Pediatrics had filed a lawsuit against Sanofi alleging that Sanofi foreclosed its competitor Novartis from the market for various pediatric vaccines. Sanofi issued a subpoena seeking production of documents it claimed would indicate that Novartis had fabricated the antitrust claim, with the assistance of the plaintiffs’ counsel Berger & Montague, PC (B & M) and Navigant Consulting, Inc., as a means of limiting price competition.

On April 9, 2013, the court denied the plaintiffs’ motion to quash the subpoena, concluding that documents created prior to the formation of an attorney-client relationship between Castro and B & M could not qualify for work product protection because they would not have been prepared in anticipation of litigation. The court ordered Sanofi to modify the subpoena to cover only documents created before Castro retained B & M. However, because Castro’s motion had not been properly noticed, the court permitted Castro to submit a motion for reconsideration.

In her motion, Castro first requested that the order be modified to preclude discovery of all documents created prior to any other client retaining B & M to represent them in potential litigation against Sanofi, not just Castro. B & M represented that Castro was not "the only client on whose behalf plaintiffs’ counsel was communicating with Navigant as part of its investigation of possible antitrust claims against Sanofi, nor was Berger & Montague the only firm involved in conducting the pre-suit investigation."

However, the court refused to grant this modification, concluding that Federal Rule of Civil Procedure 26(b)(3) applied only to parties to the litigation, and therefore the order could not be modified "to reflect the date that non-party clients retained B & M to investigate claims against Sanofi." The court observed that this was "arguably a problematic approach to application of the work product doctrine," because it potentially created a disincentive for the parties to resolve their differences without resorting to litigation, since otherwise potential work product materials would not be protected. However, the court observed that this "is the approach that the Supreme Court, and Congress, have taken."

Castro next asked the court to exclude "all opinion work product, including Plaintiffs’ counsel’s or Navigant consulting economists’ mental impressions regarding legal theories or economic analyses relating to the underlying litigation." Castro argued the material was (1) irrelevant and (2) protected by the work product doctrine. The court initially observed that the work product doctrine did not apply to materials not created in anticipation of litigation, and B & M had not yet been retained when the materials were created. Moreover, "the work product doctrine simply does not extend to an attorney’s communications about legal issues in a law suit that was only conceptual."

Furthermore, considering Sanofi’s claims regarding a conspiracy between Novartis, Navigant, and B & M, the "communications between B & M and Navigant prior to Castro’s retention of B & M [could] well be relevant to both the substance and credibility of Castro’s claims of foreclosure," and the district court had not limited Sanofi’s ability to conduct discovery on the conspiracy issue on the grounds of relevance. Moreover, Sanofi did not seek to "piggy back" off the work of B & M and Navigant, and therefore did not "implicate a core interest served by Rule 26(b)(3)." The materials reflected "the nature of the relationship and endeavor that B & M, Navigant, and Novartis were undertaking," and were not pure opinion materials, in the court’s view.

The case is No. 13 C 2086.

Attorneys: Scott Forrest Hessell (Sperling & Slater, PC) for Adriana M. Castro. Steven Ross Gilford (Proskauer Rose LLP) for Sanofi Pasteur Inc.

Companies: Sugartown Pediatrics, Inc.; Sanofi Pasteur Inc.

Cases: Antitrust IllinoisNews