Merck Sharp & Dohme Accused Of Failing To Produce 1,800 Documents In Propecia Case
August 12, 2014
By Krystle Vermes, BioSpace.com Breaking News Staff
The drug maker Merck Sharp & Dohme Corp. is officially arguing a motion to compel the production of approximately 1,800 documents. It claims that an attorney-client or work-product privilege is premature.
Plaintiffs are arguing that over the course of four months, Merck has “not produced a single page it previously withheld because of a misapplied claim of privilege.” As the situation unfolds under New York law, the plaintiffs are claiming, “communications that were not written by attorneys nor sent to lawyers are not privileged.”
Merck’s privilege logs for communications are the issue at hand. The drug maker sought access to the logs with no apparent attorney involvement, or only with an attorney copied on a string of emails. The actions of marketing, information technology and electronic-discovery executives have reflected “serious misconduct” in the way that the documents have been handled, according to the plaintiffs.
“As discovery continues and more depositions are noticed, the urgency on this issue increases for the Plaintiffs,” the electronic court filing notes. “Documents to which the Plaintiffs are entitled must be produced immediately. Plaintiffs cannot afford to allow Merck to withhold documents that are clearly not entitled to privilege.”
Previous filings show that Merck’s email system deletes messages automatically after 127 days. However, items may be preserved according to a Merck employee’s action.
There are approximately 740 cases in the multidistrict litigation over the drug, Propecia, under U.S. Magistrate Judge Viktor Pohorelsky of the Eastern District of New York, according to the National Law Journal.
Merck claims that a review of all 1,800 documents would reveal the primary purpose of the actual communication. However, the plaintiffs believe that Merck has not gone through the files itself. As a result, the plaintiffs assume that reading through the 1,800 documents would yield no answers.
“Because Merck has asserted that each and every one of these documents will survive a challenge upon review, the Plaintiffs believe an in camera review of a limited selection of these documents would be appropriate,” the ECF continues. “Accordingly, the Plaintiffs would propose that 180 documents be selected by the Plaintiffs for submission to the Court for review.”
Merck is known for producing prescription medicines, vaccines, biologic therapies, and consumer care and animal health products. The company does business in 140 countries around the world.
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