LeGrand v. Abbott Laboratories

Background

Condalisa LeGrand moved to compel Abbott Laboratories to produce 54 documents responsive to an amended request for production. Abbott withheld the documents based on a First Amendment privilege. The documents consisted of communications between Abbott and four industry groups and their members concerning draft comments, strategy, and possible legal arguments about a proposed product-labeling rule from the Food and Drug Administration, as well as communications about strategies concerning regulations, legislation, draft guidance, and proposed international guidelines.

Privilege and Waiver

The court declined to find that Abbott waived the First Amendment privilege by asserting it belatedly. The court relied on case law recognizing that a trial court has discretion not to find waiver of a constitutional privilege, particularly when the alleged waiver resulted from inaction rather than an affirmative act.

First Amendment Analysis

The court held that Abbott made a prima facie showing that producing the communications would chill associational rights. In other words, Abbott showed an initial basis for concluding that disclosure could discourage members of the industry groups from communicating candidly with one another about the subjects at issue. The court acknowledged that commercial speech receives less protection than political, religious, or literary speech, but stated that commercial speech still receives some protection and that the First Amendment applies to trade associations.

After Abbott made that initial showing, the burden shifted to LeGrand to demonstrate a sufficient need for the discovery to outweigh the potential infringement of First Amendment rights. LeGrand argued that communications preceding the groups’ final public comments might reveal the members’ genuine beliefs and understanding about the healthfulness of added sugar. The court found that this did not establish a sufficient need for the requested discovery. It reasoned that information shared externally about a company’s views would likely also appear, and likely in greater detail, in internal documents that did not implicate First Amendment rights. By contrast, the associational communications could reveal the groups’ strategic concerns, objectives, and lobbying efforts.

The court also addressed Abbott’s withdrawal of its privilege claim over 16 communications listed on an earlier privilege log. At the hearing, both sides agreed that those documents were non-substantive, primarily meeting invitations, and that Abbott had not produced substantive communications from that group of documents.

Disposition

The court sustained Abbott’s claim of First Amendment privilege and denied LeGrand’s motion to compel. The order did not state that the motion was denied with or without prejudice.