In re ACTOS Antitrust Litigation

Background

This antitrust class action concerns Plaintiffs’ allegation that Takeda prevented competitors from timely marketing a generic version of the diabetes drug ACTOS by falsely describing two patents to the Food and Drug Administration. Takeda expressly waived privilege concerning the applicability of pre-2003 regulations governing the submission of patent information to the agency and Takeda’s compliance with those regulations.

The dispute involved a document bearing the Bates number TAK-ACTOS-000264349, which appeared to be an agenda for a January 2009 meeting. Takeda produced the agenda to Plaintiffs in April 2022. The agenda was later found in the custodial files of Takeda’s former in-house counsel, George Kokkines. A separate document concerning the same meeting had been the subject of an earlier privilege dispute, which the court decided hours before Kokkines’s deposition.

During the August 1, 2023 deposition, Plaintiffs’ counsel identified the agenda as coming from Kokkines’s custodial file, read part of it into the record, and questioned Kokkines about it. Kokkines testified that the agenda refreshed his recollection about the meeting’s purpose. Eight days later, Takeda asserted that the agenda had been inadvertently disclosed, sought to claw it back, and provided a partly redacted replacement. The parties could not resolve the dispute, so Plaintiffs filed a letter motion.

Legal standard

The party asserting attorney-client privilege bears the burden of establishing the privilege and showing that it was not waived. Federal Rule of Evidence 502(b) provides that an inadvertent disclosure does not waive privilege if the disclosure was inadvertent, the privilege holder took reasonable steps to prevent it, and the privilege holder promptly took reasonable steps to correct the error.

The court explained that the relevant period for determining promptness begins when the producing party realizes that privileged material was disclosed. The producing party must respond to obvious indications that protected material was produced accidentally. The parties’ protective order stated that inadvertent production, by itself, would not waive privilege.

Court’s analysis

The court found that Plaintiffs’ use of the agenda during the deposition was an obvious indication that protected material had been produced accidentally. The court relied on the fact that Kokkines had been Takeda’s in-house counsel, Plaintiffs’ counsel stated on the record that the agenda came from Kokkines’s custodial file, a privilege dispute involving a document about the same meeting had just been decided, and Plaintiffs’ counsel read portions of the agenda into the record.

Takeda did not assert privilege during the deposition and did not seek to claw back the agenda within a day or two. Instead, it waited eight days. The court held that Takeda therefore failed to take reasonably prompt steps to correct the disclosure, as required by Rule 502(b)(3), and that any privilege associated with the agenda had been waived.

The court declined to adopt Plaintiffs’ proposed bright-line rule that failing to object to the use of a privileged document during a deposition always waives privilege. It nevertheless found that the circumstances here supported waiver. The court also rejected Takeda’s reliance on the protective order because that order provided only that inadvertent production would not, by itself, constitute waiver; the waiver here resulted from Takeda’s failure to act promptly after the agenda’s use at the deposition.

Disposition

Judge Stewart D. Aaron found that Takeda was not entitled to claw back the agenda. The opinion does not state that the court separately ruled on any other motion or claim.