## Facts

- Individuals who took the prescription drug Abilify (aripiprazole) sued Bristol-Myers Squibb Company and Otsuka America Pharmaceutical Inc., alleging injuries tied to impulse-control behaviors and inadequate warnings.
- During discovery in MDL No. 3:16-MDL-2734, defendants produced many documents but withheld others, claiming attorney-client privilege and/or work-product protection.
- Defendants served privilege logs listing withheld materials and providing information such as document identifiers, participants, dates, privilege type, and descriptions.
- Plaintiffs moved to compel production of documents listed on the privilege logs and raised three main objections: (1) the log descriptions were inadequate, (2) many items tagged as work product were not prepared in anticipation of litigation, and (3) many items tagged as attorney-client communications were not privileged.
- Defendants opposed the motion and submitted the challenged documents to the court for in camera review.
- The dispute concerned discovery only and did not resolve the merits of plaintiffs’ product-liability claims.

## Issues

1. Were defendants’ privilege-log descriptions sufficient to support withholding documents based on attorney-client privilege and/or work-product protection?
2. Did the documents withheld as work product qualify for protection under Federal Rule of Civil Procedure 26(b)(3) as materials prepared in anticipation of litigation (rather than as ordinary business records)?
3. Were the documents withheld as attorney-client privileged actually confidential communications for the purpose of seeking or providing legal advice (including communications involving in-house counsel), or were they primarily non-privileged business communications and/or waived by distribution?

## Decision

- The court granted plaintiffs’ motion to compel in part and denied it in part.
- After reviewing the privilege logs and conducting in camera review, the court ordered production of certain documents where defendants did not carry their burden to show privilege or work-product protection, including instances where descriptions and/or content did not show a legal purpose or litigation-related preparation.
- The court allowed defendants to continue withholding other documents where the materials reflected legal advice, attorney mental impressions, or litigation strategy, or otherwise met the requirements of attorney-client privilege or Rule 26(b)(3) work-product protection.
- The court’s document-by-document determinations were reflected in sealed exhibits attached to the order.

## Legal Principles

- The party asserting attorney-client privilege or work-product protection bears the burden of establishing that the protection applies.
- A privilege log must provide enough non-substantive information (such as author, recipients, date, privilege asserted, and a description) to permit evaluation of the claim without revealing the privileged content itself.
- Attorney-client privilege protects confidential communications between attorney and client made for the purpose of obtaining or providing legal advice; merely copying a lawyer does not make a communication privileged.
- Communications involving in-house counsel may be privileged when the main purpose is legal advice; business communications do not become privileged simply because counsel participated.
- Disclosure beyond those reasonably necessary to obtain or act on legal advice can defeat confidentiality and result in waiver.
- Work-product protection under Rule 26(b)(3) applies to documents and tangible things prepared in anticipation of litigation (or for trial) by or for a party or its representative; materials prepared in the ordinary course of business are not protected on that basis.
- Opinion work product (attorney mental impressions, conclusions, opinions, or legal theories) receives stronger protection than ordinary work product, and courts may protect those portions while requiring production of non-protected material where appropriate.
- In camera review is an accepted method for resolving disputes over privilege and work-product claims when log descriptions and party submissions do not resolve the question.

## Conclusion

In this MDL discovery order, the court reviewed defendants’ privilege logs and the withheld documents themselves and then granted the motion to compel in part and denied it in part, requiring production where privilege or work-product protection was not established while preserving protection for communications and materials reflecting confidential legal advice or litigation preparation.


In re Abilify (Aripiprazole) Products Liability Litigation, 2017 WL 6757558, No. 3:16-MDL-2734 (2017)