## Facts

- Multiple actions were consolidated in an MDL arising from an alleged criminal scheme to recover human tissue from corpses without proper consent and regulatory compliance.
- Plaintiffs included relatives of deceased donors (“family cases”) and recipients of processed tissue (“recipient cases”); this decision addressed discovery disputes in the family cases.
- Defendants included entities involved in tissue recovery, processing, distribution, and transplantation, as well as related participants (including funeral homes).
- A defendant previously sought summary judgment asserting good-faith immunity under New York’s Uniform Anatomical Gift Act; the court denied the motion as premature because discovery was needed on defendants’ knowledge and good faith regarding consent documentation.
- Plaintiffs moved to compel production of documents withheld as attorney–client privileged and/or work product; the court decided the motion on written submissions without oral argument.

## Issues

1. Whether defendants met their burden to establish attorney–client privilege for the withheld documents, including whether the communications were primarily for obtaining legal advice rather than business purposes.
2. Whether the work-product doctrine applied, including whether the materials were prepared in anticipation of litigation rather than in the ordinary course of business or compliance activity.
3. Whether any privilege protections were waived by disclosure to third parties, and whether any common-interest or joint-defense basis preserved confidentiality.
4. Whether disputed documents could be produced in whole or in part (including through redactions) where only portions were privileged.

## Decision

- The court granted the motion to compel in part and denied it in part.
- The court ordered production where privilege or work-product protection was not adequately supported, where the materials were predominantly factual/business in character, or where waiver defeated protection.
- The court permitted withholding (or protection through limited redactions) for communications and materials that qualified as attorney–client communications or protected attorney work product, particularly where legal strategy or mental impressions were implicated.

## Legal Principles

- Attorney–client privilege is construed narrowly and protects confidential attorney–client communications made for the purpose of securing legal advice; the party asserting the privilege bears the burden of proof.
- Communications that are primarily business or operational, even if involving attorneys, are not privileged absent a showing that their predominant purpose was legal advice.
- Work-product protection under Rule 26(b)(3) applies to materials prepared in anticipation of litigation and does not generally cover documents created in the ordinary course of business, including routine quality, compliance, or incident materials.
- Voluntary disclosure of privileged communications to third parties typically waives attorney–client privilege unless a valid common-interest/joint-defense relationship preserves confidentiality.
- Courts may require production of non-privileged factual material and may permit redaction or withholding only to the extent necessary to protect legitimately privileged content.

## Conclusion

The MDL court partially compelled production after applying strict standards for attorney–client privilege and work-product protection, rejecting overbroad claims and finding waiver where confidentiality was compromised, while preserving protection for genuine legal advice communications and attorney mental impressions.


In re Human Tissue Prods. Liab. Litig., 255 F.R.D. 151 (D.N.J. 2008)