## Facts

- Thousands of actions concerning the prescription drug Vioxx (rofecoxib) were consolidated in a multidistrict litigation proceeding in the Eastern District of Louisiana.
- Merck & Co., Inc. researched, manufactured, marketed, and distributed Vioxx; the drug was FDA-approved in 1999 and withdrawn from the market in 2004 after trial data suggested increased cardiovascular risk.
- In MDL discovery, Merck produced over two million documents but withheld approximately 30,000 documents on attorney–client privilege grounds, largely internal emails and attachments.
- The privilege dispute became prolonged and expensive, and the court sought a workable method to adjudicate large volumes of contested privilege assertions.
- The court appointed Special Master Paul R. Rice under Federal Rule of Civil Procedure 53 to implement a representative sampling process for resolving Merck’s privilege claims.
- The matter before the court involved the Special Master’s report and recommendations regarding the sampling protocol and Merck’s sealed objections and partial motion to adopt the recommendations.

## Issues

1. Whether a Rule 53 special master’s representative sampling process for adjudicating large-scale corporate attorney–client privilege claims provides sufficient procedural protections and satisfies due process in an MDL.
2. Whether the sampling approach constitutes an improper delegation of judicial authority or denies a fair opportunity to litigate privilege objections.

## Decision

- The court upheld the special master’s sample-based privilege resolution process as providing adequate procedural protections.
- The court granted Merck’s motion to adopt the report and recommendations in part and denied it in part, adopting most recommendations while making adjustments.
- The court rejected the premise that the judge must personally conduct a document-by-document privilege review of tens of thousands of withheld documents in this setting.
- The court treated the sampling protocol, combined with judicial supervision and review of recommendations and objections, as a permissible method to resolve the remaining privilege disputes.

## Legal Principles

- Federal Rule of Civil Procedure 53 permits appointment of a special master to assist with complex, burdensome discovery disputes, including privilege reviews, so long as the court retains control and provides meaningful review.
- In large-scale electronic discovery involving tens of thousands of potentially privileged communications, a representative sampling methodology may be an acceptable procedure to adjudicate privilege claims when individualized judicial review is impracticable.
- Due process in privilege adjudication can be satisfied through a structured process that includes party participation, opportunities to object, transparency regarding the method, and active judicial oversight of the master’s work product.
- Delegation to a special master is permissible when the master aids the court’s decision-making rather than replacing it, and the court independently evaluates and may modify the recommendations.

## Conclusion

The court approved a Rule 53 special master’s representative sampling procedure to resolve Merck’s large-scale attorney–client privilege assertions in the Vioxx MDL, holding that the method—subject to party objections and district-court review—provided adequate procedural protections and was a proper response to the impracticality of exhaustive judicial document-by-document review.


In re Vioxx Prods. Liab. Litig., 501 F. Supp. 2d 789 (E.D. La. 2007)