Possibility of Responsive Non-Privileged Attachments Demands Additional Production

Why This Case Law Alert Is Important 

This case highlights a critical precedent in e-discovery, further complicating e-discovery for teams tasked with dealing with "modern attachments." It emphasizes the importance of effectively managing privilege reviews and complex hyper-linked or attached documents.

Overview 

The case In re Bard Implanted Port Catheter Prods. Liab. Litig., MDL No. 3081 (Jan. 17, 2025), involved a dispute in a multidistrict litigation regarding the defendant's port catheter devices. During a Case Management Conference, the plaintiffs contested the defendants' interpretation of attorney-client privilege regarding nonprivileged documents attached to privileged communications. Plaintiffs argued that defendants withheld responsive, nonprivileged attachments during discovery. Defendants maintained no further review was necessary, citing compliance with their privilege log and a prior review sample in which no documents were missed. However, plaintiffs called for further review, claiming possible undisclosed documents. 

While acknowledging defendants' good faith, Judge David G. Campbell determined that the existing sample review (covering 39 attachments) was insufficient to ensure all responsive, nonprivileged documents were produced. The court ordered a comprehensive review of all attachments to privileged communications to identify and disclose nonprivileged, responsive documents, contrasting the defendants' stance that the timing of the challenge under Case Management Order 19 was untimely. The court justified its ruling under "good cause," citing the defendants’ newly clarified practice leading to the issue. 

E-Discovery Case Law Ruling 

• Privilege Not Conveyed by "Attachment." The court ruled that nonprivileged documents attached to privileged communications must be produced if they are responsive to discovery requests "even if the only location where the document is found in Defendants’ possession is as an attachment to the privileged communication." The fact of being attached to a privileged document does not convey privilege if the attachment would not intrinsically be a privileged document itself.
• Lack of Production Not a Sign of Bad Faith. Defense counsel contended that no further review of withheld attachments was necessary, citing a sample review of 39 attachments, all of which had been produced to Plaintiffs through other means. The ruling explained "the Court does not find that Defendants failed to act in good faith in reviewing documents and compiling their privilege log," the situation "clearly reveals the possibility that responsive nonprivileged documents have been withheld from production because they were attached to a privileged communication and were not found elsewhere in Defendants’ possession."
• Production of Responsive Attachments Required. While acknowledging the Plaintiffs raised the issue after 70 days after the production of the privilege log, the Court found, under CMO 19, that challenges brought later if they could not have been made earlier. Therefore, Defendants were required to complete their review of attachments and produce any "previously undisclosed responsive and nonprivileged documents."

E-Discovery Case Law Tip 

Have questions on how the FRCP applies to e-discovery? Want to make sure your arguments align with critical rules governing e-discovery? Download this Guide to the FRCP to get all your questions answered.