It Is So Ordered: Improper Attempts to Assert Attorney-Client Privilege Will Not Be Tolerated
On May 21, 2018, Judge Lawrence F. Stengel of the US District Court for the Eastern District of Pennsylvania granted Relator Gohil’s motion to compel calling for the production of hundreds of attorney-client privilege-asserted documents in a False Claims Act dispute.
In the underlying case, United States of America ex rel. Yoash Gohil v. Aventis Pharmaceuticals, Inc.,et al., Gohil, a Senior Oncology Sales Specialist at Aventis (now Sanofi), filed a qui tam action against his former employer, Sanofi-Aventis U.S., Inc. and its subsidiaries. Gohil alleged Sanofi illegally advertised its chemotherapy drug Taxotere for unapproved or off-label uses and paid kickbacks to doctors who prescribed such uses. The former employee alleged that these practices caused health care providers to submit false claims under the False Claims Act. As a result of Aventis’s unlawful marketing practice, Gohil alleged, Taxotere’s revenues increased from $424 million to $1.4 billion from 2000 to 2004.
Sanofi argued Gohil’s claims were barred by the six-year statute of limitations and were precluded by the First Amendment because free speech extends to commercial speech, including untruthful speech regarding Taxotere. Judge Stengel denied the motion finding Sanofi had fair notice of the claims, and there was not enough information to decide the First Amendment issue.
Fast-forwarding to discovery, in Gohil’s motion to compel discovery responses, Gohil argued Sanofi improperly attempted to claim privilege by broadly categorizing communications with third parties such as marketing firms, employees, or emails with attorneys merely copied to assert privilege, as “consultants involved in giving of legal advice.” Judge Stengel rejected Sanofi’s argument and ordered the defendant to hand over the documents.
The Court’s order directs Sanofi to turn over “all documents related to the PACT program,” a program offering aid for treatment payment to qualified individuals. The Court’s order includes documents maintained by third-party vendors, databases, documents related to contract negotiation, documents related to the destruction of any PACT documents, and documents related to PACT reimbursement managers.
Ultimately, attorney-client privilege will only shield from discovery those communications and documents related to obtaining legal advice. The Court found any attempt to conceal pertinent documents by asserting unfounded attorney-client privilege will not be tolerated.