Case 0:15-cv-61536-BB Document 32 Entered on FLSD Docket 03/10/2016 Page 1 of 12 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 15-CIV-61536-BLOOM/VALLE KEISHA HALL, v. Plaintiff, TEVA PHARMACEUTICALS USA, INC., Defendant. / PLAINTIFF S MOTION TO COMPEL RE: PLAINTIFF S FIRST SET OF INTERROGATORIES Plaintiff, Keisha Hall, moves pursuant to Federal Rules of Civil Procedure 26 and 37 for entry of an order compelling Defendant to provide responsive answers to Plaintiff s First Set of Interrogatories to Defendant, and to provide a privilege log from which Plaintiff can assess the veracity of Defendant s various privilege objections, and shows as grounds: I. Background This is an action by Keisha Hall, a certified public accountant, certified fraud examiner and former director of finance for Teva Pharmaceuticals USA, Inc., whom Teva fired shortly after she began cooperating in a Securities and Exchange Commission/Department of Justice investigation into potential violations of the Foreign Corrupt Practices Act and the Sarbanes- Oxley Act, stemming from, among other things, allegations of bribery of government officials within the Latin America region. Plaintiff s claims are brought pursuant to section 922 of the Dodd-Frank Wall Street Reform and Consumer Protection Act, 15 U.S.C. 78u-6 ( Dodd- Frank ), the Family and Medical Leave Act, 29 U.S.C. 2615, and Florida s private-sector Whistle-blower s Act, 448.101, et seq. Plaintiff s Complaint, ECF No. [1] ( Compl. ). Page 1 of 12
Case 0:15-cv-61536-BB Document 32 Entered on FLSD Docket 03/10/2016 Page 2 of 12 Plaintiff served written discovery on December 3, 2015 and Defendant served responses on January 19, 2016. The parties conferred via conference call on January 27 and 29, 2016, during which time counsel for Plaintiff advised that, among other things, the extent of Defendant s privilege-based objections was a concern for Plaintiff. Defendant served supplemental responses on February 2, 2016, which responses are appended as Ex. 1. Defendant asserted both attorney client and work-product objections to nearly all of Plaintiff s interrogatories. See Id. In an email dated February 3, Plaintiff advised as follows: Please let us know when you intend to serve Teva s privilege log. Below you mention that Teva will serve a privilege log for non-esi documents today. We need a privilege log for all documents Teva is withholding based on privilege, and we need a privilege log for any privileged information Teva is withholding in response to Plaintiff s Interrogatories. February 2-4, 2016 e-mail string, appended as Ex. 2. Defendant responded and claimed that Teva believes that the majority, if not all of this information, is contained in ESI that have yet to be reviewed because the parties have not been able to come to an agreement on the scope, custodians, and search terms for ESI. As we have explained on numerous occasions, you will receive a privilege log in connection with ESI once we review the documents. 1 Id. at 3-4. Plaintiff advised that Defendant s privilege explanation was hard to follow because many of her requests had nothing to do with ESI, and explained that: Teva objected to, for example, Interrogatory No. 4, which states as follows: As to the decision to terminate Plaintiff s employment: a) identify each person who had input into that decision, participated in that decision, finally made or executed that decision, and state the role of each person 1 During conferral efforts Defendant sent to Plaintiff a thirteen-page ESI Protocol that included various provisions, many of which Plaintiff had already made clear that she could not agree to. See Plaintiff s Motion to Compel re: Plaintiff s Request for Production, ECF No. [31] at 2-4, Ex. 4. Page 2 of 12
Case 0:15-cv-61536-BB Document 32 Entered on FLSD Docket 03/10/2016 Page 3 of 12 (e.g., recommended the decision; reviewed the decision; made the decision, communicated the decision, etc.); b) specify the dates of and identify the participants in any and all discussions (verbal or written) in deciding to terminate Plaintiff s employment; c) specify each reason for terminating Plaintiff s employment, and; d) identify each document that was reviewed, used and/or created during the decision making process, provided a basis for the decision, or was used in an after-the-fact analysis of the decision. This interrogatory does not ask Teva to produce documents, yet Teva is objecting because the interrogatory seeks the production of documents and/or information that is protected from disclosure by the attorney-client privilege and/or work product doctrine. It is not apparent how the parties agreement or disagreement on any ESI protocol has any impact on Teva withholding what it contends is privileged information in response to this interrogatory. See Ex. 2 at 3. This interrogatory asks Defendant to identify (1) people, (2) dates and conversations, (3) reasons for Plaintiff s termination, and (4) documents related to her termination. Importantly, it does not request that Defendant produce any documents. Plaintiff again followed-up on February 4, 2016, advising: It has been over two weeks since we received Teva s responses and objections to Plaintiff s request for production and interrogatories. Teva asserted privilege objections to many of the requests, yet we still haven t seen a privilege log. We have been considerably patient.... Please let us know when we can expect to receive Defendant s privilege log. Id. at 1-2. One week later, on February 11, 2016, Defendant served its Non-ESI privilege log, containing just four entries: Bates Date To From Description Privilege 000859 11/14/14 N/A N/A M. Rahill's handwritten notes Attorney-Client reflecting legal advice from J. Pease regarding K. Hall's employment 000876 11/20/14 Deborah Griffin Jennifer Flaisher Email reflecting legal advice from in-house counsel regarding K. Hall's FMLA leave Attorney-Client Page 3 of 12
Case 0:15-cv-61536-BB Document 32 Entered on FLSD Docket 03/10/2016 Page 4 of 12 000877 11/19/14 Deborah Griffin 000879 11/20/14 Deborah Griffin Jennifer Flaisher Jennifer Flaisher Email discussing upcoming meeting with in-house counsel regarding K. Hall's employment Email referencing request for legal review from inhouse counsel regarding K. Hall and the Finance Compliance Director position Attorney-Client Attorney-Client Defendant s Non-ESI Privilege log, appended as Ex. 3. The parties additionally conferred via email regarding various disagreements during a call on March 5, 2016 and via email March 6-9. See March 6-9, conferral efforts email string, appended as Ex. 4. II. Argument and Incorporated Memorandum of Law A. Defendant s privilege assertions are inappropriate and its privilege log is inadequate. Federal privilege law applies This action arises under the Dodd-Frank Act and the Family Medical leave Act, with a supplemental jurisdiction count under the Florida Whistle-blower s Act. Thus, under Federal Rule of Evidence 501, any question of privilege is governed by the federal common law. Hancock v. Hobbs, 967 F.2d 462, 466 (11th Cir. 1992) ( Courts that have confronted this issue in the context of the discoverability of evidence have uniformly held that the federal law of privilege governs even where the evidence sought might be relevant to a pendent state claim ). Under federal law, [t]he burden of proof rests squarely on the party claiming the attorney-client privilege to show that the primary purpose of the communication in question was for the purpose of obtaining legal advice, not business advice. Preferred Care Partners Holding Corp. v. Humana, Inc., 258 F.R.D. 684, 689 (S.D. Fla. 2009) (citation omitted). Page 4 of 12
Case 0:15-cv-61536-BB Document 32 Entered on FLSD Docket 03/10/2016 Page 5 of 12 Federal law calls for a narrow interpretation of privileges The attorney-client privilege prohibits the disclosure of the substance of communications made in confidence by a client to his attorney for the purpose of obtaining legal advice. United States v. Pipkins, 528 F.2d 559, 562 (5th Cir. 1976). 2 The attorney-client privilege... is not a broad rule of law which interposes a blanket ban on the testimony of an attorney. To the contrary,... the privilege stands in derogation of the public s right to every man s evidence, 8 Wigmore [McNaughton rev. ed. 1961] 2192 at 70, and as an obstacle to the investigation of the truth, id., 2291 at 554; thus, as Wigmore has said, It ought to be strictly confined within the narrowest possible limits consistent with the logic of its principle. Id. at 562-563, quoting In re Horowitz, 482 F.2d 72, 81 (2d Cir. 1973), cert. denied, 414 U.S. 867 (1973). Seeking or giving business advice is not attorney-client privileged: The possession of a law degree and admission to the bar is not enough to establish a person as an attorney for purposes of determining whether the attorney-client privilege applies. For the privilege to exist, the lawyer must not only be functioning as an advisor, but the advice given must be predominantly legal, as opposed to business, in nature. North American Mortg. Investors v. First Wisconsin Nat l Bank, 69 F.R.D. 9, 11 (E.D. Wis. 1975) (compelling production of memorandum written by attorney-employee of bank analyzing proposed construction loan). [C]ommunications made by and to [an] in-house lawyer with respect to business matters, management decisions or business advice are not protected by the privilege. Boca Investerings Pshp. v. United States, 31 F. Supp. 2d 9, 11 (D.D.C. 1998). As observed in In re Fischel, 557 F.2d 209, 211 (9th Cir. 1977) (affirming finding of contempt against lawyer who refused to produce tax analyses on the grounds that they were attorney-client privileged), [t]he purpose of the [attorney-client] privilege is to protect and foster the client s 2 In Bonner v. City of Prichard, 661 F.2d 1206, 1207 & 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as binding precedent the decisions of the Fifth Circuit rendered prior to October 1, 1981. Page 5 of 12
Case 0:15-cv-61536-BB Document 32 Entered on FLSD Docket 03/10/2016 Page 6 of 12 freedom of expression. It is not to permit an attorney to conduct his client s business affairs in secret. Although [t]he mere mention of business considerations is not enough to compel the disclosure of otherwise privileged material, and [l]egal advice should remain protected along with nonlegal considerations discussed between client and counsel that are relevant to that consultation,... Eglin Federal Credit Union v. Cantor, Fitzgerald Sec. Corp., 91 F.R.D. 414, 420 (N.D. Ga. 1981), citation omitted, (rejecting assertion by plaintiff in securities-fraud case that business discussions were privileged because they were only incidental to obtaining legal advice), when the ultimate decision then requires the exercise of business judgment and when what were relevant nonlegal considerations incidental to the formulation of legal advice emerged as the business reasons for and against a course of action, those business reasons considered among executives are not privileged. Id. Non-lawyer, non-litigation tasks are not attorney-client or work-product protected just because they are performed by a lawyer Federal Rule of Civil Procedure 26(b)(3)(A) protects against disclosure for documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party s attorney, consultant, surety, indemnitor, insurer, or agent)... Although litigation need not necessarily be imminent, for the workproduct privilege to apply, the primary motivating purpose behind the creation of the document [must have been] to aid in possible future litigation. United States v. Davis, 636 F.2d 1028, 1040 (5th Cir. 1981); see also Garcia v. City of El Centro, 214 F.R.D. 587, 593-594 (S.D. Cal. 2003) (city claims adjustor s interview of two police officers accused to using excessive force, as well as their sergeant, was in normal course of business and not in anticipation of litigation). Neither the attorney-client nor work-product privileges apply when an attorney is brought in to Page 6 of 12
Case 0:15-cv-61536-BB Document 32 Entered on FLSD Docket 03/10/2016 Page 7 of 12 do a factual investigation that could easily be done by non-attorneys and no litigation is on the horizon. See, e.g., Diversified Indus. v. Meredith, 572 F.2d 596, 603-604 (8th Cir. 1977) (no work-product privilege attached to law firm s report to board of directors on its investigation of business practices of company that had come to light in settled litigation with the Securities and Exchange Commission). Privilege log requirements This Court has recognized that Under Rule 26(b)(5)(A), when a party withholds information as protected from disclosure under the attorney-client privilege or work product doctrine, the party must: (i) expressly make the claim; and (ii) describe the nature of the documents, communications, or tangible things not produced or disclosed and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.... [A] privilege log should identify each document and the individuals who were parties to the communications with sufficient detail to permit the compelling party or court to determine if the privilege is properly claimed.... Importantly, the party claiming the privilege has the burden of establishing all of its essential elements. Anderson v. Branch Banking & Trust Co., Case No. 13-CV-62381, 2015 U.S. Dist. LEXIS 63312, *5 and n.2 (S.D. Fla. May 14, 2015) (internal quotations and citations omitted). Interrogatory Nos. 4, 5, 6 and 7 Interrogatory No. 4 As to the decision to terminate Plaintiff s employment: a) identify each person who had input into that decision, participated in that decision, finally made or executed that decision, and state the role of each person (e.g., recommended the decision; reviewed the decision; made the decision, communicated the decision, etc.); b) specify the dates of and identify the participants in any and all discussions (verbal or written) in deciding to terminate Plaintiff s employment; c) specify each reason for terminating Plaintiff s employment, and; Page 7 of 12
Case 0:15-cv-61536-BB Document 32 Entered on FLSD Docket 03/10/2016 Page 8 of 12 Response: d) identify each document that was reviewed, used and/or created during the decision making process, provided a basis for the decision, or was used in an after-the-fact analysis of the decision. Defendant objects to Interrogatory No. 4 to the extent that it seeks the production of documents and/or information that is protected from disclosure by the attorney-client privilege and/or work product doctrine. For example, this Interrogatory purports to require the production of documents and/or information created by or at the direction of Teva s in-house counsel in connection with Teva s Office of Business Integrity investigation into the allegations against Hall and the decision to terminate her employment. Accordingly, this information, as well as other privileged information, will not be produced. Ex. 1, at 8-10. Significantly, Defendant went on to identify several individuals that it contends were involved in the decision terminate Plaintiff, but did not otherwise adequately respond to this interrogatory. For reasons not entirely clear, Defendant did not include former in-house counsel John Pease as an individual who participated in the decision to terminate, notwithstanding that Pease was apparently involved in a conference call regarding the allegations that purportedly led to Plaintiff s termination, during which he provided legal advice regarding K. Hall s employment. See Ex. 3; see also Handwritten Notes of investigator Michael Rahill, appended herein as Ex. 5. 3 The assertion of privilege as to legal advice from John Pease is particularly concerning to Plaintiff, as Pease served as in-house principal counsel to Michael Dearborn Teva s former Global Compliance Officer and an individual about whom the DOJ and SEC questioned Plaintiff just prior to Plaintiff s termination. See Plaintiff s Complaint, ECF No. [1], at 5-11. Plaintiff cannot tell from a review of Defendant s incomplete privilege log whether Defendant s privilege assertions are appropriately asserted. 3 Plaintiff is forced to speculate based on (1) the content of the handwritten notes, and (2) Defendant s privilege log. Plaintiff should not be forced to speculate when she asked Defendant to specify the dates and identify the participants in any and all discussions (verbal or written) in deciding to terminate Plaintiff s employment. See Interrogatory No. 4(b). Page 8 of 12
Case 0:15-cv-61536-BB Document 32 Entered on FLSD Docket 03/10/2016 Page 9 of 12 Interrogatory No. 5 Response: Describe in detail how and why Defendant decided not to select Plaintiff for the Financial Compliance Director position in or around 2014, including but not limited to: (a) identifying each person who had input into that decision, participated in that decision, finally made or executed that decision, and state the role of each person (e.g., recommended the decision; reviewed the decision; made the decision, communicated the decision, etc.); (b) specifying each reason for not selecting Plaintiff for the position; (c) specifying the dates of and identifying the participants in any and all discussions (verbal or written) in deciding not to select Plaintiff for the position; and (d) identify each document that was reviewed, used and/or created during the decision making process, provided a basis for the decision, or was used in an after-the-fact analysis of the decision. Defendant objects to Interrogatory No. 5 to the extent that it seeks the production of documents and/or information that is protected from disclosure by the attorney-client privilege and/or work product doctrine. For example, this Interrogatory purports to require the production of documents and/or information created by or at the direction of Teva s in-house counsel, as well as legal advice provided by Teva s in-house counsel in connection with Hall s application and candidacy for the position. Further, this Interrogatory purports to require the production of documents and/or information created by or at the direction of Teva s in-house counsel in connection with Teva s Office of Business Integrity investigation into the allegations against Hall. Accordingly, this information, as well as other privileged information, will not be produced. Ex. 1, at 10-13. Defendant s response to Interrogatory No. 5 suffers from the same deficiencies as Interrogatory No. 4. Plaintiff cannot adequately assess Defendant s claims of privilege. Interrogatory No. 6 As to any investigation performed by Defendant concerning whether Plaintiff had used Teva assets to conduct personal business: (a) identify each person who participated in such an investigation and state the roll performed by each person; Page 9 of 12
Case 0:15-cv-61536-BB Document 32 Entered on FLSD Docket 03/10/2016 Page 10 of 12 Response: (b) identify each person interviewed as part of any investigation; (c) identify each person present during any interview; (d) specify the date and time of each interview; (e) identify each document reviewed as part of each such investigation; (f) identify each person to whom the results of any investigation were communicated; and (g) identify each person possessing either notes or a report of each such investigation. Defendant objects to this Interrogatory to the extent that it seeks the production of documents and/or information that is protected from disclosure by the attorney-client privilege and/or work product doctrine. For example, this Interrogatory purports to require the production of documents and/or information created by or at the direction of Teva s in-house counsel as part of the Office of Business Integrity investigation, as well as the disclosure of legal advice provided by Teva s in-house counsel in connection with the investigation into the allegations against Hall. Accordingly, this this information, as well as other privileged information, will not be produced. Ex. 1, at 13-15. Defendant s response to Interrogatory No. 6 suffers from the same deficiencies as Interrogatory No. 4. Plaintiff cannot adequately assess Defendant s claims of privilege. 4 B. Plaintiff s motion is timely or, in the alternative, Plaintiff can show reasonable cause for a three-day delay. Defendant served its supplemental responses on February 2, 2016, thereby making the 30-day deadline, pursuant to Local Rule 26.1(g) and the time computation provisions of the Federal Rules, March 7, 2016 at the earliest. Defendant did not serve its privilege log until February 11, 2016. Plaintiff could not properly assess the adequacy of Defendant s privilege objections until at least February 11, 2016. Thus, the instant motion is well within any 30-day 4 To the extent Defendant has withheld the name of any individual on grounds of privilege in response to Interrogatory No. 6, that information would necessarily impact Interrogatory No. 7, which asks Defendant to describe the nature and substance of any testimony, statement, knowledge, or information individuals identified in Interrogatory 6(b) might have. Page 10 of 12
Case 0:15-cv-61536-BB Document 32 Entered on FLSD Docket 03/10/2016 Page 11 of 12 window. Alternatively, Plaintiff s lead counsel was called to trial this week (beginning Monday, March 7 and likely lasting through Friday, March 11) in the Southern District in a matter before Hon. James I. Cohn. As such, undersigned counsel drafted the instant (and pending, see ECF No. [31]) discovery motions, which motions took longer than anticipated to prepare in light of other deadlines and continued conferral efforts in the instant matter. See Ex. 4. Plaintiff contends that the circumstances as described herein constitute the reasonable cause for a later filing as contemplated by the Local Rules. Certificate of Conferral Pursuant to S.D. Fla. L.R. 7.1(A), undersigned counsel conferred with Defendant s counsel via several email exchanges and also on phone conferences. The parties did not reach agreement on the issues raised herein. Respectfully submitted, s/ Ryan C. Brenton Ryan C. Brenton Florida Bar No. 107675 rcb@brentonlegal.com Brenton Legal PA 500 NE 4th Street Fort Lauderdale, FL 33301 954-639-4644 Page 11 of 12
Case 0:15-cv-61536-BB Document 32 Entered on FLSD Docket 03/10/2016 Page 12 of 12 Certificate of Service I hereby certify that a true and correct copy of the foregoing has been electronically filed with the United States District Court for the Southern District of Florida and thereby electronically transmitted to counsel of record this 10 th day of March 2016. Service List: WILLIAM R. AMLONG Florida Bar No. 470228 WRAmlong@TheAmlongFirm.com THE AMLONG FIRM 500 Northeast Fourth Street, Second Floor Fort Lauderdale, Florida 33301 Telephone: 954-462-1983 Attorneys for Plaintiff SARAH E. BOUCHARD (pro hac vice) sbouchard@morganlewis.com LAUREN E. MARZULLO (pro hac vice) lmarzullo@morganlewis.com MORGAN, LEWIS & BOCKIUS LLP 1701 Market Street Philadelphia, PA 19103 Telephone: 215-963-5000 SHARON A. LISITZKY Florida Bar No. 0382700 slisitzsky@morgamlewis.com MORGAN, LEWIS & BOCKIUS LLP 200 South Biscayne Boulevard Suite 5300 Miami, Florida 33131-2339 Telephone: 305-415-3369 Attorneys for Defendant Page 12 of 12