When Privilege Fails: Interstate Litigation and the Erosion of Privilege Law
In April 2011, the Chief Judge of the United States District Court for the Southern District of Illinois tackled a discovery dispute of unprecedented dimension. The case: In re Yasmin and Yaz (Drospirenone) Marketing, Sales Practices and Products Liability Litigation—a multidistrict litigation combining 5998 lawsuits from nearly every state in the nation, as well as the District of Columbia and Puerto Rico, against various Bayer companies over the prescription drugs Yaz, Yasmin, and Ocella. The document production: nearly three million documents—approximately sixty-five million pages—produced by Bayer, with another 12,857 documents withheld by Bayer as privileged. The issue: whether the attorney-client privilege and/or work-product doctrine protected 330 of these allegedly privileged documents, which Bayer generated in different states and which related to various underlying lawsuits. The Federal Rules of Evidence lack any provision governing privilege in diversity cases such as this one; instead, Rule 501 provides: “[I]n a civil case, state law governs privilege []regarding a claim or defense for which state law supplies the rule of decision.” The question: Which state law applies?