Wednesday, January 13, 2016

Work Product Doctrine Covers Use of Attorney’s Non-Legal Knowledge in Furtherance of Litigation Goals

The court denied plaintiff's motion to compel defendant to produce a scientific protocol prepared by an attorney-scientist at defendant's subsidiary because the information was protected work product. "[Plaintiff] argues that it seeks discovery 'only into the scientific facts surrounding the development of the protocol,' and not [the attorney-scientist's] legal opinions, thought processes or legal explanations. . . . But the protocol was communicated to [an outside researcher] expressly for the purpose of disproving [plaintiff's] assertion in [related foreign] litigation. . . . Any adjustments [the attorney-scientist] made to the protocol would necessarily have been done in consideration of its purpose in countering [plaintiff's] litigation position. . . . [W]hile a scientist might not ordinarily start with fresh bottles, a lawyer would do so in order to 'eliminate questions that would arise . . . about how do you know that the reagents were what they purported to be.' In other words, the scientific instruction necessarily reflects the attorney’s strategic thinking about issues likely to arise down the road in litigation. When an attorney with experience in other fields wields that non-legal knowledge in furtherance of litigation goals, the attorney’s mental impressions, conclusions or opinions remain protected opinion work product because the non-legal and legal thinking are inextricably intertwined in service of the litigation."

Gilead Sciences, Inc. v. Merck & Co., Inc. et al, 5-13-cv-04057 (CAND January 11, 2016, Order) (Grewal, M.J.)

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