Debra A. And George Simon v. G.D. Searle & Co.
816 F.2d 397 (1987)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
Documents created by a non-lawyer corporate department for regular business planning purposes are not protected from discovery by the work product doctrine, even if they contain aggregate data derived from confidential attorney work product like individual case reserves, so long as the underlying protected information is not revealed. Similarly, the attorney-client privilege does not attach to business documents circulated to counsel unless their purpose is to obtain legal advice.
Facts:
- G.D. Searle & Co. (Searle) manufactured an intrauterine contraceptive device known as the 'Cu-7'.
- Numerous individuals filed products liability lawsuits against Searle, alleging they suffered injuries from using the Cu-7.
- For each lawsuit, Searle's legal department confidentially determined an individual 'case reserve' figure, which estimated the anticipated legal expenses, settlement value, and other litigation-related factors.
- Searle's lawyers communicated these individual case reserve figures to the company's non-lawyer risk management department.
- The risk management department used the individual case reserves to create new documents containing aggregate reserve information and other analyses for business planning purposes, such as budgeting, profitability analysis, and insurance considerations.
Procedural Posture:
- Approximately forty products liability lawsuits were filed against G.D. Searle & Co. in the United States District Court for the District of Minnesota.
- The cases were consolidated for discovery purposes before the trial court.
- The district court appointed a special master to supervise the discovery process.
- Plaintiffs sought discovery of documents from Searle's risk management department, which Searle resisted, asserting work product and attorney-client privileges.
- The special master conducted an in camera review and recommended that documents revealing aggregate reserve information were discoverable.
- The district court adopted the special master's report and ordered Searle to produce the documents.
- Searle requested, and the district court granted, a certification for an interlocutory appeal to the U.S. Court of Appeals for the Eighth Circuit on the discovery issue.
- The Court of Appeals granted Searle's petition for permission to appeal.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does the work product doctrine or the attorney-client privilege protect from discovery corporate risk management documents, prepared by non-lawyers for business purposes, that reveal aggregate litigation reserve information compiled from confidential individual case reserves set by lawyers?
Opinions:
Majority - Wollman, Circuit Judge
No, the work product doctrine and attorney-client privilege do not protect these corporate risk management documents from discovery. The work product doctrine only shields documents prepared 'in anticipation of litigation.' These documents, however, were prepared in the ordinary course of business for business planning purposes, not for litigation. While the individual case reserves set by attorneys are protected opinion work product because they reveal mental impressions, the aggregate information in the risk management documents does not enjoy the same protection. The aggregation process dilutes the individual figures to the point where an attorney's specific thoughts on any single case cannot be identified. Similarly, the attorney-client privilege does not protect business documents simply because they incorporate information from lawyers or are copied to them; the communication must be for the purpose of seeking legal advice.
Dissenting - John R. Gibson, Circuit Judge
Yes, the documents should be protected from discovery. The majority's holding is inconsistent because it protects the individual case reserves (the parts) but not the aggregate data derived directly from them (the sum of the parts). The aggregate figures necessarily embody and give insight into the lawyers' protected mental impressions. The court also misapplies the 'ordinary course of business' exception; these documents exist only because of the litigation, and concluding they are for 'business planning' creates a Catch-22 where the existence of litigation simultaneously triggers both the work product rule and its exception. Furthermore, the court ignores that the work of the risk management department itself—analyzing litigation costs—constitutes opinion work product of a party's 'representative' under Rule 26(b)(3).
Analysis:
This decision clarifies the scope of the work product doctrine in the corporate context, particularly for documents that aggregate sensitive legal data. It establishes that the purpose for which a document is created (business planning vs. litigation) is paramount, and that data derived from protected work product can lose its protection if it is transformed for a non-litigation purpose and no longer reveals the underlying protected mental impressions. This ruling creates a line between discoverable corporate financial planning and protected legal strategy, potentially making it more difficult for corporations to shield internal analyses of mass tort liability. It reinforces that simply involving lawyers or legal data does not automatically cloak a business document in privilege.
