MERCK, VIOXX, AND PRIVILEGE . . . For privilege, Merck, or Vioxx-litigation junkies, there was an interesting order issued yesterday by Judge Fallon in the federal Vioxx MDL: "Order & Reasons dated August 14, 2007" (pdf, link from the Vioxx MDL website). The ruling denies most of Merck's attorney-client-privilege objections on a representative sampling of about 30,000 documents it has refused to produce. The ruling on the sampling will apparently apply to most of the 30,000 documents.
Judge Fallon noted in his opinion that he covered the issues "in considerable detail" in the hopes that the procedures employed by his Court in ruling on Merck's massive number of privilege claims would serve as a guideline to resolving "time consuming and expensive" privilege issues in complex cases "in the dawn of the age of electronic discovery."
The specific contents of the documents that Merck must now produce is only hinted at in the ruling. However, we'll soon know the contents, as these documents must be produced immediately, with all documents "held to be discoverable (both samples documents reviewed by the Special Master and similar documents in the remaining census)" to be produced by September 15, 2007. The extent to which there is press coverage about these additional documents could be a test of whether there is still general interest in the Vioxx litigation among Wall Street Journal types. It might also be a reflection of whether the documents themselves are controversial.
On the point of controversy, it was interesting to read on page 21 of the order that Merck lawyers "made extensive grammatical, editorial, and word choice comments on non-legal type communications like scientific reports, articles, and study proposals." See also page 28. Just how involved Merck's lawyers were in Vioxx-related corporate spin remains to be seen, but lots of lawyer input into scientific issues would raise some troubling issues.
Perhaps in the pile of documents lies the answer to the continuing mystery of why just before marketing Vioxx, Merck removed a section from its Merck Manual about prostacyclin that arguably would have made Vioxx appear more risky. It's not a major part of the litigation, but it has come up in most of the trials. In a ruling from last week denying Merck's motion for a new trial in Cona/McDarby, Judge Higbee mentions the Merck-Manual mystery on pages 7-8. See here (pdf).
More details about Judge Fallon's rulings can be found in the three charts that accompany his order, which list particular documents, the Court's ruling and a summary of its reasoning: Chart I, Chart II and Chart III (pdf).
For my collected Vioxx posts, look here.