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IN RE OMEPRAZOLE PATENT

United States District Court, S.D. New York


April 9, 2004.

In re OMEPRAZOLE PATENT LITIGATION

The opinion of the court was delivered by: BARBARA JONES, District Judge

Opinion

The Court has reviewed the submissions regarding Astra's appeal of Special Master Peterson's March 25, 2004 ruling, and directs Esteve to provide the Special Master with document EQ-FD 71491-93, together with a detailed declaration regarding the circumstances surrounding the document's creation, for his in camera review. The Special Master should then determine, (1) whether the document is privileged, (2) whether (if privileged), in light of the contents of the document, it "had sufficient `impact' on [Dr. Coppi's] testimony," to compel production pursuant to Federal Rule of Evidence 612, see Bank Hapoalim, B.M. v. American Home Assurance Co., 1994 WL 119575, *5 (S.D.N.Y. April 6, 1994), and whether compelling production of the document "is necessary in the interests of justice." See In re Joint Eastern & Southern Dist. Asbestos Lit., 119 F.R.D. 4, 6 (E.D. & S.D.N.Y. 1988)(setting forth a three factor balancing test to determine whether compelling production of a document is required under Rule 612); see also Ehrlich v. Howe, 848 F. Supp. 482, 493-94 (S.D.N.Y. 1994). The Court denies Astra's motion with respect to document EQ-FL 902-04. The privilege log supplied by Esteve sufficiently details a proper basis for its claim of privilege over this document. In addition, the Special Master's determination that Dr. Coppi's testimony did not reflect reliance on this document, thereby triggering a 612 analysis, was not clearly erroneous or contrary to law. Accordingly, Astra's appeal with respect to this document is denied.

SO ORDERED.

20040409

© 1992-2004 VersusLaw Inc.



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