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
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.
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