The National Law Journal (8/12/14) reports that plaintiffs and defendants are arguing over more than 1,800 documents. Plaintiffs want to compel Merck to provide those documents, claiming that the company has yet to produce any documents based on a claim misapplied of privilege. Merck claims its documents are protected under attorney-client or work-product privilege.
“In contravention of Merck’s obligation under Rule 26 to continuously supplement responses for completeness, Merck has not produced any of the over 1800 documents Plaintiffs challenged,” plaintiffs argue in court documents. “It is therefore only reasonable for the Court to assume that Merck has no intention of doing so without intervention from the Court.”
Plaintiffs allege Merck has mishandled its documents in discovery and argue that Merck’s e-mail system automatically deletes e-mails after 127 days, unless an employee personally prevents that from happening. The plaintiffs further argue that the party that attempts to withhold documents must prove privilege exists and that Merck has not met that burden.
Part of the issue, according to the plaintiffs, is that documents that were not written by attorneys or sent to attorneys are being withheld as privileged. “The black letter law in New York is clear that these communications are not privileged,” the plaintiffs argue.
The plaintiffs accuse Merck of serious misconduct in its handling of documents in discovery.
READ MORE PROPECIA LEGAL NEWS
According to the National Law Journal article, more than 740 cases have been consolidated for multidistrict litigation. Those lawsuits allege men suffered from long-term side effects of Propecia, including sexual dysfunction and mental and emotional symptoms. Plaintiffs allege they were not adequately warned about the risks. They further allege that the risk of side effects not going away once medication was stopped was downplayed.
Propecia, known generically as finasteride, is used to treat hair loss. Proscar is a higher dose version of Propecia.
The MDL is In re: Propecia (Finasteride) Products Liability Litigation, MDL 2331, in the US District Court, Eastern District of New York.