United States District Court, E.D. North Carolina, Southern Division
FREDRIC N. ESHELMAN, Plaintiff,
PUMA BIOTECHNOLOGY, INC., Defendant.
B. JONES, JR. UNITED STATES MAGISTRATE JUDGE.
Puma Biotechnology Inc. ("Puma") moves the court to
compel Plaintiff Fredric N. Eshelman ("Eshelman")
to produce a privilege log for documents withheld on the
basis of attorney-client privilege and/or work product
doctrine. [DE-117]. Eshelman opposes the motion. [DE-118].
The motion has been referred for disposition pursuant to 28
U.S.C. § 636(b)(1)(A). For the reasons stated below,
Puma's motion is denied.
February 2, 2016, Eshelman filed a complaint against Puma and
Alan H. Auerbach ("Auerbach"), Puma's chief
executive officer ("CEO") and Board Chairman,
asserting claims of libel per se and libel per
quod related to an allegedly defamatory investor
presentation. See [DE-1, -5]. Puma is
abiopharmaceutical company focused on acquiring, developing,
and commercializing innovative cancer-care products. Compl.
[DE-5] ¶ 6. Eshelman founded Pharmaceutical Product
Development ("PPD"), a North Carolina-based global
contract pharmaceutical research organization. Id.
November 1, 2001, PPD contracted with Aventis
Pharmaceuticals, Inc. ("Aventis") to provide
clinical research services during a clinical trial to
determine the safety and effectiveness of the drug Ketek.
Id. ¶¶ 22-23. During the Ketek trial,
which occurred while Eshelman was CEO of PPD, a clinical
investigator falsified documents. Id. ¶¶
23-25. Eshelman alleges that in the course of a proxy
contest, Puma posted a link on its investor-relations website
to download an "Investor Presentation" that falsely
stated or gave the impression that Eshelman had been
personally and culpably involved in the Ketek clinical-trial
fraud, when in fact PPD had been the victim of the fraud.
Id. ¶¶ 46-82.
January 12, 2017, Puma moved the court to compel Eshelman to
produce a privilege log corresponding to documents withheld
from production on the basis of attorney-client privilege in
response to Puma's Requests for Production of Documents
("RFPs") 19, 20, 22-30 and 40. [DE-74]; Ex. A
[DE-74-1] at 8-13; Ex. B [DE-74-2] at 2-3. According to Puma,
the RFPs at issue seek documents related to the proxy contest
and are crucial to Puma's defense that its response to
Eshelman's proxy contest was appropriate and accurate.
[DE-75]. Eshelman responded in opposition to Puma's
motion, asserting that he raised valid objections to the RFPs
at issue and, consequently, pursuant to the parties'
agreement memorialized in their Joint Discovery Plan [DE-37],
no privilege log was required. [DE-76] at 1.
February 21, 2017, Puma answered Eshelman's complaint and
asserted counterclaims of libeller se and libeller
quod against Eshelman on the basis of statements he
made on November 30, 2015 and January 4, 2016, during the
proxy contest. [DE-86] ¶¶ 25-73. On March 19, 2017,
Eshelman withdrew his opposition to Puma's motion to
compel a privilege log, explaining that the scope of
discovery had changed in light of Puma's counterclaims
and that Eshelman would produce a privilege log to Puma,
thereby mooting Puma's motion. [DE-102]. On June 7, 2017,
in the court's order on other disputed discovery matters,
Puma's motion to compel was denied as moot. [DE-115].
12, 2017, the court dismissed Puma's counterclaims
against Eshelman as time-barred, [DE-116] at 9-10, 12-13, and
on June 16, 2017, Puma filed the instant motion renewing its
motion to compel Eshelman to produce a privilege log
[DE-117]. According to Puma, Eshelman never produced a
privilege log as previously agreed. Id.; Ex. E
[DE-74-5]. Eshelman objects to the renewed motion on the
grounds that the dismissal of Puma's counterclaims places
the requested documents beyond the appropriate and
proportional scope of discovery. [DE-118].
contends the RPPs at issue seek documents related to the
proxy contest by Eshelman and are central to Puma's
defense that its "Investor Presentation accurately
exposed Eshelman's misstatements and mischaracterizations
during the proxy contest, thus providing necessary context to
the statements made in the January 7, 2016 Investor
Presentation regarding the Ketek clinical trials, which Dr.
Eshelman claims are defamatory." [DE-75] at 2-3. Puma
argues further that Eshelman's agreement to produce
non-privileged documents related to the proxy contest,
regardless of whether they also relate to the Ketek trial,
evidences the unfounded nature of his objection to producing
a privilege log. Id. at 3-4; Ex. C [DE-74-3].
Finally, Puma concludes that Eshelman's failure to
produce a privilege log impedes its ability to assess the
validity of Eshelman's privilege claims. [DE-75] at 4-5.
to Rule 34, a party asserting an objection to a document
request "must specify the part [to which it objects] and
permit inspection of the rest." Fed.R.Civ.P.
34(b)(2)(C). When a privilege objection is asserted, the
party "must expressly assert it in response to the
particular discovery request involved and serve with its
discovery responses a privilege log in conformance with
Fed.R.Civ.P. 26(b)(5)(A)." Spring v. Bd. of Trs. of
Cape Fear Cmty. Coll., No.7:15-CV-84-BO, 2016 WL
1389957, at *2 (E.D. N.C. Apr. 7, 2016). A proper privilege
log must "describe the nature of the documents,
communications, or tangible things not produced or
disclosed-and do so in a manner that, without revealing
information itself privileged or protected, will enable other
parties to assess the claim." Fed.R.Civ.P. 26(b)(5)(A).
Failure to timely serve a privilege log meeting the
requirements of Rule 26(b)(5)(A) may be deemed a waiver of
the privilege. Mezu v. Morgan State Univ., 269
F.R.D. 565, 577 (D.Md. 2010) ("Absent consent of the
adverse party, or a Court order, a privilege log... must
accompany a written response to a Rule 34 document production
request, and a failure to do so may constitute a forfeiture
of any claims of privilege.") (citations omitted);
PCS Phosphate Co., Inc. v. Am. Home Assurance Co.,
No. 5:14-CV- 99-D, 2015 WL 8490976, at *3 (E.D. N.C. Dec. 10,
parties in their Joint Discovery Plan agreed to the following
exceptions to their obligation to produce a privilege log:
Privilege Logs. Except as ordered by the Court for
good cause shown, the parties agree that they will not
produce or prepare privilege logs with respect to: (a)
documents prepared by the below counsel of record in this
litigation in anticipation of this litigation; (b) emails or
other communications exchanged with the below counsel of
record in this litigation; or (c) documents or information
withheld on the basis of an objection other than privilege or
protection of the attorney work product doctrine.
[DE-37] at 2 (emphasis added). The court approved the
parties' Joint Discovery Plan, with modifications
regarding matters not at issue here, in the September 16,
2016 Scheduling Order. [DE-54]. Under Rule 29(b), the
parties' stipulations in the Joint Discovery Plan are
effective unless otherwise ordered by the court. Fed.R.Civ.P.
29(b) ("Unless the court orders otherwise, the parties
may stipulate that... procedures governing or limiting
discovery be modified ...."). Other courts have observed
that, pursuant to Rule 29, the parties' stipulation
should be followed so long as it does not run afoul of the
local rules or the judge's preferences. See e.g.,
Stroup v. United Airlines, Inc., 2016 WL 7176717, at *4
n.l 1 (D. Col. Sept. 16, 2016) ("Unless a stipulated
protective order runs afoul of or purports to supersede [a
local rule] or the presiding judge's individual practice
standards, the court has little reason to ...