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The expense of document production...

...is only larger when it comes to preserving the attorney-client privilege. Attorney David Booth Alden writes an exceptionally perceptive post on the subject:

Merck produced an inspirational volume of non-privileged documents � over two million documents. It withheld based on claims of privilege or protection only a relatively small number of documents � 30,000 or 1.5% of the total. All of this occurred in time periods that, given the volumes of documents involved, were short.

Once the district court started down the road to resolving all of Merck�s privilege claims, whether by reviewing the documents itself or by having the special master review �sample� or �representative� documents that would serve as a basis for �extrapolating� to other documents, Merck had little or no chance. Given the volumes of privileged documents that are withheld in response to the sweeping document requests typically seen in major litigation � tens of thousands of documents in In re Vioxx � it is prohibitively expensive for a privilege-holder to explain and provide factual support for each privilege claim. Even properly logging that many documents is a major undertaking, particularly because, as the Special Master�s guideline required, each communication within in every multi-part e-mail string should be separately identified and logged, producing the non-privileged parts and redacting the privileged ones. While the In re Vioxx district court and special master repeatedly expressed surprise at Merck�s failure to provide more fulsome and timely factual support for its privilege claims, I don�t find it the least bit surprising. Indeed, I strongly suspect that Merck�s attorneys worked unbelievably long hours and, in their view, did all they could.

Read the whole thing. See also earlier discussion at Overlawyered on Aug. 16. Evan Schaeffer gives the Vioxx-specific perspective of a plaintiffs' attorney with an inventory of Vioxx cases.



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.