THERAPURE BIOPHARMA INC. Plaintiff, v. DYNPORT VACCINE COMPANY, LLC Defendant RDB-19-2092 United States District Court, D. Maryland Filed May 19, 2021 Counsel John L. Roach, IV, Jessica C. Abrahams, Pro Hac Vice, Lora A. Brzezynski, Michelle Y. Francois, Pro Hac Vice, Faegre Drinker Biddle and Reath LLP, Washington, DC, Andrew P. Reeve, Pro Hac Vice, Faegre Drinker Biddle and Reath LLP, Philadelphia, PA, Ryan M. Hurley, Pro Hac Vice, Faegre Drinker Biddle and Reath LLP, Indianapolis, IN, for Therapure. Amit B. Patel, Pro Hac Vice, Jenner and Block LLP, Chicago, IL, Emily Savner, Loreal Rock, Michael A. Doornweerd, Pro Hac Vice, Previn Warren, Pro Hac Vice, Tassity Johnson, Pro Hac Vice, Laurel A. Raymond, Pro Hac Vice, Jenner and Block LLP, Washington, DC, for DynPort Vaccine Co. Boardman, Deborah L., United States Magistrate Judge LETTER ORDER *1 Dear Counsel, On June 15, 2020, Gary Nabors, Ph.D., the former president of DynPort Vaccine Company, LLC (“DVC”) sent an email to Mary Hart, Ph.D., the Chief Scientific Officer of DVC. On June 16, 2020, Dr. Hart sent a reply. In discovery, DVC inadvertently produced the emails to Therapure Biopharma, Inc. (“Therapure”). On April 29, 2021, the parties notified me that they dispute whether the attorney–client privilege or the work product doctrine protects the emails and whether DVC can invoke the clawback provision of the Court's Rule 502(d) Order, ECF 67, as it attempted to do on April 11, 2021. ECF 104. The parties filed position letters regarding DVC's privilege assertion. ECF 106 and 107. Plaintiff submitted the emails for in camera review. I have reviewed the letters and the emails. For the following reasons, I find that the emails are protected from disclosure based on the attorney–client privilege and the work product doctrine. DVC's request to claw back the emails is granted. The Court's Rule 502(d) order provides that “any Document(s) the producing party claims as Privileged or Protected shall, upon written request, promptly be returned to the producing party and/or destroyed, at the producing party's option,” unless the party that received the document challenges the assertion of privilege. Rule 502(d) Order ¶ 2. When there is a challenge, the parties shall comply with, and the requesting party may promptly seek a judicial determination of the matter pursuant to, Fed. R. Civ. P. 26(b)(5)(B). In assessing the validity of any claim of Privilege or Protection, the court shall not consider the provisions of Fed. R. Evid. 502(b)(1) and (2), but shall consider whether timely and otherwise reasonable steps were taken by the producing party to request the return or destruction of the Document once the producing party had actual knowledge of (i) the circumstances giving rise to the claim of Privilege or Protection and (ii) the production of the Document in question. Id. Rule 26(b)(5)(B) states: If information produced in discovery is subject to a claim of privilege or of protection as trial-preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information to the court under seal for a determination of the claim. The producing party must preserve the information until the claim is resolved. Fed. R. Civ. P. 26(b)(5)(B). DVC contends the emails are protected from disclosure by the attorney–client privilege and work product doctrine. Therapure argues that DVC has not shown that the emails are, in whole or in part, protected by the attorney–client privilege or the work product doctrine. Therapure insists that, even if the emails are protected by the work product doctrine, Therapure has demonstrated a substantial need for the information. Therapure has alleged that DVC “issued ... stop work orders for a total stop-work period of ten months, during which Therapure was required to maintain a ‘stand ready’ state” in which “Therapure would be prepared to resume performance immediately at the lifting of the stop work order.” Am. Compl. ¶ 6, ECF 27. Therapure contends that DVC has taken the position in this litigation that it did not direct Therapure to stand ready and that it, therefore, needs the emails to refute that position. Pl.’s Ltr. 1. DVC counters that, insofar as the emails contain a statement that “support[s] [Therapure's] claim that it was instructed to ‘stand ready,’ ” the statement is “the opinions of an in-house lawyer rendered years after the alleged events” and therefore does “not constitute probative and admissible evidence on this issue, especially given the mountain of contrary evidence.” Def.’s Ltr. 2. *2 Rule 26(b) provides that parties “may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense ....” Fed. R. Civ. P. 26(b)(1). One privilege is the attorney–client privilege, which applies to communications in confidence between privileged persons to seek, obtain, or provide legal assistance. See Richardson v. Sexual Assault/Spouse Abuse Res. Ctr., 764 F. Supp. 2d 736, 742 (D. Md. 2011). There are four required elements to establish attorney–client privilege: (1) a communication; (2) made between privileged persons; (3) in confidence; (4) for the purpose of seeking, obtaining, or providing legal assistance to the client. Id. at 742; see United States v. Jones, 696 F.2d 1069, 1072 (4th Cir. 1982) (per curiam). Additionally, privilege must be affirmatively raised and cannot have been waived. Richardson, 764 F. Supp. 2d at 742. “The burden is on the proponent of the privilege to demonstrate ‘not only that an attorney-client relationship existed, but also that the particular communications at issue are privileged and that the privilege was not waived.’ ” Neuberger Berman Real Est. Income Fund, Inc. v. Lola Brown Tr. No. 1B, 230 F.R.D. 398, 409 (D. Md. 2005) (quoting United States v. Jones, 696 F.2d 1069, 1072 (4th Cir. 1982)). To do so, the party asserting privilege must “explain, through ex parte submissions if necessary to maintain confidentiality, the significance or meaning of an otherwise cryptic document.” Id. (quoting United States v. (Under Seal), 748 F.2d 871, 876 (4th Cir. 1984)). The inadvertently disclosed emails are correspondence between DVC's former president and its chief scientific officer. Communications among corporate executives, but not counsel, “may be privileged if made at the direction of counsel, to gather information to aid counsel in providing legal services.” Sky Angel U.S., LLC v. Discovery Commc'ns, LLC, 28 F. Supp. 3d 465, 486 (D. Md. 2014) (quoting In re Rivastigmine Patent Litig., 237 F.R.D. 69, 80 (S.D.N.Y. 2006)), aff'd, 885 F.3d 271 (4th Cir. 2018); see also In re Smith & Nephew Birmingham Hip Resurfacing Hip Implant Prod. Liab. Litig., No. 17-MD-2775, 2020 WL 3073316, at *2 (D. Md. June 10, 2020) (noting “attorney-client privilege also protects communications ‘made by and to non-attorneys serving as agents of attorneys in internal investigations’ ” (quoting In re Kellogg Brown & Root, Inc., 756 F.3d 754, 758 (D.C. Cir. 2014)); Richardson, 764 F. Supp. 2d at 742 (noting that the attorney–client privilege applies to certain communications with an attorney or “the attorney's subordinate acting in the attorney's stead”); F.C. Cycles Int'l, Inc. v. Fila Sport, S.p.A., 184 F.R.D. 64, 71 (D. Md. 1998) (“The communications retain their privileged status if the information is relayed from a non-lawyer employee or officer to other employees or officers of the corporation on a need to know basis.”). The extension of the privilege beyond communications with counsel is consistent with “the purpose underlying the privilege,” as “the attorney-client privilege ‘rests on the need for the advocate and counselor to know all that relates to the client's reasons for seeking representation if the professional mission is to be carried out.’ ” In re Allen, 106 F.3d 582, 606 (4th Cir. 1997) (quoting Trammel v. United States, 445 U.S. 40, 51 (1980)). Stated differently, “the privilege exists to protect not only the giving of professional advice to those who can act on it but also the giving of information to the lawyer to enable him to give sound and informed advice.” Id. (quoting Upjohn v. United States, 449 U.S. 383, 390 (1981)). Thus, “[a] document need not be authored or addressed to an attorney in order to be properly withheld on attorney-client privilege grounds.” ... “[I]n instances where the client is a corporation, documents subject to the privilege may be transmitted between non-attorneys to relay information requested by attorneys.” In addition, “documents subject to the privilege may be transmitted between non-attorneys (especially individuals involved in corporate decision-making) so that the corporation may be properly informed of legal advice and act appropriately.” *3 Bluestem Brands, Inc. v. Merkle, Inc., No. ELH-13-0185, 2014 WL 12736150, at *2 (D. Md. Nov. 19, 2014) (quoting Santrade, Ltd. v. Gen. Electric Co., 150 F.R.D. 539, 545 (E.D.N.C. 1993)). When a party contends that “communications [were] created at the direction of inhouse counsel,” the court “must be wary that the involvement of the attorney is not being used simply to shield corporate communications from disclosure.” Sky Angel U.S., 28 F. Supp. 3d at 486 (quoting In re Rivastigmine Patent Litig., 237 F.R.D. at 80). Privileged matters also include those protected by the work product doctrine, “a qualified privilege” that applies to “certain materials prepared by an attorney ‘acting for his client in anticipation of litigation.’ ” In re Search Warrant Issued June 13, 2019, 942 F.3d 159, 173–74 (4th Cir. 2019), as amended (Oct. 31, 2019) (quoting United States v. Nobles, 422 U.S. 225, 237–38 (1975) (quoting Hickman v. Taylor, 329 U.S. 495, 508 (1947))). A document is prepared “in anticipation of litigation” if it is “prepared because of the prospect of litigation when the preparer faces an actual claim or a potential claim following an actual event or series of events that reasonably could result in litigation.” Nat'l Union Fire Ins. Co. of Pittsburgh, Pa. v. Murray Sheet Metal Co., 967 F.2d 980, 984 (4th Cir. 1992) (emphasis in original). Pursuant to the work product doctrine, which has been incorporated into the Federal Rules of Civil Procedure at Rule 26(b)(3), “an attorney is not required to divulge, by discovery or otherwise, facts developed by his efforts in preparation of the case or opinions he has formed about any phase of the litigation.” Chaudhry v. Gallerizzo, 174 F.3d 394, 403 (4th Cir. 1999) (quoting In re Doe, 662 F.2d 1073, 1077 (4th Cir. 1981)); see Fed. R. Civ. P. 26(b)(3). The work product doctrine also “protects work product completed ... for attorneys.” In re Smith & Nephew, 2020 WL 3073316, at *2 (citing Koch v. Specialized Care Servs., Inc., 437 F. Supp. 2d 362, 387 n.39 (D. Md. 2005)). The burden is on the party seeking the doctrine's protection to demonstrate that it applies. Solis v. Food Employers Labor Relations Ass'n, 644 F.3d 221, 232 (4th Cir. 2011). The law distinguishes between fact work product and opinion work product. Fact work product “is ‘a transaction of the factual events involved,’ ” whereas opinion work product “ ‘represents the actual thoughts and impressions of the attorney.’ ” In re Search Warrant Issued June 13, 2019, 942 F.3d at 174 (quoting In re Grand Jury Subpoena, 870 F.3d 312, 316 (4th Cir. 2017) (internal quotation marks omitted)). The Court may compel production of fact work product “in limited circumstances, where a party shows ‘both a substantial need and an inability to secure the substantial equivalent of the materials by alternate means without undue hardship.’ ” Id. (quoting In re Grand Jury Subpoena, 870 F.3d at 316); see Fed. R. Civ. P. 26(b)(3)(A). Opinion work product is afforded far more protection than fact work product. See Fed. R. Civ. P. 26(b)(3)(B). It “ ‘enjoys a nearly absolute immunity’ and can be discovered by adverse parties ‘only in very rare and extraordinary circumstances.’ ” In re Search Warrant Issued June 13, 2019, 942 F.3d at 174 (quoting In re Grand Jury Subpoena, 870 F.3d at 316). *4 Here, the June 15 and 16, 2020 emails between DVC executives were exchanged eleven months after Therapure filed this lawsuit and fifteen months after the parties’ contractual relationship was terminated. See Compl., ECF 1 (filed July 16, 2019; alleging agreement was terminated in March 2019). Dr. Nabors emailed Dr. Hart to prepare for a meeting the next day with DVC's inhouse counsel Mark Davis and outside counsel Jenner & Block regarding the company's response to the complaint. In preparation for the meeting with counsel, Dr. Nabors asked Dr. Hart to identify people with knowledge of the company's history with Therapure. He then summarized his communications with inhouse counsel Mark Davis, Mr. Davis's impressions of the lawsuit, possible defenses, and legal strategy, Mr. Davis's communications with outside counsel, Jenner & Block, and upcoming deadlines in the lawsuit. In response, Dr. Hart provided Dr. Nabors with names of people with whom the attorneys might want to speak. This information between two high-level DVC executives, which related solely to the pending lawsuit and discussions with counsel, was exchanged for the purpose of obtaining responsive information “to aid counsel in providing legal services.” See Sky Angel U.S., 28 F. Supp. 3d at 486; Bluestem Brands, 2014 WL 12736150, at *2 (finding privilege where emails among company executives “either (1) contain[ed] the advice of counsel; or (2) [sought] information required to obtain the advice of counsel”). Given that context, and after reviewing the emails, I find that the correspondence between the two DVC executives is protected by the attorney–client privilege. See In re Smith & Nephew, 2020 WL 3073316, at *2 (holding that attorney–client privilege applied where “non-attorney members of [a] leadership team [that defendant created] and their direct reports collected information and presented it to the ... leadership team as agents of the attorneys and at the direction of the attorneys); Bluestem Brands, 2014 WL 12736150, at *2; Sky Angel U.S., 28 F. Supp. 3d at 486; Richardson, 764 F. Supp. 2d at 742. Thus, defendant properly asserted the attorney–client privilege to claw back the emails. Alternatively, the emails constitute opinion work product because Dr. Nabors relays “the actual thoughts and impressions” of DVC's inside and outside counsel regarding DVC's possible claims and defenses and litigation strategy. See In re Search Warrant Issued June 13, 2019, 942 F.3d at 174 (quoting In re Grand Jury Subpoena, 870 F.3d at 316); see also In re Smith & Nephew, 2020 WL 3073316, at *2. Indeed, the attorneys shared their impressions and sought information from DVC's executives as they prepared to file their answer and other papers with the Court. Even though Therapure claims it needs these emails to prove it was ordered into a stand ready state, Therapure has not shown the “very rare and extraordinary circumstances” necessary to overcome the “nearly absolute immunity” shrouding this opinion work product. See In re Search Warrant Issued June 13, 2019, 942 F.3d at 174 (quoting In re Grand Jury Subpoena, 870 F.3d at 316). Finally, even if the documents were not protected by the attorney–client privilege or work product doctrine, they are not relevant to a pending claim or defense. I am not convinced that statements by DVC's President—made more than a year after the termination of the contractual relationship and one year after the complaint was filed—that summarize the executive's impression of inhouse counsel's views on how to respond to allegations in a complaint are relevant. Although informal, this is an Order of the Court and shall be docketed as such.