Oral arg. – MSSC – 6/27/2018

At 10:30 the MSSC will hear the case of Fresenius Medical Care Holdings, Inc. v. Jim Hood and the State of Mississippi.  This is actually two interlocutory appeals out of the same litigation.

The State of Mississippi sued Fresenius which manufactures products used in hemodialysis treatments for patients suffering from end-stage renal disease alleging that the  Fresenius product Granuflo is defective. that Fresenius failed to provide adequate warnings about Granuflo, that Granuflo harmed Mississippi patients, and that the State paid for patients covered by Medicaid and the State Health Plan.

Interlocutory appeal 1 concerns a privilege log that was compiled by Fresenius in this litigation.

As Fresenius describes the issue:

The privilege log included entries for certain email chains, as well as entries
for emails with attachments, among other entries.

Consistent with the practice approved by courts across the country, Fresenius identified the  most recent message in an email chain. For a privileged email with an attachment, Fresenius noted the existence of the attachment and provided details concerning the overall communication, but did not make a separate entry for the attachment itself. The State demanded that Fresenius separately identify each individual email in the email chains shown on the log, and each attachment
noted on the log—a task that would have required significant additional time and expense to review thousands of individual emails and attachments and potentially add thousands of duplicative entries to the log.

At the State’s request, the Chancery Court ordered Fresenius to produce all of
the emails and attachments that were not given their own separate entries on the privilege log. In other words, based on a perceived technical violation of unspecified rules governing privilege logs, the Court found a blanket waiver of the attorney-client privilege—what it called the “death penalty” for discovery violations.


Fresenius’ brief

The AG’s brief is filed under seal

Fresenius’ reply brief

Interlocutory appeal no. 2

Fresenius withheld certain documents called  Attorney Notifications and Public Comment Advice documents on the basis of  attorney-client privilege and the work product doctrine.  The chancellor appointed a special master to review the documents. Fresenius argues that the Chancery Court violated MRCP  53  “by adopting the Special Master’s Recommendation before the Special Master filed the record with the clerk and before the parties even had a chance to review the Recommendation, let alone file written objections, thereby tainting its further decisions with respect to the same issues.”

Fresenius’ brief

The AG’s brief is filed under seal

Fresenius’ reply brief is also filed under seal

Watch the argument here

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