UNITED STATES DISTRICT COURT

THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

IN RE: DAVOL, INC./C.R. BARD, 

INC., POLYPROPYLENE HERNIA 

MESH PRODUCTS LIABILITY 

LITIGATION

This document relates to: 

ALL CASES.

Case No. 2:18-md-2846

Judge Edmund A. Sargus, Jr. 

Magistrate Judge Kimberly A. Jolson

OPINION AND ORDER

This matter is before the Court on the Notice of Plaintiffs’ Steering Committee’s Petition 

for Expedited In Camera Review of Challenges to Documents Listed on Defendants’ Privilege 

Log 1 and 2 Pursuant to CMO No. 17 (Doc. 218). The Court construes the Notice as a Motion to 

Compel. For the following reasons, the Motion is GRANTED in part and DENIED in part.

I. BACKGROUND

The parties’ dispute centers on a number of documents that Defendants initially withheld 

as privileged. The Court addressed the majority of these documents during a telephonic status 

conference with the parties on September 12, 2019, and granted Defendants the opportunity to 

submit a brief addressing the two remaining documents, MPPE-08482702 and MPPE-08473004.

MPPE-08482702 is a 2013 email thread about a Bloomberg News Article discussing a 

trial concerning Defendant Bard’s polypropylene mesh. Defendants have agreed to produce a 

redacted version of that email thread but maintain that one of the emails in that thread is, in fact, 

privileged. The purportedly privileged email is from Gary Dolch (the “Dolch Email”), Defendant 

Bard’s Vice President of Quality, to a number of high-level executives at Defendant Bard, 

including Greg Dadika (Associate General Counsel), Andrea Casper (Vice President Regulatory
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Affairs), John DeFord (Senior Vice President, Technology & Clinical Affairs), Tim Ring 

(Chairman and CEO), John Weiland (Vice Chairman, President and Chief Operating Officer), John 

Groetelaars (Group Vice President), and Peter Curry (President Bard Medical Division). The 

Dolch Email was also sent to John Lowry at Cardinal Health. Generally, the Dolch Email outlines 

a plan for gathering information to issue a press statement in response to the Bloomberg News 

article.

MPPE-08473004 is an email thread regarding a meeting at Defendant Bard’s Law 

Department (the “Simunovich Email”). It was sent to, among others, Ami Simunovich, Associate 

General Counsel, Regulatory & Compliance, for Defendant Bard. Although initially Defendants 

withheld this document, they have agreed to produce it “as long as there is no waiver of attorneyclient privilege as to the [attached] PowerPoint presentation or the substance of the meeting itself.” 

Defendants have submitted an Ex Parte Response to the PSC’s Motion. The Motion is, 

therefore, ripe for resolution. 

II. STANDARD OF REVIEW

“Determining the proper scope of discovery falls within the broad discretion of the trial 

court.” Gruenbaum v. Werner Enter., Inc., 270 F.R.D. 298, 302 (S.D. Ohio 2010) (citing Lewis v. 

ACB Business Servs., Inc., 135 F.3d 389, 402 (6th Cir. 1998)). Under Rule 26(b), “[p]arties may 

obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense 

and proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1). “On notice to other parties 

and all affected persons, a party may move for an order compelling disclosure or discovery.” Fed. 

R. Civ. P. 37(a)(1). “The burden of establishing the attorney-client privilege rests with the party 

asserting it.” M.H. v. Akron City Sch. Dist. Bd. of Educ., No. 5:18-CV-870, 2019 WL 4346274, at 

*1 (N.D. Ohio Sept. 12, 2019) (citing Columbia/HCA Healthcare Corp. Billing Practices Litig., 
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293 F.3d 289, 294 (6th Cir. 2002)); see also McCall v. Procter & Gamble Co., No. 1:17-CV-406,

2019 WL 3997375, at *2 (S.D. Ohio Aug. 22, 2019) (“The burden of establishing a claim of 

privilege rests with the party asserting it ... If a claim of privilege is challenged, the party asserting 

it must establish each element by competent evidence.” (internal citations omitted)).

III. ANALYSIS

A. Choice of Law

At the outset, the Court must determine what law governs Defendants’ claims of privilege. 

The PSC appears to rely on general common law principles to support its Motion. (See, e.g., Doc. 

218 at 5–6 (citing Sixth Circuit case law regarding privilege)). In contrast, Defendants maintain 

that New Jersey state law controls the privilege analysis.

Federal Rule of Evidence 501 provides that “in a civil case, state law governs privilege 

regarding a claim or defense for which state law supplies the rule of decision.” Fed. R. Evid. 501. 

Determining which state law applies “is complicated in the MDL context, where cases originate 

in many different states.” In re: Bard IVC Filters Prod. Liab. Litig., No. MDL 15-2641 PHX 

DGC, 2016 WL 3970338, at *1 (D. Ariz. July 25, 2016); see also In Re Conagra Peanut Butter 

Prod. Liab. Litig., No. 1:07 MD 1845 TWT, 2009 WL 799422, at *1 (N.D. Ga. Mar. 24, 2009)

(acknowledging that the choice of law analysis in an MDL can be “very complicated” because of 

the number of different states involved). Courts have applied varied approaches to address this 

issue. See Bard IVC Filters, 2016 WL 3970338, at *2 (looking to the transferor states’ choice of 

law rules to determine privilege law to apply and applying the Restatement’s most significant 

relationship test “as best representative of the choice of law rules applied by the various states”); 

U.S. Surety Co. v. Stevens Family Ltd., No. 11-C-7480, 2014 WL 902893, at *1 (N.D. Ill. Mar. 7, 

2014) (applying the privilege law of the state that supplies the substantive rule of decision); In re 
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Vioxx Prods. Liab. Litig., MDL No. 1657, 501 F. Supp. 2d 789, 791–92 (E.D. La. 2007) (applying 

generally-known principles of the attorney-client privilege); In re Baycol Prods. Litig., MDL No. 

1431, 2003 WL 22023449, at *1–2 (D. Minn. Mar. 21, 2003) (applying the choice-of-law rules of 

the state where the transferee court sits).

The Court adopts the Bard IVC Filters’ approach. Although future briefing may lead the 

Court to reconsider this decision, it is satisfied that the choice of law analysis is of limited 

significance here because the dispute between the party is resolved by basic principles of privilege 

that are similar, if not identical, regardless of the source of the law being applied. See Conagra 

Peanut Butter, 2009 WL 799422, at *1 (citation and alteration omitted) (“For purposes of this 

motion, the elements of the attorney-client privilege are well-known and are not, in any material 

respect, disputed here.”).

Under the Bard IVC Filters’ approach, “the law of the state with the most significant 

relationship to the communication will govern the existence and scope of attorney-client 

privilege.” 2016 WL 3970338, at *1 (citation and quotations omitted). Here, Defendant Bard is 

headquartered in New Jersey, and the communication took place among Defendant Bard’s highlevel executives, who were presumably working from headquarters. The Court applies New 

Jersey’s privilege law accordingly. See Restatement (Second) of Conflict of Laws § 139, 

Comment e (Am. Law Inst. 1971) (“The state which has the most significant relationship with a 

communication will usually be the state where the communication took place, which, as used in 

the rule of this Section, is the state where an oral interchange between persons occurred, where a 

written statement was received or where an inspection was made of a person or thing ... If there 

was such a prior relationship between the parties, the state of most significant relationship will be 
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that where the relationship was centered unless the state where the communication took place has 

substantial contacts with the parties and the transaction.”). 

B. New Jersey Privilege Law

“New Jersey’s attorney-client privilege attaches to communications made between lawyers 

and clients ‘in the course of that relationship and in professional confidence.’” JNL Mgmt. LLC v. 

Hackensack Univ. Med. Ctr., No. 2:18-CV-5221-ES-SCM, 2019 WL 2315390, at *3 (D.N.J. May 

31, 2019) (quoting N.J.S.A. 2A:84A–20(1)). “[T]he attorney-client privilege generally applies to 

communications (1) in which legal advice is sought, (2) from an attorney acting in his capacity as 

a legal advisor, (3) and the communication is made in confidence, (4) by the client.” Hedden v. 

Kean Univ., 82 A.3d 238, 244 (N.J. Super. Ct. App. Div. 2013) (citation omitted); see also

Restatement (Third) of the Law Governing Lawyers § 68 (2000) (same). 

“The privilege extends to corporations and permits communications between an attorney 

and a corporation’s employees to be protected.” JNL Mgmt., 2019 WL 2315390, at *3 (citing 

Leonen v. Johns-Manville, 135 F.R.D. 94, 98 (D.N.J. 1990)). It “is not strictly limited to legal 

advice, but applies only to ‘situations in which lawful legal advice is the object of the 

relationship.’” JNL Mgmt., 2019 WL 2315390, at *3 (quoting Rivard v. Am. Home Prods., Inc., 

917 A.2d 286, 300 (N.J. Super. Ct. App. Div. 2007)). 

“Importantly, business advice is not protected by the attorney-client privilege because 

‘[o]nly if an attorney is acting as a lawyer and giving advice with respect to the legal implications 

of an issue may the privilege be properly invoked.’” JNL Mgmt., 2019 WL 2315390, at *3 (quoting 

In re Riddell Concussion Reduction Litig., No. 13-7585, 2016 WL 7108455, at *4 (D.N.J. Dec. 5, 

2016)). “This rule appears straight-forward, yet ‘its application is difficult, since in the corporate 

community, legal advice is often intimately intertwined with and difficult to distinguish from 
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business advice.’” JNL Mgmt., 2019 WL 2315390, at *3 (quoting Leonen, 135 F.R.D. at 98–99). 

“In determining whether advice is in the business versus legal context ‘the court’s inquiry is 

focused on whether the communication is designed to meet problems which can fairly be 

characterized as predominately legal.’” JNL Mgmt., 2019 WL 2315390, at *3 (quoting Leonen, 

135 F.R.D. at 99) (emphasis added); see also 1 Paul R. Rice et al., Attorney-Client Privilege: State 

Law New Jersey § 7:6 (2018) (citing Hedden, 82 A.3d at 245) (“Consistent with federal practice, 

New Jersey law considers the attorney-client privilege to apply only where the primary purpose of 

the communication is to obtain legal advice.”); 1 Edna Selan Epstein, Attorney-Client Privilege & 

the Work-Product Doctrine III.E4.A (6th ed. 2017) (“For the communication to be privileged, it 

must have been made primarily for the purpose of obtaining legal advice or services from the 

attorney.”). Ultimately, “[t]he claimant of the privilege ‘must demonstrate that the communication 

would not have been made but for the client’s need for legal advice or services.’” JNL Mgmt., 

2019 WL 2315390, at *3 (quoting Leonen, 135 F.R.D. at 99); see also 1 Edna Selan Epstein,

Attorney-Client Privilege & the Work-Product Doctrine III.E4.A (6th ed. 2017) (“How do courts 

go about determining whether the primary purpose of the communication was or was not to give 

legal advice? A frequent formulation is, would the communication have been made ‘but for’ the 

fact that legal advice was sought? If it would not, it will be privilege protected. If it would have 

been made in all events, the communication will generally not be privilege protected.”).

C. The Dolch Email

Although Defendants seek to redact the Dolch Email, in the Court’s view, its primary 

purpose was to develop business strategy, specifically a strategy for Defendant Bard’s public 

response to the Bloomberg News article. Mr. Dolch addressed the communication to a number of 

Defendant Bard’s high-level executives and identified information that he believed should be 
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included in any new press statement regarding the Bloomberg News article. It contains no explicit 

request for legal advice, and, on the evidence before the Court, any implicit request for legal advice 

is, at best, a secondary purpose of the Email. As a result, Defendants have failed to meet their 

burden to demonstrate that the Dolch Email was “designed to meet problems which can fairly be 

characterized as predominately legal” or that it “would not have been made but for the client’s 

need for legal advice or services.” JNL Mgmt., 2019 WL 2315390, at *3 (citation and internal 

quotations omitted); see also Rowe v. E.I. duPont de Nemours & Co., No. CIV.06-1810-RMDAMD, 2008 WL 4514092, at *9 (D.N.J. Sept. 30, 2008) (rejecting claim of privilege because 

“DuPont has not demonstrated that legal advice was the predominant purpose for this e-mail”).

Indeed, the only evidence supporting the argument that the Dolch Email is potentially 

privileged is the fact that it was addressed to Mr. Dadika, Defendant Bard’s in-house counsel, and 

labeled “Privileged Attorney – Client Communication.” But the law is clear the attorney-client 

“privilege does not apply simply because an attorney was involved in communications.” JNL 

Mgmt., 2019 WL 2315390, at *3 (citing Riddell Concussion Reduction, 2016 WL 7108455, at *3); 

see also United Jersey Bank v. Wolosoff, 483 A.2d 821, 826 (N.J. Super. Ct. App. Div. 1984) (“The 

mere fact that Mulligan is an attorney and served as the bank’s in-house counsel is clearly 

insufficient. So too, that Mulligan’s employment duties may have included responsibilities 

pertaining to pending litigation is not enough, by itself, to compel application of the privilege. 

Rather, judicial scrutiny must focus upon both the nature of the relationship between Mulligan and 

others and the type of information or communication involved.”). And Mr. Dolch’s use of the 

“Privileged Attorney – Client Communication” label is insufficient to establish privilege absent 
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something more. As a result, the Court finds that the Dolch Email is not privileged, and Defendants 

are ORDERED to produce MPPE-08482702 in its entirety.

Even if the Dolch Email were privileged, Defendants would still be required to produce it. 

“Privilege can be waived if the holder, ‘contracted with anyone not to claim the right or privilege 

or, [ ] without coercion and with knowledge of his right or privilege, made disclosure of any part 

of the privileged matter or consented to such a disclosure made by anyone.’” Ashland Inc. v. G-I 

Holdings Inc., No. A-4356-17T3, 2019 WL 1552750, at *2 (N.J. Super. Ct. App. Div. Apr. 10, 

2019) (quoting N.J.S.A. 2A:84A-29). “It follows, that ‘[t]he attorney-client privilege is ordinarily 

waived when a confidential communication between an attorney and a client is revealed to a third 

party’ unless the third party’s presence ‘is necessary to advance the representation.’” Ashland, 

2019 WL 1552750, at *2 (quoting O’Boyle v. Borough of Longport, 94 A.3d 299, 309 (N.J. 2014)); 

see also Matter of Adoption of Twp. of Monroe, No. A-2471-15T2, 2017 WL 3013358, at *5 (N.J. 

Super. Ct. App. Div. July 17, 2017) (quoting O’Boyle, 94 A.3d at 310) (“[T]he ‘presence of a 

stranger negates the privilege for communications made in the stranger’s presence.’”).

As previously noted, the Dolch Email was addressed to, among others, a third-party, John 

Lowry, a Cardinal Health employee. As a result, even if the Dolch Email was privileged, 

Defendants waived it here. See Ashland, 2019 WL 1552750, at *2. 

Defendants’ arguments to the contrary are unpersuasive. First, they argue, Federal Rule of 

Evidence 502(b) protects the privilege here because the disclosure of the Dolch Email to Mr. 

Lowry was inadvertent. But Rule 502(b) concerns inadvertent disclosure “[w]hen made in a 

federal proceeding or to a federal office or agency.” Fed. R. Evid. 502(b). In other words, Rule 

502(b) limits the consequences of inadvertent disclosure during the course of discovery. Because 

no federal proceeding was ongoing at the time of disclosure, and because the disclosure was not 
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made to a federal office or agency, Rule 502(b) does not apply in this instance. Moreover, 

Defendants have not presented any evidence to support this argument. Cf. 1 Paul R. Rice et al.,

Attorney-Client Privilege: State Law New Jersey § 9:22 (“The party claiming the privilege 

normally bears the burden of showing that it was not waived, following the presentation of a prima 

facie case of waiver by the opponent.”).

Second, Defendants contend that, “[e]ven if Mr. Dolch meant to copy John Lowry on the 

email, the privilege is still maintained because Cardinal Health, a distributor for Bard, had a 

confidential relationship with Bard.” Although they are not explicit, it appears Defendants are 

attempting to invoke the common interest rule, which “permits disclosure of privileged material, 

attorney-client confidential communications or work product, to third parties without waiving any 

privilege as long as the applicable features of the common interest rule in the jurisdiction are 

satisfied.” O’Boyle, 94 A.3d at 316. But that rule requires any disclosure of privileged information 

to be “made due to actual or anticipated litigation for the purpose of furthering a common interest,” 

and “in a manner to preserve the confidentiality of the disclosed material and to prevent disclosure 

to adverse parties.” Id. at 317. And Defendants have offered no evidence demonstrating that those 

requirements are satisfied here. Cf. Louisiana Mun. Police Employees Ret. Sys. v. Sealed Air 

Corp., 253 F.R.D. 300, 309 (D.N.J. 2008) (citing Greene, Tweed of Delaware, Inc. v. DuPont Dow 

Elastomers, 202 F.R.D. 418, 423 (E.D. Pa. 2001)) (holding that the party asserting common 

interest exception to rule that disclosure to third party waived attorney-client privilege bears “the 

burden to show that attorney-client privilege has not been waived”).

D. The Simunovich Email

Defendants have agreed to produce the Simunovich Email “as long as there is no waiver 

of attorney-client privilege as to the [attached] PowerPoint presentation or the substance of the 
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meeting itself.” Consistent with those reservations, Defendants are ORDERED to produce the 

Simunovich Email in its entirety.

IV. CONCLUSION

For the foregoing reasons, the PSC’s Motion to Compel (Doc. 218) is GRANTED in part 

and DENIED in part. Defendants are ORDERED to produce MPPE-08482702 and MPPE08473004 in their entirety.

Date: September 19, 2019 /s/ Kimberly A. Jolson

KIMBERLY A. JOLSON

UNITED STATES MAGISTRATE JUDGE