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Chicago IP Litigation Tracking Northern District of Illinois IP Cases

Draft Expert Reports Protected as Work Product

Posted in Discovery, Federal Rules

The Medicines Co. v. Mylan, Inc., No. 11 C 1285, Slip Op. (N.D. Ill. June 13, 2013) (St. Eve, J.).

Judge St. Eve denied plaintiff The Medicines Company’s (“TMC”) motion to compel discovery withheld as privileged in this patent dispute.  Initially, the Court held that TMC failed to comply with Local Rule 37.2 by filing its motion to compel without having a meet and confer.  But the Court addressed the merits of the motion to avoid “needless delay.”

Drafts of defendant Mylan’s expert report were not discoverable.  Mylan’s counsel had not written the reports, they had merely provided a prior declaration, portions of which were used verbatim in the report.  TMC was, however, free to impeach the expert based upon his copying of the declaration.  Finally, TMC did not show the “substantial need” required to overcome the Rule 16(b) protections of the draft reports.