In re Cardinal Health, Inc., Sec. Litig.

In re Cardinal Health, Inc., Sec. Litig.

Opinion

ROBERT P. PATTERSON, JR., U.S.D.J.

Non-party Kramer Levin Naftalis & Frankel LLP ("Kramer Levin"), special counsel to the Audit Committee of the Board of Directors of Cardinal Health Inc. (the "Audit Committee") moves pursuant to Rule 45(c)(3)(A)(iii) of the Federal Rules of Civil Procedure to quash or modify a subpoena duces tecum (the "Subpoena") served by Plaintiffs' counsel in the Cardinal Health, Inc. Securities Litigation pending in the Southern District of Ohio (the "Underlying Litigation") as calling for the production of documents protected by the attorney-client privilege and/or work product doctrine.

By cross motion to compel Plaintiffs insist that 1) the documents are not entitled to any privilege and 2) Kramer Levin had waived any attorney-client [*2]  or work product privilege since Kramer Levin has previously disclosed the documents to the United States Securities and Exchange Commission ("SEC") and United States Attorney's Office for the Southern District of New York ("USAO").

I. FACTUAL BACKGROUND

In late 2003, the SEC began an inquiry into whether certain accounting practices at Cardinal were not in accordance with applicable laws and regulations, and requested production of documents from Cardinal. (Decl. of Arthur H. Aufses III, August 14, 2006 ("Aufses Decl.") P 4.) As Cardinal reviewed the documents to be produced, it discovered documents suggesting certain employees might have engaged in improper practices. (Id.) In April 2004, the Audit Committee of Cardinal's Board of Directors resolved to conduct its own independent investigation of these accounting practices and issues, and retained Kramer Levin to advise it. (Id.) ¹

 [*3]  Kramer Levin performed a number of legal services for the Audit Committee, including an investigation of the legal and accounting issues that the Cardinal documents had raised. (Id. at P 5.) Kramer Levin then obtained and reviewed and analyzed hundreds of thousands of Cardinal documents and interviewed dozens of present and former Cardinal employees. (Id.) It also retained forensic accountants at AlixPartners LLC ("AlixPartners"), who carried out work under Kramer Levin's direct supervision and who reported their findings directly to Kramer Levin. (Id.)

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