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In re Smith & Nephew Birmingham Hip Resurfacing (BHR) Hip Implant Prods. Liab. Litig.

United States District Court for the District of Maryland

May 31, 2019, Decided; May 31, 2019, Filed

MDL No. 2775; Master Docket No. 1:17-md-2775




Pending before the court are the plaintiffs' two letter motions to compel (ECF Nos. 1204 & 1475). The plaintiffs seek [*26]  to obtain various documents from Smith & Nephew, which Smith & Nephew has alleged are covered by either attorney-client privilege, work-product protection, or both. The issues have been briefed fully and oral argument was heard.


The plaintiffs seek to compel production of several documents from Smith & Nephew. These documents include: (1) the "Metal-on-Metal Hip Arthroplasty, a Briefing Document" [the "Briefing Document"]; (2) Board of Director Meeting Minutes ["Meeting Minutes"] from April 12, 2012, October 31, 2012, and July 31, 2013; and (3) eight copies of a PowerPoint presentation that was presented to the Board of Directors in conjunction with the Briefing Document.

As background, in 2012, litigation was both pending and anticipated against Smith & Nephew related to its "Metal-on-Metal" ("MoM") hip replacement devices. (See Def.'s Resp. Opp'n Pls.' Mot. Ex A Campo Decl. ¶ 4, ECF No. 1317-1; id. Ex B Austin Decl. ¶ 4, ECF No. 1317-2).1 The Briefing Document originated from a request by internal Smith & Nephew counsel to outside counsel at Freshfields Bruckhaus Deringer LLP ("Freshfields") for assistance and legal advice to the Smith & Nephew Board of Directors regarding [*27]  current and anticipated litigation issues. Freshfields drafted a document, which was marked "legally privileged and confidential." (Def.'s Resp. at 7, ECF No. 1317 (citing Campo Decl. ¶ 4)). Smith & Nephew, in consultation with Freshfields, decided to expand this document into what became the Briefing Document. (See Austin Decl. ¶ 9). It appears that Blair Fraser of Smith & Nephew was involved with the collection and incorporation of additional information, including clinical summaries, into the document. (See Pls.' Letter Brief Ex D ["Fraser Dep."] at 12-14, ECF No. 1205-1). Drafts were circulated to in-house and outside counsel for comments. (See Austin Decl. ¶¶ 9-10). In its final form, the Briefing Document consists of sixty-two pages, prefaced by an Executive Summary. It is dated March 4, 2012.

The Meeting Minutes range in length from six to nine pages. Most of the contents of the Meeting Minutes were redacted from Smith & Nephew's in camera submission as non-responsive.2 A portion of the April 12, 2012, minutes, however, summarize a presentation by Chief Legal Officer John W. Campo, Jr., related to the Briefing Document. (Pls.' Letter Brief Ex E at 4, ECF No. 1205-2; Campo [*28]  Decl. ¶ 6). Mr. Campo called on Dr. A Weymann to present a PowerPoint summary of certain aspects of the Briefing Document. (Id.). The October 31, 2012, and July 31, 2013, minutes also reflect legal presentations by Mr. Campo. (Campo Decl. ¶ 7).

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2019 U.S. Dist. LEXIS 91795 *; 2019 WL 2330863


Prior History: In re Smith & Nephew BHR & R3 Hip Implant Prods. Liab. Litig., 249 F. Supp. 3d 1348, 2017 U.S. Dist. LEXIS 52785 (J.P.M.L., Apr. 5, 2017)


presentation, work-product, disclosure, legal advice, attorney-client, documents, Minutes, inadvertent, work product, anticipated, outside counsel, discovery, copies