Wadler v. Bio-Rad Laboratories, Inc.

212 F. Supp. 3d 829 (2016)


D manufactures and sells products and equipment to hospitals, universities, and similar public entities and officials. D is subject to the Foreign Corrupt Practices Act (FCPA), which forbids D or its agents from engaging in bribery and kickback schemes involving public officials and requires that companies maintain accurate accounting records and put in place adequate internal controls or face significant fines and possible criminal punishment. P became D's general counsel in 1989 and served in that capacity for nearly 25 years. P was terminated. P asserts he was terminated because he was investigating potential FCPA violations in China. D contends it terminated P 'due to poor work performance and behavior.' Administrative proceedings were conducted by the SEC and DOJ. They were also the subject of a whistleblower complaint filed by P with the Department of Labor (DOL'), which P brought under the 2013 Sarbanes-Oxley Act. D asserted before the DOL that P did not use reasonable diligence in investigating D's activities in China and that his accusations were not made in good faith. D's outside counsel, Davis Polk & Wardwell (DPW) presented a 41-page Powerpoint presentation to the SEC on behalf of the Audit Committee. Despite discussing the merits of P's allegations in the DOL Response and supporting declarations, D argued that it had not waived attorney-client privilege. D stated that it has not authorized P to share any confidential information, and has not waived any protections over communications or materials protected by the attorney-client privilege, work product doctrine or any other protection, and does not intend to do so. Prior to filing the complaint P's counsel provided D with a copy of the complaint he intended to file to determine whether D had any privilege or confidentiality objections to it. D's counsel did not object to the public filing of the Complaint but informed P that there was a confidentiality objection to filing Exhibit B to the complaint. D filed a motion to dismiss and in it discussed many of P's substantive allegations without raising any objection on the basis of confidentiality or privilege. D also filed in the public record the same DOL Complaint it had earlier said disclosed attorney-client privileged materials and communications. The Court also approved a stipulation by the parties pursuant to Rule 502 of the Federal Rules of Evidence, negotiated at the urging of the Court, in which they agreed that production of documents in discovery would not, by itself, give rise to waiver of any attorney-client privilege or work product protections that might otherwise attach to those documents. D filed a Motion to Strike Rebuttal Report of Bradley Wendel which included a declaration with a number of unredacted expert declarations attached. These included reports by Dr. Emre Carr and Dr. Donald Walker addressing in detail P's communications with the Audit Committee and whether his concerns about potential FCPA violations in China were justified. D then filed the present motion to exclude all privileged and confidential information at trial.