Attorney-Requested Studies Not Shielded from Discovery in False Ad Suit

This posting was written by William Zale, Editor of CCH Advertising Law Guide.

Five scientific studies of the efficacy of a power toothbrush were not shielded from discovery by the attorney work product privilege, even though the studies were undertaken by the manufacturer (Ultreo) in consultation with outside counsel under the looming specter of litigation, the federal district court in New York City has ruled.

A competitor (Procter & Gamble) sought disclosure of the studies in its Lanham Act false advertising suit. P&G challenged Ultreo’s claim that its power toothbrush cleaned beyond the reach of the toothbrush’s bristles by virtue of its high-speed sonic bristle action and ultrasound wave technology. According to P&G, such claims were misleading because they were based exclusively and improperly on laboratory studies rather than clinical studies involving human subjects.

Attorney Work Product

The attorney work product privilege under the Federal Rules of Civil Procedure was intended to preserve a zone of privacy in which a lawyer can prepare and develop legal theories and strategies with an eye toward litigation, free from unnecessary intrusion by adversaries.

The factual nature of the clinical studies did not, by itself, negate the potential applicability of the privilege, the court noted. However, under the law of the Second Circuit, the work product doctrine did not extend to documents in an attorney’s possession that were prepared by a third party in the ordinary course of business and would have been created in essentially similar form regradless of any litigation anticipated by counsel.

The affirmation of Ultreo's outside counsel that the studies were conducted at his request in anticipation of litigation was not sufficient to shield them from discovery. Since 2005, well before the studies at issue were requested, Ultreo as part of its business plan had sought to obtain clinical proof of the effectiveness of the ultrasound component of the its new toothbrush.

Indistinguishable from Other Studies

The court’s in camera review of the studies revealed that they were virtually indistinguishable from other studies conducted by Ultreo. It could not be said that the studies at issue would not have been prepared in substantially similar form but for the prospect of litigation, according to the court. To extend the privilege to the studies at issue would create a precedent for shielding every clinical investigation and scientific inquiry, so long as the party was savvy enough to include outside counsel in the decision-making process, the court said.

The January 8, 2008, decision in Procter & Gamble Co. v. Ultreo, Inc. will be reported in CCH Advertising Law Guide at ¶62,790.