In response to having received and reviewed e-mailed status reports, the Special Master inadvertently replied-to-all recipients with personal notes intended only for himself. Twenty-two minutes later, upon realizing his error, the Special Master attempted to claw back the e-mail containing his mental impressions by requesting that the parties “discard and disregard” the prior communication. The next day, counsel for one of the PBM defendants, on behalf of both PBM defendants, replied that they “cannot agree to your request to discard or disregard it.” Instead, during a status conference with the Court, the PBMs asked that the Special Master be disqualified.

Denying the Motion to Disqualify, the Court found that: “Special Master Cohen’s email, which consisted entirely of his own mental impressions, personal notes, and private musings about the submitted status reports, was unquestionably a privileged judicial deliberative memorandum to himself. As such, it is an improper basis upon which to even raise an argument about perceived partiality.”  The Court quoted from Case-Management Order No. 2, which provided: “If a Party or non-Party discovers that it has produced Privileged Information, it shall promptly notify the Receiving Party of the production in writing, shall identify the produced Privileged Information by Bates range where possible, and may demand that the Receiving Party return or destroy the Privileged Information.”  The Court then noted that: “Presumably, the PBMs will, at some point in these proceedings, want to take advantage of this common claw-back provision provided by the Court’s protective order. It seems hypocritical, therefore, for the PBMs not to extend a similar courtesy to the Special Master. The Court also notes that, were the email from opposing counsel rather than the Special Master, and the PBMs responded that not only would they not allow counsel to claw back their inadvertent disclosure but intended to use it to attempt to gain some tactical advantage in ligation, such conduct could be the subject of a motion for sanctions.”  The Court quotes further from the CMO: “In the event that a Receiving Party receives information that it believes is subject to a good faith claim of privilege by the Designating Party, the Receiving Party shall immediately refrain from examining the information and shall promptly notify the Designating Party in writing that the Receiving Party possesses potentially Privileged Information.”  And then recognizes that: “Although the Court’s protective order does not expressly apply to the Special Master, it describes a standard of professional conduct in a very closely analogous situation that the PBMs could have and should have followed.”

Ultimately, the Court found that, even considering the privileged communication at issue, the Special Master’s “private notes, when read objectively as a whole, demonstrate his even-handedness. It is notable that the PBMs ignore the Special Master’s statements that favor the PBMs’ positions.”

In re National Prescription Opiate Litigation, MDL No.2084, No.17-2804, Rec. Doc. 5217 (N.D.Ohio Oct. 10, 2023).

[See also, e.g., ABA Model Rule of Professional Conduct 4.4(b) (“A lawyer who receives a writing relating to the representation of the lawyer’s client and knows or reasonably should know that the writing was inadvertently sent shall promptly notify the sender”). Official Comment [3] to the Rule explains that: “Paragraph (b) recognizes that lawyers sometimes receive writings that were mistakenly sent or produced by opposing parties or their lawyers. See Rule 1.0(o) for the definition of ‘writing’, which includes electronic communications and metadata. A writing is inadvertently sent when it is accidentally transmitted, such as when an electronic communication or letter is misaddressed or a document or electronically stored information is accidentally included with information that was intentionally transmitted. If a lawyer knows or reasonably should know that such a writing was sent inadvertently, then this rule requires the lawyer promptly to notify the sender in order to permit that person to take protective measures. This duty is imputed to all lawyers in a firm. Whether the lawyer who receives the writing is required to take additional steps, such as returning the writing, is a matter of law beyond the scope of these rules, as is the question of whether the privileged status of a writing has been waived. Similarly, this Rule does not address the legal duties of a lawyer who receives a writing that the lawyer knows or reasonably should know may have been inappropriately obtained by the sending person. Metadata in electronic documents creates an obligation under this Rule only if the receiving lawyer knows or reasonably should know that the metadata was inadvertently sent to the receiving lawyer. A lawyer who receives an electronic communication from the opposing party or the opposing party’s lawyer must refrain from searching for or using confidential information found in the metadata embedded in the communication.”]