Barton v. United States District Court

Andrew Barton and others (the claimants) (plaintiffs) sued pharmaceutical manufacturer GlaxoSmithKline (defendant) claiming injuries related to withdrawal from the drug Paxil. The law firm that represented the claimants had posted a questionnaire on the internet seeking to “gather information” about potential class members. Entitled “PAXIL WITHDRAWAL LITIGATION INITIAL CONTACT,” the questionnaire asked for extensive information from Paxil users or their loved ones about their experiences using the drug and symptoms. At the end, the person filling out the form had to check a “yes” box to submit it to the law firm. A disclaimer stated that the person was not requesting legal advice and did not form an attorney-client relationship by submitting the questionnaire. GlaxoSmithKline sought the questionnaires that four of the five initial claimants completed to compare with their discovery responses. The claimants objected on attorney-client-privilege grounds. The district court found that the attorney-client privilege did not apply, reasoning that the disclaimer of an attorney-client relationship was also a disclaimer of confidentiality even though “confidentiality” did not appear, and that checking the “yes” box waived any privilege. The court essentially concluded that the claimants’ attorneys could not use a disclaimer to protect themselves then claim privilege and ordered the questionnaires disclosed. The claimants appealed, seeking a writ of mandamus to prevent the disclosure.