The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
IN RE: GENERIC : MDL NO. 2724
PHARMACEUTICALS : 16-MD-2724
PRICING ANTITRUST LITIGATION : HON. CYNTHIA M. RUFE
:
:
CVS Pharmacy, Inc. v. Actavis Elizabeth :
LLC, et al. : 20-CV-6310
:
County of Albany, et al. v. Actavis Holdco :
US, Inc., at al. : 21-CV-1875
:
County of Westchester, et al. v. Actavis :
Holdco, US, Inc. et al. : 21-CV-4474
:
Providence St. Joseph Health, et al. v. :
Actavis Holdco US, Inc., et al. : 23-CV-3636
:
American Airlines, Inc. et al. v. Actavis :
Holdco, US, Inc. et al. : 24-CV-1430
:
Walmart Inc. v. Actavis Elizabeth LLC, et :
al. : 25-CV-1383
:
Southwest Airlines Co. v. Actavis Holdco, :
US, Inc. et al. and : 25-CV-2951
:
AT&T Services, Inc., et al. v. Actavis :
Holdco US, Inc. et al. : 25-CV-6772
UNDER SEAL
SPECIAL MASTER LAWRENCE F. STENGEL’S
REPORT AND RECOMMENDATION TO THE COURT RESOLVING CERTAIN
PLAINTIFFS’ MOTION TO COMPEL PRODUCTION FROM NISHA PATEL
Before me are Certain Direct Action Plaintiffs’ (the “Plaintiffs”) Motion to Compel
Production from Nisha Patel (MDL Docket Nos. 4064, 4067); Defendant Nisha Patel’s
opposition, which was filed on March 13, 2026 (MDL Docket No. 4131); and Plaintiffs’ reply,
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which was filed on March 20, 2026 (MDL Docket Nos. 4159, 4161). The Court referred the
Plaintiffs’ motion to me on March 3, 2026. See MDL Docket No. 4092. Oral argument was held
on April 16, 2026. Following the hearing, I asked counsel for Nisha Patel to provide a copy of
the document at issue to me for my in camera review. I also asked counsel for Nisha Patel
several follow-up questions regarding the document. Having considered the parties’ submissions
and having reviewed the document at issue in camera, the matter is ripe for adjudication.
I. BACKGROUND AND THE DOCUMENT REQUEST AT ISSUE
This dispute relates to the production of an Excel file that contains a chronology of
various events in the MDL. The parties disagree on whether the Excel chart is attorney work
product or was solely prepared by Defendant Nisha Patel. If the document was prepared by
counsel and would otherwise be shieled by the attorney work product privilege, the parties next
dispute whether that privilege has been waived. If the privilege has not been waived, the
Plaintiffs maintain that Ms. Patel should nonetheless be compelled to produce the document,
because the Plaintiffs have demonstrated a substantial need and undue hardship, pursuant to
Federal Rule of Civil Procedure 26. The Plaintiffs became aware of the Excel file’s existence
because it was mentioned/described in some of the notes/memoranda of interview that the
have produced.
II. THE RELEVANT CASE LAW
Federal Rule of Civil Procedure 26 provides that “[o]rdinarily, a party may not discover
documents and tangible things that are prepared in anticipation of litigation….” Fed. R. Civ. P.
26(b)(3)(A). The party seeking protection of the work product doctrine bears the burden of
establishing that it exists. See In re Complaint of B&C Seafood LLC, 431 F. Supp. 3d 533, 536-37
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(D.N.J. 2019) (“[A] party seeking to invoke the work-product doctrine must prove at least the
following two elements: (1) that a document was prepared because of reasonably anticipated
litigation and (2) that the document was prepared because of the prospect of litigation and for no
other purpose.”); FTC v. AbbVie, Inc., No. 14-CV-5151, 2015 U.S. Dist. LEXIS 166723, at *3 (E.D.
Pa. Dec. 14, 2015) (“The burden to establish that a privilege applies is on the party asserting the
privilege.” (citing Conoco, Inc. v. U.S. Dep’t of Justice, 687 F.2d 724, 730 (3d Cir. 1982))). Once a
document is determined to be attorney work product, “the party asserting waiver of work product
immunity, rather than the party asserting the work product protection, has the burden of establishing
waiver.” Greene, Tweed of Del., Inc. v. DuPont Dow Elastomers, L.L.C., 202 F.R.D. 418, 423 (E.D.
Pa. 2001) (“a party asserting work product privilege immunity is not required to prove non-waiver.”
(citation omitted)); accord Utesch v. Lannett Co., Inc., CV 16-5932, 2020 WL 7260775, at *10 (E.D.
Pa. Dec. 9, 2020); Rudolf v. Am. Int’l Grp., Inc., CV 19-1468, 2021 WL 5883366, at *4 (W.D. Pa.
Dec. 13, 2021); Cooper Health Sys. v. Virtua Health, Inc., 259 F.R.D. 208, 215 (D.N.J. 2009)
(concluding that attorney work-product protection was not waived through disclosure to third party).
Work-product protection is waived by intentional disclosure to an adversarial third party.
See In re Chevron Corp., 633 F.3d 153, 165 (3d Cir. 2011) (“[T]he work-product doctrine
protects an attorney’s work from falling into the hands of an adversary, and . . . [when] the
material is disclosed in a manner inconsistent with keeping it from an adversary . . . the work-
product doctrine is waived.”). Waiver can also occur through disclosure to a government
investigator. See Westinghouse Elec. Corp. v. Republic of Phil., 951 F.2d 1414, 1429 (3d Cir.
1991) (finding waiver of work-product protection where documents were voluntarily disclosed to
the DOJ).
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Even in the absence of waiver, however, the protection afforded attorney work product is
not absolute. There are two tiers of work product: ordinary “fact” work product and “opinion”
work product. See Fed. R. Civ. P. Rule 26(b)(3). Non-opinion work product can be disclosed
upon a showing of substantial need and undue hardship. See Fed. R. Civ. P. 26(b)(3).
III. THE PARTIES’ POSITIONS AND ARGUMENTS
A. The Plaintiffs’ Arguments in Support of Their Motion
Nisha Patel was
antitrust issues in the generics pharmaceutical industry. See Pltfs. Mot. at 3. When
Ms. Patel
Id.
Pltfs. Mot. at 3.
Shortly after the Order was issued, Ms. Patel met with
Id. Based on the
Id.
Id. at 4.
Id.
The Excel file at issue was
Id.
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Id. Ultimately,
Id. at 4-5.
Plaintiffs argue that the (the only
contemporaneous record from the moment the Excel file first surfaced) says that
Pltfs. Mot. at 6.
. According to Plaintiffs,
Id.1
Relying on the Third Circuit’s decision in Westinghouse,2 the Plaintiffs argue that – even
if the Excel chart had been prepared by Ms. Patel’s attorneys rather than Ms. Patel herself, the
work product privilege was waived
See Pltfs. Mot. at 7.
Id. at 8. Accordingly, even if the Excel chart enjoyed work product protection
1 See Pltfs. Mot. at 7, citing Ogrod v. City of Phila., No. 21-CV-2499, 2023 U.S. Dist. LEXIS
119482, at *5 (E.D. Pa. July 12, 2023) (“Rule 45(d)(3)(A) provides that disclosure cannot be
compelled where the subpoena (1) ‘requires disclosure of privileged . . . matter, if no exception
or waiver applies.’” (quoting Fed. R. Civ. P. 45(d)(3)(A))); United States v. Hubbell, 530 U.S.
27, 31 (2000) (observing that the defendant properly withheld privileged and protected matter
when producing documents pursuant to a compulsion order). See also Pltfs’ Mot. at 9, where
Plaintiffs explain that the plain text of the Order compelled testimony but not the waiver of the
work product privilege.
2 See Westinghouse Elec. Crop. v. Republic of Philippines., 951 F.2d 1414, 1429 (3d Cir. 1991)
(finding waiver of work-product protection where documents were voluntarily disclosed to
DOJ).
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when it was created, Plaintiffs maintain that
Id. (The Plaintiffs also note that Ms. Patel and her
attorneys did not attempt to preserve or claim
that the Excel chart was attorney work product before sharing it. See Pltfs. Mot. at 9-10).
Lastly, the Plaintiffs argue that – even if work product privilege for the Excel chart exists
and is intact, they have a substantial need for the document, which is sufficient to compel its
production. See Pltfs. Mot. at 11-14. First, the Plaintiffs note that Nisha Patel (given her role at
Teva and Teva’s alleged role in the antitrust scheme) is “one of the most important witnesses in
the case (if not the most).” Id. at 11. The Plaintiffs also allege that Ms. Patel has destroyed evidence
of her communications with competitors and that she asserted her Fifth Amendment privilege
during her initial deposition and
Id. at 12. The Excel chart would also be critical for impeaching Patel
at trial. Id. at 13.
B. Defendant Nisha Patel’s Opposition to the Motion to Compel
Nisha Patel counters the Plaintiffs’ motion first by arguing that the Excel chart was
created by her attorneys. Patel Opp. at 2. Ms. Patel also argues that –
Id. at 3. Ms. Patel also observes that neither she
Id. at 3-
4.
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Ms. Patel’s attorneys also say that they prepared the Excel chart — gy
NS 0. 21 1. Thus, the chart reflects the
attorneys’ thought processes regarding what facts/information to include, as informed by their
litigation strategy. Jd. at 4-5. as
2
5.
Nisha Patel next argues that as
ES 2c. 2 6.”
ee
ee
ee
Id. at 6. Ms. Patel further argues that no cases in Plaintiffs’ motion yy
NS □□ §. Simply put, Ms. Patel
maintains tht.
ee
3 Ms. Patel cites to numerous out-of-circuit cases for the proposition that work product protection
is not waived through compelled disclosure. See In re Oracle Sec. Litig., No. C-01-0988 MJJ
JCS, 2005 WL 6768164, at *10 (N.D. Cal. Aug. 5, 2005) (“Because the [] Defendants only
produced the [documents] under compulsion of court order, they have not expressly waived
either their attorney-client or work product protection of these documents as regards Plaintiffs in
the instant suit.”); Niagara Mohawk Power Corp. v. Stone & Webster Eng’g Corp., 125 F.R.D.
578, 587 (N.D.N.Y. 1989) (“[C]ourts have been willing to preserve the work product protection
over documents in circumstances where the disclosure to a potential adversary was compelled.”):
see also In re Subpoenas Duces Tecum, 738 F.2d 1367, 1373 (D.C. Cir. 1984) (“The distinction
between voluntary disclosure and disclosure by subpoena is that the latter, being involuntary,
lacks the self-interest which motivates the former. As such, there may be less reason to find
waiver in circumstances of involuntary disclosure.”); accord Rest. (Third) of Law Governing
Lawyers § 79 (2000) (“A disclosure in obedience to legal compulsion ... does not constitute
waiver.”).
FILED WITH REDACTIONS — PUBLIC VERSION
Id. at 9.
Lastly, Ms. Patel argues that the Plaintiffs cannot show a substantial need, because the
Excel chart reflects the mental impressions, notes, and litigation strategy of her counsel. Id. Such
materials enjoy a high level of protection. See Fed. R. Civ. P. 26(26(b)(3)(B) (The court “must
protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a
party’s attorney or other representative concerning the litigation.”). Ms. Patel also observes that
one of the cases that the Plaintiffs cite in their motion found that impeachment is not sufficient to
overcome work product protection. See Opp. at 11 (citing Pltfs. Mot. at 13 (citing Inre Grand
Jury Investigation, 599 F.2d 1224, 1233 (3d Cir. 1979) (“we do not believe… that the desire to
impeach or corroborate a witness’s testimony, by itself, would ever overcome the [work product]
protection afforded the interview memoranda.”)). Moreover, the facts in the Excel chart have
already been produced in the MDL. See Opp. at 11. Thus, according to Ms. Patel, the Plaintiffs
are simply looking for a shortcut through the ocean of materials by using her attorneys’ fact
compilation . Id.
C. Plaintiffs’ Reply in Support of Their Motion
Plaintiffs’ reply largely echoes the arguments that they made in their motion. They argue
that should be afforded more weight than Ms. Patel’s
attorneys’ current claims that they prepared the Excel chart. See Reply at 3. One noteworthy
point is that Plaintiffs complain that Ms. Patel’s attorneys have not even produced metadata for
the Excel document, which would arguably show who authored the document. The Plaintiffs
also argue that if the analysis boils down to versus attorney
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declaration, a tie should go to the Plaintiffs, because Ms. Patel has the burden of establishing that
the Excel chart is work product.
The Plaintiffs next argue that Ms. Patel cannot show that production of the Excel chart to
. However, the Plaintiffs also assert that –
– the
logic and holding in the Third Circuit’s decision in Westinghouse mandates that finding a waiver
of the work product privilege. See Reply at 8-10. Simply put, the Plaintiffs argue that Ms. Patel
disclosed the Excel chart to an adversary to obtain leniency; under the logic of Westinghouse,
that act destroyed the privilege.
IV. ANALYSIS
As an initial matter, I find that the document at issue was most likely prepared by Nisha
Patel’s attorney(s), and not Nisha Patel herself. Even though
appears to say that , I credit her counsel’s representation that the
document was prepared by her attorneys. Also, having reviewed the document in camera, I find
it most likely that it was prepared by Ms. Patel’s attorneys. Accordingly, I find that the document
is attorney work product and covered by the work product privilege.
Having found that the document is privileged, I must next determine whether the privilege
has been waived. Given the Third Circuit’s law on waiver of the attorney work product privilege,
as set forth in Westinghouse,4 and the nature of the disclosure that occurred here, I find that the
attorney work product privilege has been waived. In Westinghouse, the Third Circuit observed
that “Because the work-product doctrine serves instead to protect an attorney’s work product from
4 Westinghouse Elec. Corp. v. Republic of Philippines, 951 F.2d 1414, 1428 (3d Cir. 1991).
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falling into the hands of an adversary, a disclosure to a third party does not necessarily waive the
protection of the work-product doctrine.” Westinghouse Elec. Crop. v. Republic of Philippines,
951 F.2d 1414, 1428 (3d Cir. 1991). Instead, “the purpose of the work-product doctrine requires
us to distinguish between disclosures to adversaries and disclosures to non-adversaries.” Id. The
Third Circuit also observed that “when [a] disclosure is either inadvertent or made to a non-
adversary, it is appropriate to ask whether the circumstances surrounding the disclosure evidence
conscious disregard of the possibility that an adversary might obtain the protected materials.” Id.
at 1431.
In Westinghouse, the Third Circuit noted that Westinghouse had been the target of
investigations conducted by the Department of Justice and the Securities and Exchange
Commission. Id. Accordingly, the Third Circuit held “that Westinghouse’s disclosure of work
product to the SEC and to the DOJ waived the work-product doctrine as against all other
adversaries.” Id. at 1429. Westinghouse’s disclosures to the SEC and to the DOJ “waived the
protection of the work-product doctrine because they were not made to further the goal underlying
the doctrine. When a party discloses protected materials to a government agency investigating
allegations against it, it uses those materials to forestall prosecution (if the charges are unfounded)
or to obtain lenient treatment (in the case of well-founded allegations). These objectives, however
rational, are foreign to the objectives underlying the work-product doctrine.” Id. at 1429.
Here, Ms. Patel was . Thus,
under the logic of Westinghouse, . Also, Ms. Patel
. Even if I did not credit
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, it is still the case that Ms. Patel used the Excel file either “to forestall prosecution”
or “to obtain lenient treatment” –
. The disclosure was not made to advance trial preparation. Thus, under
Westinghouse, Ms. Patel’s disclosure was not made “to further the goal underlying the [attorney
work product] doctrine.”
Attempting to distinguish Westinghouse, Ms. Patel has argued that she had an expectation
that the Excel chart would be confidential because
. While Westinghouse does not discuss compulsion per se, it does discuss whether
a disclosing party’s expectation that material will be kept confidential affects the waiver analysis.
See id. at 1430-31. After evaluating out-of-Circuit law on the point, the Third Circuit nevertheless
determined that the nature of Westinghouse’s disclosure indicated that there was no reasonable
expectation of confidentiality. “[H]ad the DOJ and the SEC not been Westinghouse’s adversaries,
and had we concluded that Westinghouse reasonably expected the agencies to keep the material
that it disclosed to them confidential, we might reach a different result. But because Westinghouse
deliberately disclosed work product to two government agencies investigating allegations against
it,” the work-product protection was waived.5
5 Ms. Patel places significant weight on an out-of-district opinion from the Northern District of
New York. See Opp. at 6-7 (discussing Niagara Mohawk Power Corp. v. Stone & Webster Eng’g
Corp., 125 F.R.D. 578 (N.D.N.Y. 1989)). She relies on Niagara Mohawk for the proposition that
work product privilege is not waived by a compelled disclosure.
Faced with the Third Circuit’s controlling Westinghouse decision, I do
not find the out-of-district decision in Niagara Mohawk sufficient to support a finding of non-
waiver. Conversely, the Plaintiffs placed weight on the Supreme Court’s decision in United
States v. Hubbell, 530 U.S. 27 (2000). Plaintiffs cited to it for the proposition that the Supreme
Court observed that the defendant in that case properly withheld documents for work product
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While the finding of waiver resolves the motion to compel, for the benefit of the Court, I
shall reach the Plaintiffs’ final argument, which was substantial need under Federal Rule of Civil
Procedure 26. Having reviewed the briefing, considered the parties’ arguments, and evaluated the
document in camera, I find that the document reflects a compilation of pieces of information that
are otherwise available across the discovery that has been produced in the MDL. The value of the
Excel file lies in the fact that it reflects the pieces of information that Ms. Patel’s attorneys saw fit
to capture. Certainly, the Plaintiffs would enjoy having a short-cut through the discovery and a
map to the key information, as identified by Ms. Patel’s counsel. However, the underlying facts
and data are otherwise available to the Plaintiffs. The document at issue is not the only source of
the information; it is Plaintiffs’ preferred source, having been curated by defense counsel.
Accordingly, I find that the Plaintiffs have shown a substantial preference, but not a substantial
need, for the document at issue.
I note that the Excel file at issue has been a living document, which has been updated and
revised . I have not
heard compelling reasons why subsequent attorney work product that was added to the Excel file
should also be subject to waiver. Accordingly, I limit my
recommendation to the version of the Excel file that most closely resembles the version that was
provided but which does not include subsequent updates and additions by Ms.
Patel’s counsel.
privilege in response to a GJ subpoena and related compulsion order. See Mot. at 7). However,
the Hubbell case was not about the propriety of withholding privileged documents (or of
asserting work product privilege) in response to a compulsion order. The case related to Fifth
Amendment immunity and derivative use immunity in a subsequent prosecution. Accordingly, I
do not find that Hubbell controls here.
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V. CONCLUSION
Therefore, for the reasons outlined above, I recommend that the Court grant the
Plaintiffs’ motion to compel production by Nisha Patel, based on a finding of waiver.
Respectfully submitted,
Date: July 10, 2026 /s/ Lawrence F. Stengel
Hon. Lawrence F. Stengel (Ret.)
Court Appointed Special Master
SAXTON & STUMP, LLC
280 Granite Run Drive, Suite 300
Lancaster, PA 17601
(717) 556-1080
lfs@saxtonstump.com
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