Quigley Company, Inc.

UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF NEW YORK
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In re: 	:
: 	Chapter 11
QUIGLEY COMPANY, INC., 	: 	Case No. 04-15739 (SMB)
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Debtors. 	:
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SUPPLEMENTAL MEMORANDUM DECISION
AND ORDER REGARDING PRIVILEGES
A P P E A R A N C E S:
SCHULTE ROTH & ZABEL LLP
Attorneys for the Debtor
919 Third Avenue
New York, New York 10022
Michael L. Cook, Esq.
Lawrence V. Gelber, Esq.
Victoria A. Lepore, Esq.
Of Counsel
CADWALADER, WICKERSHAM & TAFT LLP
Attorneys for Pfizer Inc.
One World Financial Center
New York, New York 10281
Dennis J. Block, Esq.
Gary D. Ticoll, Esq.
Michele L. Angell, Esq.
Of Counsel
GREENBERG TRAURIG, LLP
Attorneys for Pfizer Inc.
Met Life Building
200 Park Avenue
New York, New York 10166
Bruce R. Zirinsky, Esq.
John H. Bae, Esq.
Of Counsel
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BROWN RUDNICK BERLACK ISRAELS LLP
Attorneys for The Ad Hoc Committee of Tort Victims
120 West 45 th Street
New York, New York 10036
Jeffrey L. Jonas, Esq.
James W. Stall, Esq.
Gregory T. Arnold, Esq.
Edward S. Weisfelner, Esq.
Of Counsel
STUART M. BERNSTEIN
Chief United States Bankruptcy Judge
In its Memorandum Decision and Order Regarding Privileges, dated April 24, 2009
(“Order”), familiarity with which is assumed, the Court granted in part and denied in part the
motion by the unofficial Ad Hoc Committee of Tort Victims (the “Ad Hoc Committee”) to
compel the production of certain documents withheld under claims of privilege by the debtor,
Quigley Company, Inc. (“Quigley”) and its parent, Pfizer Inc. (“Pfizer”).
The Order left one item open. As discussed at pages 22 and 23, Quigley’s September 11,
2007 Privilege Log identified four documents (78, 80, 83 and 84) that raised an unusual question.
Documents Nos. 83 and 84, which were identical, consisted of two emails and two attachments.
The attachments included two documents, a clean and black-lined version of a Product License
and Services Agreement between Quigley and Pfizer. The bottom (earlier) email (7/12/05, at
10:33 am) was prepared by Philip J. Nichols, a law clerk employed by Cadwalader, and sent to
Jason A. Cohen, Esq. and Darryl Pinsker, Esq., Cadwalader attorneys. The Nichols email
commented on some of the points raised by Laura Chenoweth, Esq., an in house Pfizer lawyer,
pertaining to the draft Product License and Services Agreement, and explained how those points
were addressed in the attached re-draft. The top (later) email (9/16/05, at 3:47 pm) did not
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contain text, but simply forwarded the earlier email and attachments to Jessica L. Fainman, Esq.
of Schulte Roth. Document Nos. 78 and 80 transmitted the Nichols’ email and attachments (and
the Cohen forwarding email) between Quigley attorneys.
Quigley withheld the Nichols’ email and the attachments under a claim of attorney work
product and the joint defense privilege. Pfizer, however, did not list these documents on its own
privilege logs. I questioned how Quigley could assert a claim of privilege over an internal
Cadwalader email that was not sent to Quigley’s attorneys until two months later, but gave
Quigley ten days to supplement its submissions on this point.
By letter dated April 29, 2009, counsel for Quigley informed me that Pfizer intended to
assert a privilege with respect to all four documents, and by letter date May 4, 2009, Pfizer
asserted the attorney-client and work product privileges with respect to the Nichols’ email and
the attachments.1
I conclude that the Nichols email is protected by both privileges. His commentary
reflects questions raised by Pfizer’s in house lawyer, and those communications are protected by
the attorney-client privilege. Moreover, the Nichols’ email as well as the Product License and
Services Agreement were prepared in contemplation of the joint strategy of using a Quigley
bankruptcy to discharge their joint liabilities and channel the asbestos claims to a trust to the
extent allowed by § 524(g) of the Bankruptcy Code. Hence, they qualify as work product.
Furthermore, the transmission of the email and the attachments to and among Quigley
lawyers did not waive these privileges. Quigley and Pfizer shared a common interest, and the
1 	At a subsequent conference, I asked counsel for the Ad Hoc Committee if he intended to submit anything
further, and he answered in the negative. Accordingly, I accept Pfizer’s belated assertion of the privilege as timely.
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disclosure of the attorney-client privileged material to Quigley did not waive that privilege.
Similarly, the disclosure of work product to Quigley did not waive that privilege because the
disclosure to Quigley did not create a substantial danger that it would be disclosed thereafter to
an adversary. Finally, the work product is not factual, consisting of attorney analysis and legal
drafting. The Ad Hoc Committee has failed to meet the heightened requirement necessary to
compel the disclosure of opinion work product.
Accordingly, the motion to compel production of Documents Nos. 78, 80, 83 and 84 is
denied.
So ordered.
Dated: New York, New York
June 19, 2009
/s/ Stuart M. Bernstein
STUART M. BERNSTEIN
Chief United States Bankruptcy Judge
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