2018-08-1 - Insulin Litigation - DE 17-699 Final Order - Julia Boss Papers

Case 3:17-cv-00699-BRM-LHG Document 184 Filed 08/02/18 Page 1 of 20 PageID: 3610
UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY
IN RE INSULIN PRICING LITIGATION

Civil Action No. 17-699 (BRM)(LHG)
BEWLEY, et al., Civil Action No. 17-12031 (BRM)(LHG)

Plaintiffs,
v.
CVS HEALTH CORP., et al.,
Defendants.
PRESCOTT, et al., Civil Action No. 17-13066 (BRM)(LHG)

Plaintiff,
v.
ORDER
CVS HEALTH CORP., et al.,
Defendant.
I. Introduction
Presently before the Court are letters and submissions from Julia Boss, many of which
are on the docket, but a good number of which have been filed under temporary seal in light of
objections that were lodged before the documents were placed on the docket. It is the Court’s
intention to sort through these various documents and address the issues raised.
II. Factual and Procedural History
On March 17, 2017, Julia Boss (“Boss”) and Type 1 Diabetes Defense Foundation
(“T1DF”), along with various other individual named plaintiffs, filed a proposed class action suit
in this District against various pharmaceutical defendants, insurers, and manufacturing
defendants including CVS Health Corporation, Caremark RX, LLC, Express Scripts Holding
Company, Express Scripts, Inc., UnitedHealth Group, Inc., OptumRX, Inc., Sanofi-Aventis U.S.
LLC, Novo Nordisk Inc., Eli Lilly and Company, and Caremark RX, Inc. The stated goal was
“to redress Plaintiffs’ injuries due to Defendants’ Insulin Pricing Scheme, which has driven up
the cost of insulin to the substantial benefit of the Defendants.” Docket Entry No. 1 at 10 in
Boss, et al. v. CVS Health Corp., Civil Action No. 17-1823 (the “Boss Action”). This Complaint
was filed on behalf of all plaintiffs by Keller Rohrback L.L.P. (“KR”), with the firm of Critchley,
Kinum & Denoia, LLC (“Critchley”) serving as local counsel. During that same timeframe,
other suits making similar allegations were also filed. By Order dated January 19, 2018, the
Boss Action was consolidated with several of those cases under the caption In re Insulin Pricing
Litigation, Civil Action No. 17-699 (“Insulin Pricing”).
Boss and T1DF are also plaintiffs in Prescott et al. v. CVS Health Corporation, et al.,
Civil Action No. 17-13066 (the “Prescott Case”) and Bewley, et al. v. CVS Health Corporation,
et al., Civil Action No. 17-12031 (the “Bewley Case”), which were transferred from the Western
District of Washington, but were not consolidated in the Insulin Pricing matter. [Docket Entry
No. 105 in the Prescott Case; Docket Entry No. 62 in the Bewley Case]. The Bewley and
Prescott Cases involve the pricing of glucagon, a diabetes-related medication used by the same
putative class members as those in the consolidated cases. KR and Critchley are counsel for
plaintiffs in both of these cases as well.
2
On December 22, 2017, KR and Critchley filed a motion to withdraw as counsel for Boss
and T1DF in all three separate cases, as well as in the consolidated case. It was asserted in the
motion that it was brought at the instruction of Boss and T1DF, and that the attorney-client
relationship was irretrievably broken. Id. at 1. 1 The motion was duly calendared and, as is the
practice of the undersigned, a conference was scheduled at which the Court intended to advise
Boss and a representative of T1DF of Boss’s right to represent herself pro se but also to advise
that T1DF could not proceed without counsel, nor could Boss appear on behalf of T1DF. In such
events, the undersigned typically gives additional time for the pro se parties to retain new
counsel. In this instance, the Court was also interested in clarification as to how Boss and T1DF
could proceed without counsel, given that they had been presented to the Court as proposed class
representatives.
That conference took place on January 31, 2018; Boss and T1DF declined to participate
and did not appear. Given that KR and Critchley had not yet been relieved as counsel, the Court
did not in any way sanction Boss or T1DF for failing to appear as ordered.
Following the January 31, 2018 conference, the Court entered an Order granting the
motion to withdraw, and KR and Critchley’s appearance on behalf of Boss and T1DF ended.
[Docket Entry No. 99]. The January 31, 2018 Order provided Boss and T1DF until March 2,
2018 to retain new counsel and have that counsel enter an appearance. The Order also provided
guidance in the event that new counsel did not appear.
In January and February, 2018, Boss and T1DF sent several submissions to the Court. In
the ordinary course, submissions by a pro se party would be placed on the docket by the Clerk’s
Office. This case was not the ordinary course, however. At the time the initial submissions were
1
For reference purposes, unless further clarification is needed, the Docket Entry Numbers identified in this decision
relate to the docket in Insulin Pricing.
3
sent, Boss and T1DF were still represented by KR. Soon thereafter, KR advised the Court that
the submissions contained privileged information as to other plaintiffs they represent, that should
not be placed on the docket. In an abundance of caution, the Court instructed the Clerks’ Office
not to place the submissions on the docket until the issue of privilege had been addressed.
In the interim, Boss and T1DF, at least in part through its Vice President, Charles
Fournier, also submitted various emails to the Court, both to the Chambers of the undersigned
and to the Chambers of the Honorable Brian R. Martinotti, U.S.D.J. As a result, it was unclear
which submissions were to go on the docket. By Order dated March 9, 2018 (the “March 9
Order”) [Docket Entry No. 108], the undersigned instructed Boss to provide the Court with a list
of any of her correspondence that was submitted prior to March 2, 2018, which she sought to
have placed on the docket. The list was to be submitted by no later than March 23, 2018.
[Docket Entry No. 108]. In addition, KR was given the opportunity to submit a letter
memorandum by March 29, 2018 setting forth the bases for any objections it had to putting the
documents identified by Boss on the docket. Id. Boss was then to respond to any such
objections by April 9, 2018. Id.
Boss timely submitted a letter on March 16, 2018 (the “Boss List”) [Docket Entry No.
117], identifying eight documents with attachments that she wanted on the docket. Document
number one on the Boss List is a letter addressed to Judge Martinotti with an appendix
containing an additional 20 documents. Id. On March 20, 2018, Boss also filed a Motion for
Reconsideration of the undersigned’s March 9, 2018 Order and the Court’s March 16, 2018
Order. [Docket Entry No. 152].
4
On behalf of various plaintiffs it continues to represent, including Diane Halkyard, Ruth
Hart, Donna Ramsey, Bertha Sanders, Kim Wallan, Jim Wallan, LeAnn Rice, Michael Bewley,
Jeanine Prescott, Scott Strumello, and Ruth Johnson (the “Non-Waiving Plaintiffs”), KR
responded by letter dated March 29, 2018 [Docket Entry No. 132], arguing that most of the
letters listed by Boss in her March 16, 2018 letter should be stricken, or in the alternative, filed
under seal. With its March 29, 2018 response, KR included courtesy copies of the documents on
the Boss List and highlighted sections of the documents allegedly containing privileged
information (in yellow) or evidencing the alleged unauthorized practice of law (in blue). Id. at 1.
Boss set forth her responses to KR’s objections by letter dated April 6, 2018 [Docket Entry No.
145]. In addition, Boss submitted a letter dated June 6, 2018, that also responds to KR’s March
29, 2018 letter, among other issues. [Document Entry No. 171].
Various manufacturer defendants in the Prescott Case also voiced their position
regarding the placement of the documents on the Boss List on the docket by letter dated April 9,
2018 (the “Abbott Letter”) [Docket Entry No. 201 in the Prescott Case], as did the manufacturer
defendants in Insulin Pricing and in the Bewley Case in an April 10, 2018 letter (the “Sanofi
Letter”) [Docket Entry Nos. 147 in Insulin Pricing and 133 in the Bewley Case].
Boss also submitted a 38 page, single spaced letter dated June 6, 2018 (“Boss’ June 6
Letter”), that responds to “KR’s March 29, 2018 letter, and proposed order [DE 132] (9 pages)
and April 6, 2018 letter (2 pages)[DE 142].” [Document Entry No. 171].
Then, on June 26, 2018, the Non-Waiving Plaintiffs filed a Motion to Seal certain
documents. [Docket Entry No. 179]. Boss filed a Statement in Opposition to the Motion to Seal
on July 5, 2018. [Docket Entry No. 182].
5
III. Issues Presented to the Court
To determine whether the documents at issue should remain on the docket and be public
or whether they should be stricken or sealed, the Court must consider the following: (1) whether
the Non-Waiving Plaintiffs have met their burden of showing that the documents at issue are
privileged; (2) if the documents are indeed shown to be privileged, whether that privilege has
been waived by Boss or, in the alternative, cannot be waived by Boss because there is a
community-of-interest privilege shared by the Non-Waiving Plaintiffs; (3) if the documents on
the Boss List are not privileged, or there has been an effective waiver, whether they should be
stricken because Boss and/or T1DF have engaged in the unauthorized practice of law; and (4)
whether the documents should be sealed pursuant to Local Civil Rule 5.3.
IV. Arguments of the Parties
A. Non-Waiving Plaintiffs’ Arguments
The Non-Waiving Plaintiffs request that the Court strike from the docket, or, in the
alternative, maintain under seal the documents on the Boss List, arguing that the documents “are
in most instances privileged and, in all instances, their submission by a non-lawyer constitutes
the unauthorized practice of law.” [Docket Entry No. 132 at 1]. The Non-Waiving Plaintiffs
argue that the documents at issue contain case strategy related to all named plaintiffs and other
clients of KR in the various actions. 2 Because Boss made these disclosures without the consent
of the Non-Waiving Plaintiffs, they argue that the privilege has not been validly waived, given
that they and Boss “share a common representation privilege under which the deliberate release
2
Although the Non-Waiving Plaintiffs make a passing reference to work product, they do not brief the work product
doctrine, nor do they indicate which if any of the documents they deem to be so protected. Accordingly, the Court
does not address it in this decision.
6
of privileged information by one plaintiff does not constitute the waiver of privilege as to any
other.” Id. at 2 citing to In re Teleglobe Commc’ns Corp., 493 F.3d 345, 363 (3d Cir. 2007).
The Non-Waiving Plaintiffs submit that the common representation privilege extends to
named plaintiffs in the same class action lawsuit, and that at the time the allegedly privileged
communications were made, Boss and the Non-Waiving Plaintiffs in Boss, Bewley and Prescott
were represented by KR. Id. at 2 citing to Schachar v. Am. Acad. of Ophthalmology, Inc., 106
F.R.D. 187, 191-92 (N.D. Ill. 1985). The Non-Waiving Plaintiffs maintain
it would be "inappropriate for a single plaintiff to be allowed to waive the

attorney-client privilege for all plaintiffs through his act of disclosing attorney-
client communications to the other side, even though his act may have been
deliberate." Anderson, 229 F.R.D. at 547. Because of the common interest in this
litigation shared by the Foundation Plaintiffs and the Non-Waiving Plaintiffs, the
Foundation Plaintiffs did not and, indeed, could not—waive the privilege with
respect to the Non-Waiving Plaintiffs.
Id. at 2. Thus the Non-Waiving Plaintiffs argue that Boss has the right to waive her own
attorney-client privilege but not that of the Non-Waiving Plaintiffs. Id. at 3. According to the
Non-Waiving Plaintiffs, it is enough to show that Boss and the Non-Waiving Plaintiffs share
common counsel. Id. at 2.
Next, the Non-Waiving Plaintiffs argue that Boss’ materials should be stricken from the
record because Boss and Fournier engaged in the unauthorized practice of law by submitting
documents to the Court on behalf of T1DF when T1DF was no longer represented by counsel.
Id. at 3-4. Although the Non-Waiving Plaintiffs acknowledge that Boss may act on her own
behalf, her actions on behalf of herself and T1DF, as well as those by Mr. Fournier, a non-party
not authorized to practice law in this District, were improper. Id. at 4. They therefore conclude
that any filings by Boss signed on behalf of both herself and T1DF should be stricken in their
entirety. Id.
7
Finally, the Non-Waiving Plaintiffs argue that the Court should strike or seal Boss’
filings in order to “prevent the disclosure of confidential materials that would cause ‘annoyance,
embarrassment, oppression, or undue burden or expense’ to any person or party.” Id. at 4
(citations omitted). They also argue that the Court should limit access to confidential case
strategy and privileged communications pursuant to Rule 26(c), which protects putative class
members that do not have a direct claim of privilege. Id. at 5.
B. Boss’ Response
In her response, dated April 6, 2018 3 (“April 6 Letter”), Boss argues that because there is
no joint representation between her and the Non-Waiving Plaintiffs, she does not need their
consent to waive the privilege as to her own communications with counsel. [Docket Entry No.
145]. In addition, Boss notes that even if a joint representation existed, “the associated privilege
and authorization requirement would be extinguished by my termination of KR’s retainer on
December 22, 2017, and by the ensuing conflict that KR’s letter itself documents.” Id. at. 2.
Boss argues that a joint representation agreement would have been to her benefit because she
would have then had access to joint communications with other plaintiffs and counsel, which she
says she did not have. Boss also argues that at least one of the documents, specifically Appendix
B, which is a communication between T1DF and James Cecchi, has been publicly available
online since February 2017. Id.
Boss argues that “KR has failed to advance any valid argument in support of sealing of
any paper that I filed with this court, individually or jointly with T1DF,” especially given that the
3
Boss submitted a letter dated March 31, 2018 [Docket Entry No. 135], advising the Court that KR’s March 29,
2018 letter addressed not only the letters submitted by T1DF, but also “multiple documents that are outside the
scope of the order, in a way that does not allow me to identify which part of the memorandum is relevant to the
scope of the order and which part is not.” Id. at 2. She also noted that KR failed to provide her with the same
highlighted documents that it submitted to the Court, so she was unable to respond to specific allegations. Id. KR
confirmed in correspondence to the Court on April 9, 2018 that they provided Boss with a copy of the highlighted
documents after receiving Boss’ March 31, 2018 letter. See Docket Entry No. 142 at 2.
8
party claiming privilege has the burden of establishing it. Id. at 3 citing to Schachar v. Am.
Acad. of Ophthamology, Inc., 106 F.R.D. 187, 191 (N.D. Ill. 1985). Boss consents to sealing or
redacting several of the documents at issue, including Docket Entry No. 120 at 56-62, Appendix
H; Docket Entry No. 120 at 132-194, Appendix O1 and Appendix O2; and Docket Entry No. 120
at 203-211, Appendix Q. Id. at 4. Further, Boss submits that if the Court and KR agree to the
“guidelines” that she set out in her letter, she would consent to withdrawing her motion for
reconsideration of the March 9, 2018 and March 16, 2018 Orders because the issues would then
become moot. Id. at pg. 5.
Boss further responded to the Non-Waiving Plaintiffs’ arguments by letter dated June 6,
2018, in which she accuses KR of seeking to strike, redact, or seal any statement of fact that
“contradicts their counterfactual allegations of joint representation with other plaintiffs.” In
short, Boss categorically denies the existence of a joint representation with the Non-Waiving
Plaintiffs. [Docket Entry No. 171 at 5]. Finally, Boss argues that the current dispute with KR
acts as a waiver of any privilege that might exist. Id.
C. Manufacturer Defendants’ Objections
In the Prescott Case, the manufacturer defendants (“Prescott Manufacturer Defendants”)
submitted the Abbott Letter addressing the issue of privilege waiver. See [Docket Entry No. 201
in 17-13066]. They take the position that the various submissions should not be stricken, nor
should they be sealed, given that they “were ‘publish[ed] on the public docket,’ ‘disclosed to
adverse parties,’ touted in ‘press release[s],’ and shared with the media. . . . Every one of their
disclosures was voluntary, intentional, and unambiguous.” Id. at 1 (citations omitted). The
Prescott Manufacturer Defendants argue that the joint-client privilege “only protects
communications from compelled disclosure to parties outside the joint representation,” such that
9
Boss and T1DF had the right to voluntarily waive any privilege that they had as to their
communications with KR. Id. at 2 citing In re Teleglobe Commc’ns Corp., 493 F.3d 345, 366
(3d Cir. 2007). They maintain that the other named plaintiffs cannot veto Boss’ uncompelled
disclosures:
That is because even when a joint defense or common interest privilege applies, “a
party always remains free to disclose [her] own communications.” Indeed,
Teleglobe, which Keller Rohrback cites, makes this very point: “[A] client may
unilaterally waive the privilege as to its own communications with a joint attorney,
so long as those communications concern only the waiving client.”.
Id. at 2 (citations omitted).
Further, the Prescott Manufacturer Defendants argue that publicly disclosed
communications are not privileged, nor are communications that are not with counsel. See id. at
3 for examples. The Prescott Manufacturer Defendants assert that Boss has publicly disclosed
the substance of these communications via her tweets and her personal blog, and that Mr.
Fournier did the same with his emails and communications with journalists. Significantly, the
Prescott Manufacturer Defendants contend that
Keller Rohrback also asserts privilege over an email describing its strategy related
to the tolling agreement with the Pharmacy Benefit Manager (PBM) Defendants,
but putative class counsel disclosed nearly the same “current case management
strategy” in their January 30, 2018 letter filed on the court’s public docket. In re
Insulin, No. 17-cv-699, Dkt. 94 at 2-4. There is no privilege left to claim over
these filings.
Id. at 4.
The Prescott Manufacturer Defendants also take issue with the argument that Boss
engaged in the unauthorized practice of law, arguing that her filings should not be stricken just
because she added her title with T1DF to her signature line. Id.
On April 10, 2018, the Court received the Sanofi Letter on behalf of the manufacturer
defendants in Insulin Pricing (“Insulin Pricing Manufacturer Defendants”). [Docket Entry No.
10
147]. The Insulin Pricing Manufacturer Defendants join the arguments set forth in the Abbott
Letter. In addition, the Insulin Pricing Manufacturer Defendants argue that KR’s request should
be denied even as to the communications that Boss consents to sealing, because these
communications were filed on the docket in connection with a non-discovery pretrial motion and
KR fails to meet the burden of overcoming the strong presumption that such filings should be
publicly available. Id. The Insulin Pricing Manufacturer Defendants argue that KR has made no
attempt to explain how the common representation privilege applies to the documents that Boss
agreed to seal nor do they explain how Appendices H, O and Q in their entirety contain
privileged information. Id. at 1. Rather, the Insulin Pricing Manufacturer Defendants note that
these documents are “bilateral communications that are solely between Ms. Boss, Mr. Fournier,
and KR; they do not reflect, reference, or even mention any privileged communications with any
of KR’s other clients.” Id. at 1-2.
V. Standard of Review
A. Attorney-Client and Community-of-Interest Privilege
Whether the documents should be placed on the docket depends first upon whether there
is a privilege adhering to those documents; if so, the Court must consider whether Boss can
waive that privilege. The Non-Waiving Plaintiffs argue that there is, relying on the attorney-
client privilege, as extended to them by the community-of-interest privilege.
“The attorney-client privilege protects communications between attorneys and clients
from compelled disclosure.” In re Teleglobe, 493 F.3d at 359. The attorney-client privilege may
be invoked with respect to: “(1) a communication (2) made between privileged persons (3) in
confidence (4) for the purpose of obtaining or providing legal assistance for the client.”
Restatement (Third) of the Law Governing Lawyers § 68 (2000). “The sine qua non of any
11
claim of privilege is that the information sought to be shielded is legal advice.” United States v.
Rockwell Int'l, 897 F.2d 1255, 1264 (3d Cir. 1990). “Another consideration crucial to
determining the applicability of the privilege is confidentiality. The attorney-client privilege
does not apply to communications that are intended to be disclosed to third parties or that in fact
are so disclosed.” Id. at 1265 (citations omitted). Further, a party can decide to voluntarily
waive the attorney-client privilege. “Waiver of the attorney-client privilege occurs when
voluntary disclosure to an unrelated third party occurs, unless such disclosure is necessary to
assist the client in obtaining informed legal advice.” Robert Bosch LLC v. Python Mfg. Corp.,
263 F.R.D. 142, 145 (D. Del. 2009).
The community-of-interest privilege, also known as the joint client privilege, “allows
attorneys representing different clients with similar legal interests to share information without
having to disclose it to others.” In re Teleglobe, 493 F.3d at 364. The community-of-interest
privilege may be invoked “unless it has been waived by the client who made the
communication.” Restatement (Third) of the Law Governing Lawyers § 76 (2000). The
community-of-interest privilege only applies if an underlying privilege has been established. See
Cooper Health System v. Virtua Health, Inc., 259 F.R.D. 208, 213 (DNJ 2009) (citation omitted).
The party asserting the community-of-interest privilege must establish that "(1) the
communications were made in the course of a joint defense effort, (2) the statements were
designed to further the effort, and (3) the privilege has not been waived." Robert Bosch LLC v.
Python Mfg. Corp., 263 F.R.D. 142, 146 (D. Del. 2009)(citations omitted).
In all regards, the burden of establishing the attorney-client privilege or the community-
of-interest privilege remains on the party asserting the privilege. Id.
12
B. Confidential Information Subject to Sealing Pursuant to Rule 5.3
If the information is not protected by the attorney-client privilege and/or the community-
of-interest privilege, it belongs on the docket. If the information is deemed confidential, the
parties must file a motion to seal pursuant to Local Civil Rule 5.3(c)(3). The motion to seal must
demonstrate the reason for sealing confidential information on the docket, and the sealing party
is required to provide an index that describes with particularity:
(a) the nature of the materials or proceedings at issue;

(b) the legitimate private or public interest which warrant the relief sought;
(c) the clearly defined and serious injury that would result if the relief sought is
not granted;
(d) why a less restrictive alternative to the relief sought is not available;
(e) any prior order sealing the same materials in the pending action; and
(f) the identity of any party or nonparty known to be objecting to the sealing
request.
Such index shall also include, as to each objection to seal any material:
(g) the materials to which there is an objection;
(h) the basis for the objection; and
(i) if the material or information was previously sealed by the Court in the
pending action, why the materials should not be maintained under seal.
New Jersey Local Civil Rule 5.3(c)(3). In addition, the moving party must include in their
motion to seal papers proposed Findings of Fact and Conclusions of Law.
C. Unauthorized Practice of Law
With respect to an unrepresented entity, the New Jersey Court Rules provide that an
entity “shall neither appear nor file any paper in any action in any court of this State except
through an attorney authorized to practice in this State.” New Jersey Court Rule 1:21-1(c). In
the Comments accompanying the applicable Restatement section, it is explained that:
Every jurisdiction recognizes the right of an individual to proceed “pro se” by

providing his or her own representation in any matter, whether or not the person is
a lawyer. Because the appearance is personal only, it does not involve an issue of
unauthorized practice. The right extends to self-preparation of legal documents and
other kinds of out-of-court legal work as well as to in-court representation.
13
Restatement (Third) of the Law Governing Lawyers § 4 (2000). Further, “[a] pro se pleading is
held to less stringent standards than more formal pleadings drafted by lawyers.” Allen v. New
Jersey Dep't of Human Servs., No. CIVA 06-5229 JBS, 2007 WL 2306664, at *1 (D.N.J. Aug. 8,
2007) citing to Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520
(1972).
VI. Analysis
The question the Court must first consider is whether the documents submitted by Boss,
both while represented by KR and after that representation ended, should be on the docket. For
this inquiry, the Court needs to determine whether those documents are subject to any privilege
or protection, such that they should be stricken. The Non-Waiving Plaintiffs assert that they are
entitled to have these documents stricken based on the attorney-client privilege, as extended to
them pursuant to the community-of-interest privilege. So the first inquiry is whether the material
is privileged. If it is, the Court must consider whether Boss can waive that privilege or whether
the community-of-interest privilege implicates the rights of the Non-Waiving Plaintiffs, such that
Boss cannot waive without their consent.
Even if the documents at issue are not so protected, the inquiry does not end there. The
Non-Waiving Plaintiffs further argue that the documents should be maintained under seal
because they contain confidential information. For this, the Court must consider the strict
guidelines set forth in Rule 5.3 of the Local Civil Rules for filing under seal.
Finally, the Court must consider whether any of the submissions should be stricken
because either Boss or T1D1 has engaged in the unauthorized practice of law.
14
As an initial matter, several documents can be placed on the docket unsealed without
objection. Specifically, there was no objection to Appendix E [currently sealed as Docket Entry
No. 120 at 38-43]; Appendix F [currently sealed as Docket Entry No. 120 at 44-52]; Appendix J
[currently sealed as Docket Entry No. 120 at 68-108] or Appendix R [currently sealed as Docket
Entry No. 120 at 212-214] to the January 28, 2018 letter being placed on the docket. Likewise,
there was no objection to the letter from Boss to Judge Martinotti dated February 5, 2018
[currently sealed as Docket Entry No. 120-3]; the letter from Boss to the undersigned sent to the
Court on February 6, 2018 [currently sealed as Docket Entry No. 120-4]; or the letter from Boss
to Judges Martinotti and Goodman dated February 11, 2018 [currently sealed as Docket Entry
No. 120-7]. Accordingly, the Court does not address these documents further at this time.
Boss and the Non-Waiving Plaintiffs agree that Appendix H [Docket Entry No. 120 at
132-194]; Appendix O1 and Appendix O2 [Docket Entry No. 120 at 132-194]; and Appendix Q
[Docket Entry No. 120 at 203-211] should be sealed. The Court cannot determine where in these
specific documents the attorney-client privilege applies or what specific information is alleged to
be confidential. The Court therefore is reluctant to permanently seal these documents, given that
the Non-Waiving Plaintiffs fail to meet the bases for sealing under Local Civil Rule 5.3. It is
their burden to show that the communications at issue are (1) attorney-client privileged and (2)
that disclosure would cause annoyance, embarrassment, oppression, or undue burden or expense
on the parties. Federal Rule of Civil Procedure 26(c). Agreement of the parties is not sufficient
under L. Civ. R. 5.3. Given that the Court finds they have not met that burden at this point, the
Court denies without prejudice the Non-Waiving Plaintiffs’ request to seal Appendix H (Docket
Entry No. 120 at 132-194); Appendix O1 and Appendix O2 (Docket Entry No. 120 at 132-194);
and Appendix Q (Docket Entry No. 120 at 203-211). The Non-Waiving Plaintiffs have 14 days
15
from the date of this Order to file a Motion to Seal Appendices H, O1, O2, and Q. In this regard,
the Court specifically reminds the parties of the need to clearly articulate the legitimate private or
public interest which warrants the relief sought; the clearly defined and serious injury that would
result if the relief sought is not granted; and why a less restrictive alternative to the relief sought
is not available. Any party seeking to seal documents on the docket must address these factors as
well as the remaining factors in Local Civil Rule 5.3(c).
With respect to the Court’s review of the remaining documents at issue, the Court starts
with the assertion of privilege. The Non-Waiving Plaintiffs submitted a binder, containing all of
the various Boss submissions, each one highlighted with the text the Non-Waiving Plaintiffs seek
to protect. They also provided a chart of the documents, which, according to the Non-Waiving
Plaintiffs, “indicat[es] the Non-Waiving Plaintiffs’ position on why each document should be
stricken or sealed.” (“Attachment A”) [Docket Entry Nos. 132 at 1; 132-1]. The Court has
reviewed each and every one of the documents carefully, with emphasis on the highlighted text,
to determine whether the Non-Waiving Plaintiffs have met their burden. The undersigned finds
that they have not. Indeed, in many instances, it is simply impossible to understand under what
possible circumstances the highlighted text could be deemed to be attorney-client privileged.
Attachment A is no more helpful than the letter brief the Non-Waiving Plaintiffs submitted.
As set forth above, the attorney-client privilege requires certain elements be established
to invoke the protection. In this case, the Non-Waiving Plaintiffs have simply failed to show that
these elements apply to the highlighted portions of many of the documents at issue. At most,
there are representations by Boss as to what KR said, but those representations do not appear to
be giving or seeking legal advice. Indeed, at least one highlighted portion is a mere six word
16
fragment; the Court is at a loss to understand the basis for designating it as privileged. [Docket
Entry No. 120 at 4].
In instances which could be deemed to be privileged communications because Boss is
discussing her views as to how the litigation should be conducted, there is no indication that
these communications relate to anyone other than Boss and T1D1, in which case Boss and T1D1
have the right to waive any such privilege. For example, on pages 5-12 of the same document
discussed above, Boss tells the Court about strategic disagreements she had with counsel and the
direction they wanted to take in this litigation. [Docket Entry No. 120 at 5-12]. Boss goes on at
length about her own views of how the litigation should be managed. [Docket Entry No. 120 at
5-12]. The Court finds no indication as to discussions with any of the Non-Waiving Plaintiffs,
how their rights might be implicated, or why the Court should find a community-of-interest
privilege. Rather, if a privilege adheres to the communications which underly this letter, that
privilege would appear to belong to Boss and is therefore hers to waive.
Nothing in the documents leads the undersigned to conclude that there is a community-
of-interest privilege at play here. The Court also rejects the notion that documents relating to the
tolling agreement are somehow either privileged or confidential. See, e.g., [Docket Entry No.
120 at 1-14]; Appendix K to Boss’ January 27 Letter. In the view of the undersigned, it is
neither. In fact, the record is clear that this document has been viewed and edited not only by
plaintiffs but also by other individuals not covered by the alleged privilege. [Docket Entry No.
120 at pp. 110-120]. Much of the information has been made public, as Plaintiffs’ interim co-
lead counsel advised the Court in his January 30, 2018 correspondence. [Docket Entry No. 94].
Accordingly, the Court concludes that the Non-Waiving Plaintiffs have failed to meet their
17
burden of showing that the highlighted materials should be stricken from the docket or sealed
based on privilege.
Because the Court concludes that there is no privilege protection, the Court must consider
whether the information should be sealed as confidential under Rule 5.3. The Non-Waiving
Plaintiffs recently filed a Motion to Seal, which will be decided separately. 4 At present, the
Court therefore considers only the request to seal set forth in Non-Waiving Plaintiffs’ letter
request. That request to seal has no support other than the argument that this material is
privileged. Because the undersigned disagrees and has already found that the Non-Waiving
Plaintiffs have failed to show that the materials are privileged, the request to seal must also be
denied. Even if this were not the case, the Court would deny the request because it does not
meet the rigorous standard set by Rule 5.3(c)(3) of the Local Civil Rules. In light of the strong
public policy in favor of disclosure, these requirements must be taken seriously and the elements
of Rule 5.3 must be met. Here, they have not been.
The Court next addresses the Non-Waiving Plaintiffs’ argument that in all instances,
Boss’ and T1DF’s submissions by a non-lawyer constitute the unauthorized practice of law, such
that all should be stricken in their entirety. [Docket Entry No. 132 at 1]. For instance, the Non-
Waiving Plaintiffs assert that the January 26, 2017 correspondence from Julia Boss to Judge
Martinotti should be stricken because it is signed by Julia Boss, with the title “President Type 1
Diabetes Defense Foundation” under her name. See id. at 13. The Court finds that regardless of
whether Boss included her title with the T1DF with her signature line, she is permitted to sign
the letter personally as a pro se plaintiff. The Court does not deem the submission of this letter
4
The documents listed in Table 2 of Attachment A to KR’s letter are included in the Non-Waiving Plaintiffs’
Motion to Seal. [Docket Entry No. 179]. Because the documents identified in Table 2 are not part of the documents
on the Boss List, the Court will not address those documents at this time but will address them in the Motion to Seal
at a later date.
18
or any other letter similarly signed by Boss as an unauthorized practice of law and denies the
request to strike on this basis.
The same is true with regard to the January 28, 2018 cover letter to Judge Martinotti
[Docket Entry No. 120-1]. The Non-Waiving Plaintiffs argue that it should be stricken because
it was signed by Julia Boss, individually and o/b/o the Type 1 Diabetes Defense Foundation.
The undersigned is not persuaded, given that Boss is permitted to submit correspondence on her
own behalf as a pro se party. The Court will unseal this letter, which is at Docket Entry No. 120-
1. The Court declines to accept the letter as having been submitted on behalf of T1DF, however,
given that Boss, a non-attorney, cannot represent T1DF in court proceedings.
With regard to correspondence signed by Boss that was emailed by Charles Fournier,
Vice President, T1DF, the Court again finds that there is no basis to strike. The fact that
Fournier emailed it on her behalf does not negate her right to submit correspondence on her own
behalf. Accordingly, any correspondence signed by Boss but submitted via email by Fournier
will not be stricken on the basis of the unauthorized practice of law.
Finally, the Non-Waiving Plaintiffs submit that correspondence that is signed by both
Boss, individually and on behalf of T1DF, and by Charles Fournier on behalf of T1DF should be
stricken. The Court does not agree. As long as Boss has signed the document as a pro se
plaintiff, the letter will not be deemed to be the unauthorized practice of law. The submission
will not, however, be deemed to have been filed on behalf of T1DF; it is only accepted on behalf
of Boss.
19
VII. Conclusion
The Non-Waiving Plaintiffs have failed to establish that the attorney-client privilege or
the community-of-interest privilege apply, and thus the Court will not strike any of the
documents from the docket. Further, whereas the Non-Waiving Plaintiffs have failed to meet the
burden for sealing documents, the Court will unseal all the documents on the Boss List, subject
to a 15 day delay. Finally, the Court denies the request to strike any of the documents submitted
by Boss as a pro se plaintiff based on the unauthorized practice of law.
For the foregoing reasons, and for good cause shown,
IT IS on this 2nd day of August, 2018,
ORDERED that the documents on the Boss List [Docket Entry No. 117 in 17-699;
Docket Entry No. 117 in 17-12031; Docket Entry No. 188 in 17-13066], which have been
temporarily sealed on the docket at Docket Entry No. 120 in 17-699; Docket Entry No. in 118-
12031, and Docket Entry No. 189 in 17-13066, shall be maintained in status quo until 15 days
from the date of this Order at which time, if no appeal of this Order has been filed and/or if no
Motion to Seal regarding these documents has been filed, the Clerk’s Office shall then unseal
and place on the docket in chronological order the documents on the Boss List; and it is further
ORDERED that Plaintiff Julia Boss having advised that her Motion for Reconsideration
[Docket Entry No. 152] is moot, the Clerk’s Office is hereby instructed to terminate Docket
Entry Number 152.
_______
LOIS H. GOODMAN
United States Magistrate Judge
20

2018-08-1 - Insulin Litigation - DE 17-699 Final Order - Julia Boss Papers

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2018-08-1 - Insulin Litigation - DE 17-699 Final Order - Julia Boss Papers

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Case 3:17-cv-00699-BRM-LHG Document 184 Filed 08/02/18 Page 1 of 20 PageID: 3610

UNITED STATES DISTRICT COURT

IN RE INSULIN PRICING LITIGATION

BEWLEY, et al., Civil Action No. 17-12031 (BRM)(LHG)

CVS HEALTH CORP., et al.,

PRESCOTT, et al., Civil Action No. 17-13066 (BRM)(LHG)

II. Factual and Procedural History

in this District against various pharmaceutical defendants, insurers, and manufacturing

Litigation, Civil Action No. 17-699 (“Insulin Pricing”).

plaintiffs in both of these cases as well.

guidance in the event that new counsel did not appear.

objections by April 9, 2018. Id.

Order. [Docket Entry No. 152].

On behalf of various plaintiffs it continues to represent, including Diane Halkyard, Ruth

on July 5, 2018. [Docket Entry No. 182].

III. Issues Presented to the Court

community-of-interest privilege shared by the Non-Waiving Plaintiffs; (3) if the documents on

IV. Arguments of the Parties

A. Non-Waiving Plaintiffs’ Arguments

it would be "inappropriate for a single plaintiff to be allowed to waive the

common counsel. Id. at 2.

embarrassment, oppression, or undue burden or expense’ to any person or party.” Id. at 4

members that do not have a direct claim of privilege. Id. at 5.

and authorization requirement would be extinguished by my termination of KR’s retainer on

online since February 2017. Id.

become moot. Id. at pg. 5.

“contradicts their counterfactual allegations of joint representation with other plaintiffs.” In

acts as a waiver of any privilege that might exist. Id.

C. Manufacturer Defendants’ Objections

In the Prescott Case, the manufacturer defendants (“Prescott Manufacturer Defendants”)

Id. at 2 (citations omitted).

Further, the Prescott Manufacturer Defendants argue that publicly disclosed

Prescott Manufacturer Defendants contend that

of KR’s other clients.” Id. at 1-2.

A. Attorney-Client and Community-of-Interest Privilege

client privilege, as extended to them by the community-of-interest privilege.

“The attorney-client privilege protects communications between attorneys and clients

determining the applicability of the privilege is confidentiality. The attorney-client privilege

263 F.R.D. 142, 145 (D. Del. 2009).

having to disclose it to others.” In re Teleglobe, 493 F.3d at 364. The community-of-interest

communication.” Restatement (Third) of the Law Governing Lawyers § 76 (2000). The

of-interest privilege remains on the party asserting the privilege. Id.

B. Confidential Information Subject to Sealing Pursuant to Rule 5.3

is required to provide an index that describes with particularity:

(a) the nature of the materials or proceedings at issue;

motion to seal papers proposed Findings of Fact and Conclusions of Law.

C. Unauthorized Practice of Law

the Comments accompanying the applicable Restatement section, it is explained that:

Every jurisdiction recognizes the right of an individual to proceed “pro se” by

Boss cannot waive without their consent.

well as the remaining factors in Local Civil Rule 5.3(c).

possible circumstances the highlighted text could be deemed to be attorney-client privileged.

Entry No. 120 at 4].

In instances which could be deemed to be privileged communications because Boss is

privilege would appear to belong to Boss and is therefore hers to waive.

of Rule 5.3 must be met. Here, they have not been.

request to strike on this basis.

given that Boss, a non-attorney, cannot represent T1DF in court proceedings.

will not be stricken on the basis of the unauthorized practice of law.

by Boss as a pro se plaintiff based on the unauthorized practice of law.

For the foregoing reasons, and for good cause shown,

IT IS on this 2nd day of August, 2018,

Entry Number 152.

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