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'Call'ing All Pharmaceutical Manufacturers: An Update on the Legal Implications of Sales Representative Call Notes

March 10, 2017 - Bloomberg Law Pharmaceutical Law & Industry Report
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by Sanford Watson and Christopher Pantoja, published in Bloomberg Law Pharmaceutical Law & Industry Report

Consistent messaging with physician customers can often lead to an increase in sales performance for pharmaceutical sales representatives. To achieve the desired consistency, pharmaceutical manufacturers provide various means by which sales representatives can track their interactions with their customer physicians and document important information specific to each customer. One of the most widely used methods for tracking physician/customer interactions is creating"call notes." Call notes record important information from sales calls with physicians and are typically stored in company-created databases. Reviewing prior call notes before making the next sales call theoretically allows the representatives to build on their previous conversations and focus on a specific customer’s hot buttons in hopes of increasing sales. Call notes also allow the manufacturer to track the productivity of their sales representatives.

BUT BEWARE! In today’s pharmaceutical industry that is so often subject to litigation, it can be easy for call notes to be taken out of context and used by plaintiffs' attorneys—who are often able to obtain these call notes through written discovery—as a means to inflame the jury. As such, defense attorneys should know how to effectively argue for limiting the scope of discovery and the admissibility of call notes.

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