Antitrust Law Daily Wrap Up, ANTITRUST—D. Kan.: Teva prevails in clone discovery dispute highlighting distinction between privilege and confidentiality, (Jun 10, 2026)

By Justin Marcus Smith, J.D.

The court agreed with the Teva that privilege and confidentiality are separate and distinct protections.

In a dispute about whether certain Teva internal documents could be used in parallel litigation, “highly confidential” designations remained proper pursuant to a previously stipulated protective order, despite a separate finding that they fell under the crime-fraud exception to privilege, held the federal district court in Kansas City, Kansas. The court found the challenged documents were related to the settlement of patent litigation or negotiations, and the Teva defendants had a reasonable and good faith belief the information was so sensitive that disclosure could cause injury. The court denied the plaintiffs’ motion to remove or “de-designate” the previously agreed “highly confidential” designation of the challenged documents. There was no doubt that the parties had stipulated earlier that even the use of merely “confidential” information would be categorically limited to the instant litigation and appeals therefrom. The court granted in part the Teva defendants’ motion to seal. The disputed documents would now be permanently sealed, but the Teva defendants would have to file another motion to redact certain motion practice documents (Burge v. Teva Pharmaceuticals Industries, Ltd., No. 2:22-cv-02501-DDC-TJJ (D. Kan. Jun. 9, 2026)).

Background. Nuvigil® patent owner Teva Pharmaceutical Industries Ltd. (Teva) sued Mylan N.V. (Mylan), now Viatris, Inc., for patent infringement. Teva and Mylan settled their lawsuits through a series of agreements such that Teva paid Mylan to delay selling armodafinil, thus extending Teva’s Nuvigil® monopoly, and Teva agreed to refrain from selling generic epinephrine auto-injectors, thus extending Mylan’s EpiPen® monopoly.

Some individuals, entities, and governmental units then filed a putative class action lawsuit against Teva and related entities (collectively, Teva), alleging that the combined EpiPen® and Nuvigil® lawsuit settlements violated the antitrust laws and the RICO statutes.

After the Sherman Act claims and some state law claims survived dismissal, Teva prevailed in part on a motion to compel the plaintiffs’ firms to produce non-public solicitations to other potential plaintiffs (see Antitrust Law Daily, May 28, 2025).

At this point, the plaintiffs were pursuing four claims: (1) a Sherman Act claim; (2) claims for conspiracy and combination in restraint of trade under various state laws; (3) claims for monopolization under various state laws; and, (4) a Racketeer Influenced and Corrupt Organizations Act (RICO) claim.

Privilege dispute. After substantial completion of phase I document production and service of the defendants’ privilege log, the plaintiffs moved to compel production of documents withheld on privilege grounds. The plaintiffs argued the crime-fraud exception nullified any privilege claim.

The court found the crime-fraud exception applied to documents related to alleged Teva fraudulent concealment. After an in camera review, the court found some but not all of the redacted communications between the defendants and their attorneys to be probative of the specific allegations of fraudulent concealment. The court ordered the defendants to produce 31 emails either fully unredacted or with specific redactions removed.

The district court judge denied the defendants’ subsequent objections, and the defendants produced the unredacted, putative “crime-fraud emails” to plaintiffs in January, 2026. The defendants maintained the designations of these documents as “highly confidential” under a stipulated protective order.

Pennington actions. Meanwhile, plaintiffs’ counsel filed two new actions asserting essentially identical claims for other plaintiffs against the same defendants named in this case in New York and California. These cases ended up consolidated in the District of Kansas with Pennington, No. 25-2737, as the lead case.

Counsel for the parties in Pennington, the same counsel as in the instant case, agreed to defer scheduling until after the court decides a motion to dismiss filed by the defendants in Pennington. With discovery yet to start in Pennington, plaintiffs’ counsel raised the issue of using the materials and challenged documents from the instant matter in Pennington. Defendants’ counsel refused to consent unless and until Pennington enters discovery.

The plaintiffs’ instant motion to de-designate the 31 putative crime-fraud documents (challenged documents) as “highly confidential” under the parties’ stipulated protective order followed. The plaintiffs argued the challenged documents should be de-designated because the court previously ordered them produced unredacted in part or full. The defendants filed a corresponding motion to seal requesting an order permanently sealing the provisionally-sealed challenged documents that the plaintiffs filed as exhibits to their reply to the plaintiffs’ motion to de-designate.

De-designation denied. The court denied the plaintiffs’ motion to de-designate. The court found the defendants met their burden to show their highly confidential designations for the challenged documents were proper.

The defendants grouped the challenged documents into three categories:

1. documents about Teva’s business consideration and strategy when drafting press releases about litigation settlements, including in-house counsel discussion of legal considerations for press releases;

2. documents about Teva’s internal considerations and business strategies when interacting with the government and government regulators, including discussions with outside counsel about legal advice and internal business strategies; and,

3. documents about Teva and non-parties’ settlement negotiations of the two underlying patent litigations underpinning this action, which may show Teva internal business and legal strategies and considerations.

The court found the challenged documents were related to settlement of patent litigation or negotiations thereof. As such, they fell within the protections of the stipulated protective order for highly confidential information. A review of even the category (ii) documents, which did not mention settlement, showed they were emails about Teva communications with the government and government regulators prompted by and about the patent litigation settlements.

The court also found the defendants met their burden to show they had a reasonable and good faith belief that the nature of the documents was sufficiently sensitive that disclosure could injure the defendants. The documents concerned internal litigation strategy and analysis of patent settlements and negotiations.

The fact that the court previously required the defendants to remove certain documents from their privilege log and produce them, in full or in part, pursuant to the crime-fraud exception, did not eliminate their confidential or highly confidential status under the protective order, nor did it diminish the Fed. R. Civ. P. 26(c) protections for commercially sensitive business information. The court agreed with the defendants that privilege and confidentiality were not necessarily coterminous, and the plaintiffs did not previously challenge the “highly confidential” designations.

Next, the court rejected the plaintiffs’ argument that the loss of attorney-client privilege necessarily vitiated the confidentiality protections for the challenged documents. The court explained that privileged documents are not discoverable, but “confidential” or “highly confidential” documents under the provisions of the parties’ agreed protective order were producible subject to certain limitations on disclosure and use, such as disclosure to nonparties, or use of the document outside the litigation. The parties made their stipulated agreement to the protective order “crystal clear” that even the use of merely “confidential” information was categorically limited to the instant litigation and appeals therefrom.

The court disagreed with the defendants that the plaintiffs’ motion to remove the “highly confidential” designation of the challenged documents violated the protective order.

Sealing partly granted. The court granted the defendants’ motion to permanently seal the 31 challenged documents. The court found the defendants asserted a confidentiality interest that outweighed the public right of access to the documents because “serious injury” would result without restricted access to the highly confidential information contained in the documents.

The court said the defendants may file another motion requesting redaction of certain motion documents and propose specific redactions of the descriptions of the challenged documents.

The Case is No. 2:22-cv-02501-DDC-TJJ.

Judge: James, T.

Attorneys: Alison Elizabeth Chase (Keller Rohrback, LLP) for Dena Burge. Alexandra I. Russell (Goodwin Procter, LLP) for Teva Pharmaceuticals Industries, Ltd.

Companies: Teva Pharmaceuticals Industries, Ltd.

Cases: Antitrust RICO KansasNews