Antitrust Law Daily Wrap Up, ANTITRUST—DMass: Court Offers Rules for Asserting Privilege in Prograf Class Action, (May 6, 2013)

By Jeffrey May, J.D.

The federal district court in Boston has decided to hold off on appointing a special master to resolve discovery disputes in an antitrust class action against Astellas Pharma US, Inc., the manufacturer of the prescription drug Prograf. The court reserved ruling on the plaintiff's motion for appointment of a special master pursuant to Federal Rule of Civil Procedure 53 and provided a set of rules to guide the Astellas in assessing application of the attorney-client privilege and work product protection. If the parties were unable to reach agreement, then the court would appoint a special master to conduct an initial review of a limited sampling of disputed documents chosen by the plaintiffs (In Re: Prograf Antitrust Litigation, May 3, 2013, Zobel, R.).

Because Astellas had been "overly conservative in its application of privilege," the court in an effort to "encourage Astellas to be more freehanded in its production," instituted a "safe harbor" policy. Under this policy, during this particular stage of discovery, Astellas would be permitted to retract wrongly produced material without waiving the privilege.

The plaintiffs alleged that Astellas foreclosed generic competition to its branded prescription immunosuppressant Prograf by filing an objectively baseless citizen petition with the Food and Drug Administration to delay entry of a generic competitor that had sought the agency's approval to market and sell generic tacrolimus capsules. In pointing out particular communications that would be protected by the attorney-client privilege, the court noted that communications between Astellas’s in-house counsel and outside counsel, seeking or receiving legal advice regarding the drafting and filing of the citizen petition were protected.

The court also explained the particular circumstances under which communications from Astellas employees to inside counsel for the purpose of seeking or receiving legal advice regarding the drafting and filing of the petition were protected by privilege. However, it was noted that communications by the inside counsel pertaining to business matters, including the petition’s factual and technical content, objective merit, and timing of filing, were not privileged. Drafts of the citizen petition shared between counsel and Astellas employees that were prepared by, or at the direction, request, or advice of counsel also were privileged, in the court's view.

In addition, the court noted that communications between either Astellas or outside counsel and employees of two public relations firms were neither privileged nor protected work product.

The case is No. 1:11-md-2242-RWZ.

Attorneys: Thomas M. Sobol (Hagens Berman Sobol Shapiro LLP) for Stephen L. LaFrance Holdings, Inc. Jonathan Gerstein (Garwin Gerstein & Fisher LLP) for Louisiana Wholesale Drug Co. Allison W. Reimann (Sidley Austin LLP) for Defendant Astellas Pharma US, Inc.

Companies: Astellas Pharma US, Inc.

Cases: Antitrust MassachusettsNews