Antitrust Law Daily Wrap Up, ANTITRUST—E.D. Pa.: Motion to compel discovery granted in FTC AndroGel suit, (Dec 17, 2015)

By Michael Menzhuber, J.D., LL.M.

The FTC motion to compel production of documents withheld or redacted during discovery by the defendant pharmaceutical companies was granted in part, and denied in part, by the federal district court in Philadelphia (Federal Trade Commission v. AbbVie, Inc., December 14, 2015, Bartle, H.).

In 2014, the FTC filed an action against AbbVie Inc. and its partner Besins Healthcare Inc. which alleged that they filed sham patent infringement lawsuits against potential generic competitors to delay the introduction of lower-priced versions of AndroGel. The FTC later filed a motion to compel the production of documents withheld or redacted during discovery by AbbVie and Besins.

Besin documents. The FTC sought four documents from Besin, which Besin argued were all protected under the attorney-client privilege. The court determined that the first two documents were not protected because: (1) the first document merely contained an unprivileged fact provided by an attorney that did not reflect client confidences; and (2) the second document contained an attorney’s business strategy, rather than a course of action to address legal concerns.

The court determined that the attorney-client privilege did apply to the remaining to documents because: (1) the third document was a confidential communication by a client to its attorney for the purpose of obtaining legal counsel; and (2) the fourth document contained an exchange of technical information necessary for securing legal services or legal advice, and the attorney client privilege was not waived by the disclosure of this communication to third party consultants.

AbbVie documents. Additionally, the FTC sought 41 documents from AbbVie. With respect to the first 18 documents, AbbVie claimed protection under the work product doctrine. The court agreed. Relying on sworn declarations, and its own in camera review, it determined that they were all prepared at counsel’s request and in anticipation of litigation.

AbbVie claimed that the 19th document, which contained an e-mail thread, was protected under the attorney client privilege. The court, however, determined that AbbVie did not meet its burden to demonstrate that the email was sent to in-house counsel for the purposes of securing legal advice rather than business advice. AbbVie next contended that documents 22, 23, 24, and 29 were protected under the work product doctrine and that the attorney client privileged applied for documents 20, 22, 23, 24, 25, 26, 27, 28, 29, and 30. The court disagreed and determined that the work product doctrine did not apply to documents 22, 23, 24, and 29 since they were not prepared due to litigation.

The court also determined that the attorney client privilege did not apply to: (1) documents 22 and 23 because there was no evidence that they contained legal issues; (2) documents 20, 25, 26, and 27 because there was no evidence that they were made for the purpose of obtaining or providing legal advice; (3) document 24 because it was created pursuant to a business strategy; and (4) documents 29 and 30 because, although purported to contain legal advice, they were prepared by a non-attorney.

The court found that the attorney client privilege did apply to documents 31 to 34. The documents were emails between privileged persons sent of the purpose of providing legal advice and a third party’s participation in these emails did not result in a waiver of the privilege. However, AbbVie’s contention that the email documents 35 to 39 were protected under the attorney client privilege was rejected. The only attorney recipient of these emails was merely copied on the emails and did not contribute to the discussion and the emails concerned a business strategy, not a legal strategy.

Finally, the court determined that document 40 was protected under the attorney client privilege because it discussed and conveyed an attorney’s legal impressions for the purpose of providing advice. Document 41 was not protected by the attorney client privilege, however, since it was created by a business employee for the purpose of planning a business strategy. It was also not protected by the work product doctrine because there was no evidence as to how it related to anticipated litigation.

The case number is 14-5151.

Attorneys: Markus Meier for the Federal Trade Commission. Adam R. Lawton (Munger Tolles & Olson LLP) and Paul H. Saint-Antoine (Drinker, Biddle & Reath LLP) for AbbVie Inc., Abbott Laboratories, Unimed Pharmaceuticals, LLC, and Besins Healthcare, Inc. Christopher T. Holding (Goodwin Procter LLP), Gregory L. Skidmore (Kirkland Ellis LLP) and Joseph E. Wolfson (Stevens & Lee) for Teva Pharmaceuticals USA, Inc.

Companies: AbbVie Inc.; Abbott Laboratories; Unimed Pharmaceuticals, LLC; Besins Healthcare, Inc.; Teva Pharmaceuticals USA, Inc.

Cases: Antitrust PennsylvaniaNews