Antitrust Law Daily Wrap Up, ANTITRUST—N.D. Ill.: Protein therapy purchasers cannot depose trade association counsel in price fixing action, (Sep 19, 2013)

By Tobias J. Gillett, J.D., LL.M.

In a putative class action lawsuit against producers of plasma-derivate protein therapies and a trade association of such producers for allegedly fixing the price of the therapies, purchasers of the therapies cannot depose counsel for the trade association about purportedly improper discussions occurring at the group’s meetings, the federal district court in Chicago has ruled (In re: Plasma-Derivative Protein Therapies Antitrust Litigation, September 18, 2013, Keys, A.).

Direct purchasers of immune globulin and albumin, two plasma-derivate protein therapies, filed suit against two producers of the therapies, CSL Limited and Baxter International Inc., and the Plasma Protein Therapeutics Association (PPTA), a trade association of producers of plasma-derivative protein therapies, alleging that they conspired to restrict the output and increase the price of those therapies. The purchasers sought to depose PPTA’s former General Counsel and its in-house counsel, asserting that they had knowledge regarding improper pricing and supply discussions that occurred at certain PPTA meetings. The purchasers claimed that other deposition witnesses had generally testified that they did not recall those discussions, but that the counsel would have taken notes and drafted minutes at them, and thus should recall them. PPTA moved for a protective order.

The court explained that a party seeking to depose an opposing party’s attorney must satisfy a four part test from the Eighth Circuit’s 1987 decision in Shelton v. American Motors Corp., 805 F.2d 1323, and show that “(1) the information sought is relevant to a major issue in the case; (2) there is no other means for obtaining the relevant information; (3) the need for the information outweighs the inherent risks of deposing opposition counsel; and (4) the information sought is not privileged.”

The court granted the motion for a protective order, concluding that, although the information the purchasers sought was “relevant to the major issues in the case,” the purchasers did not sufficiently demonstrate that they lacked “other means for obtaining the relevant information.” The purchasers had contended that “many of Defendants’ witnesses have been generally unable to recall details of meetings,” and identified four specific meetings where information exchanged could be relevant to their claims, but did not show that other individuals at those meetings were unable to testify about them. Moreover, the purchasers’ use of the term “generally” led the court “to believe that one or more the witnesses deposed have been perhaps somewhat able to aid in providing some detail of those meetings,” and most of the testimony cited by the purchasers did not refer to the four meetings they identified. Finally, other methods, such as written interrogatories, requests for products, or requests for admission, should be explored before taking the “highly unusual” step of deposing an attorney, according to the court.

Since the court had found that the purchasers had other sources for the information that they had not exhausted, the court also found that the purchasers’ need for the information did not outweigh the risks of deposing PPTA’s counsel.

The court rejected the purchasers’ argument that none of the discussions at the PPTA meetings were privileged “because Octopharma—one of the attendees at the PPTA meetings—viewed itself as not having a common interest with PPTA and not being represented by PPTA counsel.” Octopharma’s common interest with PPTA allegedly ended after the four meetings identified by the purchasers, and therefore Octapharma’s presence at them did not affect the privilege of the information sought.

The court also rejected the purchasers’ contention that the defendants had waived the privilege by putting the counsel’s antitrust guidance at issue, observing that no defendant had raised advice of counsel or any other defense that would put the advice at issue. The testimony of witnesses that had been deposed did not put the advice at issue by testifying that counsel had attended the meetings for antitrust compliance purposes, because that was “legally appropriate and the type of advice the privilege is designed for.” Moreover, only PPTA held the privilege, not its members, and only PPTA could waive it.

The case is Nos. 09 C 7666 and 11 C 1468.

Attorneys: Aimee H. Goldstein (Simpson Thacher & Bartlett LLP) for CSL Limited. David J. Zott (Kirkland & Ellis LLP) and Michael Sennett (Jones Day) for Baxter International Inc. Joanna Elizabeth Baden-Mayer (Kelley Drey & Warren LLP) for Plasma Protein Therapeutics Assn.

Companies: CSL Limited; Baxter International Inc.; Plasma Protein Therapeutics Association

Cases: Antitrust IllinoisNews