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Attorney-Client Privilege Wins in FTC - Pharma Dispute

By George Khoury, Esq. on July 06, 2018 | Last updated on March 21, 2019

In an opinion out of the D.C. Circuit Court of Appeals, the massive pharma company Boehringer seems to have squeezed out a narrow victory in a rather large discovery dispute over attorney-client privileged communications between corporate employees and corporate attorneys.

And while the court upheld the district court's ruling that attorney-client privilege applied to the communications between employee and attorney, the underlying facts of the communication could nevertheless be fair game.

What's This About?

The short story behind this case involves the FTC investigating Boehringer for an allegedly anti-competitive reverse payment settlement in a patent infringement claim. The FTC then sought certain communications between employees and the company's attorneys, which resulted in the district court denying the request for those communications.

These types of settlements, while not wholly uncommon in the pharma and patent world, raise the ire of the FTC due to the inherently anti-competitiveness of settling infringement claims in this manner. However, as the court explained, when a communication has the purpose, or is partly for the purpose of, obtaining legal advice, or helping the company do so, it is protected by attorney-client privilege, even if purely business matters are also addressed.

Limited Decision

In a concurring opinion, one of the panel judges stressed that the decision is limited to this matter and does not really change anything for the way attorney-client communications are assessed. The concurrence explains that the matter had an extensive record with multiple stipulations by the parties which guided, and severely limited, the court's decision in, and to, this one case.

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