892 F.3d 1264
D.C. Cir.2018Background
- Boehringer (brand-name drug patent holder) settled with Barr (generic) in a reverse-payment settlement after patent litigation threats; FTC investigated for antitrust concerns.
- FTC subpoenaed Boehringer documents from its 2008 negotiations; Boehringer withheld many as attorney-client or work-product privileged.
- District Court reviewed disputed documents in camera (after parties sampled documents and submitted supporting affidavits) and held the communications were protected by attorney-client privilege; some documents were addressed under work-product rules on remand.
- Boehringer appealed the attorney-client ruling; FTC challenged the legal standard and some factual findings. This panel reviews legal issues de novo and factual findings for clear error.
- The core factual material: employees provided facts to general counsel Marla Persky at her request to enable legal/antitrust advice about potential settlement; Persky also communicated legal advice to executives about settlement strategy.
- Court concluded privilege protects communications conveying facts to counsel and counsel’s legal advice when one significant purpose was legal advice, but not underlying facts or pre-existing business documents.
Issues
| Issue | Plaintiff's Argument (FTC) | Defendant's Argument (Boehringer) | Held |
|---|---|---|---|
| Whether attorney-client privilege covers employee-to-counsel communications about settlement | Privilege should not shield communications primarily serving business/settlement negotiation purposes | Communications were made at general counsel’s request and one significant purpose was to obtain legal/antitrust advice | Privileged: legal advice was one of the significant purposes, so communications protected |
| Proper test for mixed-purpose communications | District Court used an incorrect standard (FTC argued) | Use the Kellogg approach: privilege applies if legal advice was one of the significant purposes | Court affirms Kellogg standard: determine whether legal advice was one significant purpose (not single "primary" purpose) |
| Burden and adequacy of proof of privilege for each document | FTC contended Boehringer’s assertions/logs were insufficient | Boehringer provided in-camera documents, affidavits, and a representative sample showing legal purpose | District Court’s fact findings that Boehringer met its burden are not clearly erroneous; deference owed to in-camera review |
| Scope of privilege vis-à-vis underlying facts and pre-existing business documents | FTC sought access to underlying factual data and pre-existing business docs | Boehringer argued communications of facts to counsel are protected when for legal advice | Court: privilege protects the communications but not the underlying facts or pre-existing business documents; FTC may discover underlying facts |
Key Cases Cited
- In re Kellogg Brown & Root, Inc., 756 F.3d 754 (D.C. Cir.) (adopting test that legal advice need only be one of the significant purposes for privilege when communications have mixed purposes)
- Upjohn Co. v. United States, 449 U.S. 383 (Sup. Ct.) (attorney-client privilege protects communications to corporate counsel, but not underlying facts)
- FTC v. Actavis, Inc., 570 U.S. 136 (Sup. Ct.) (legal framework for evaluating reverse-payment settlements under antitrust law)
- United States v. Legal Services for New York City, 249 F.3d 1077 (D.C. Cir.) (burden on privilege proponent to establish applicability to each communication)
- FTC v. Boehringer Ingelheim Pharmaceuticals, Inc., 778 F.3d 142 (D.C. Cir.) (prior panel decision addressing work-product issues in this case)