Federal Trade Commission v. Boehringer Ingelheim Pharmaceuticals, Inc.
414 U.S. App. D.C. 188
| D.C. Cir. | 2015Background
- FTC investigated a patent settlement between Boehringer Ingelheim and Barr amid an antitrust probe into potential settlement overpayments and delaying generic entry.
- Boehringer withheld hundreds of responsive documents under work product and attorney-client privilege during subpoena compliance.
- District Court conducted in-camera review of a sample and largely sustained Boehringer’s withholding.
- FTC challenged (a) whether co-promotion and related settlement materials were prepared in anticipation of litigation, and (b) the District Court’s broad definition of opinion work product.
- Court remanded for further consideration of post-settlement documents and for a corrected analysis of whether documents constitute fact or opinion work product; vacated and affirmed in part.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether co-promotion materials were prepared in anticipation of litigation | FTC argues these were ordinary business terms, not litigation-focused | Boehringer contends they were integral to a settlement and thus protected | Co-promotion materials may be protected as work product; remanded for post-settlement analysis |
| Proper scope of opinion vs. fact work product | FTC asserts broader access to factual components without revealing legal opinions | District Court misapplied the distinction by overly broad labeling as opinion work product | Distinction misapplied; remand to reassess with correct standard for fact vs. opinion work product |
| Whether the FTC demonstrated substantial need/undue hardship for the financial analyses | FTC has substantial need for unique financial analyses | Bohringer contends analyses are not uniquely unavailable and could be reproduced | Remand to determine which sampled documents may be produced as factual work product; privilege issues to be reassessed |
| Temporal/document-date accuracy in relation to anticipation of litigation | Some documents post-date settlement but still relate to anticipated litigation | Dates suggest post-settlement creation; grounds for protection unclear | Remand to examine whether documents created after settlement were still prepared in anticipation of litigation |
| Overall standard of review for district court’s subpoena ruling | Abuse of discretion if legal standards misapplied | District Court properly exercised discretion but may have misapplied standards | Partial vacatur and remand consistent with clarified standards |
Key Cases Cited
- Hickman v. Taylor, 329 U.S. 495 (U.S. 1947) (origin of work product privilege; necessity of protecting lawyer's prep)
- United States v. Deloitte LLP, 610 F.3d 129 (D.C. Cir. 2010) (tests for anticipation of litigation; 'because of' standard)
- In re Sealed Case, 676 F.2d 793 (D.C. Cir. 1982) (work product scope and its protection beyond privilege; note on mixed materials)
- In re Sealed Case, 146 F.3d 881 (D.C. Cir. 1998) (redaction and separation of fact vs. opinion work product)
- Texaco, Inc., 555 F.2d 862 (D.C. Cir. 1977) (investigative subpoena context; limits on relevance for discovery)
- Linde Thomson Langworthy Kohn & Van Dyke v. Resolution Trust Corp., 5 F.3d 1508 (D.C. Cir. 1993) (anti-freeloader rationale; substantial need standard origin)
- Guilford Nat’l Bank v. Southern Ry., 297 F.2d 921 (4th Cir. 1962) (special circumstances in obtaining witness statements; relevance balancing)
- Mitchell v. Bass, 252 F.2d 513 (8th Cir. 1958) (special showing for discovery of witness statements)
- Burke v. United States, 32 F.R.D. 213 (E.D.N.Y. 1963) (special circumstances for discovery; early Rule 34 context)
- Lanham, 403 F.2d 119 (5th Cir. 1968) (list of circumstances where witness statements discoverable)