180 F. Supp. 3d 1
D.D.C.2016Background
- FTC subpoenaed Boehringer for documents about patent litigation and settlement with Barr (co-promotion agreement, forecasts, financial analyses) to investigate potential antitrust/unfair competition conduct.
- Boehringer withheld many documents claiming work-product and attorney-client privilege; the district court reviewed a representative sample in camera and initially treated many as opinion work product or privileged communications.
- D.C. Circuit affirmed that the co-promotion agreement and most related materials were prepared in anticipation of litigation, reversed the district court’s broad characterization of opinion work product, and remanded to assess fact vs. opinion work product and attorney-client privilege independently.
- On remand the magistrate reviewed the appellate subset of documents, denied Boehringer’s request to file a supplemental ex parte affidavit, and re-evaluated whether documents were fact or opinion work product and whether attorney-client privilege independently protected them.
- Court concluded most contested financial charts/analyses are fact work product (not opinion work product), but many of those same documents were nonetheless protected by the attorney-client privilege because they were prepared at counsel’s direction to enable legal advice.
- Court ordered production of a limited set of documents that were only fact work product and not covered by attorney-client privilege; it sustained privilege for the remainder (and protected attorney-containing emails and email chains conveying legal advice).
Issues
| Issue | Plaintiff's Argument (FTC) | Defendant's Argument (Boehringer) | Held |
|---|---|---|---|
| Whether financial analyses/forecasts were prepared "in anticipation of litigation" (work-product threshold) | Documents are business records, not litigation-driven; FTC ultimately conceded post-settlement docs were work product | Analyses were created at counsel's request during settlement and thus were in anticipation of litigation | D.C. Circuit and this Court: documents were prepared because of litigation (work-product threshold satisfied) |
| Whether documents are opinion work product (protected heavily) or fact work product (less protected) | FTC: many materials are factual and segregable; no showing they reveal attorneys' mental impressions | Boehringer: counsel’s selection of variables and use of analyses reflect legal impressions and settlement strategy | Court: most documents are fact work product, not opinion work product; only three email chains revealed counsel’s mental impressions and were opinion work product |
| Whether attorney-client privilege independently protects attachments (spreadsheets, PowerPoints, charts) | FTC: attachments are ordinary business documents; copying counsel does not make them privileged | Boehringer: analyses were prepared at counsel’s direction to enable legal advice; legal purpose was one significant purpose | Court: attorney-client privilege applies to many attachments because one significant purpose was legal advice; attachments prepared at counsel’s direction are privileged |
| Whether ex parte affidavit from in-house counsel (Persky) should be considered on remand | FTC: ex parte affidavits are disfavored and unnecessary; foundational facts are non-privileged and adequate | Boehringer: affidavit needed to explain why documents reflect counsel’s mental impressions and to avoid a "double bind" | Court: denied leave for supplemental ex parte affidavit as unnecessary and unsupported; reviewed filed material and held affidavit would not change rulings |
Key Cases Cited
- Hickman v. Taylor, 329 U.S. 495 (U.S. 1947) (formative statement of work-product doctrine protecting attorneys’ preparation)
- Upjohn Co. v. United States, 449 U.S. 383 (U.S. 1981) (attorney-client privilege applies in corporate context; protects communications and facts gathered at counsel’s request)
- United States v. Deloitte LLP, 610 F.3d 129 (D.C. Cir. 2010) ("because of" test for documents prepared in anticipation of litigation)
- Dir., Office of Thrift Supervision v. Vinson & Elkins, 124 F.3d 1304 (D.C. Cir. 1997) (opinion work product is highly protected)
- In re Kellogg Brown & Root, Inc., 756 F.3d 754 (D.C. Cir. 2014) (primary-purpose test for attorney-client privilege in corporate investigations)
- FTC v. Boehringer Ingelheim Pharm., Inc. (Boehringer II), 778 F.3d 142 (D.C. Cir. 2015) (appellate decision affirming "in anticipation of litigation" and remanding fact vs. opinion work-product/privilege issues)