In Re: Aggrenox Antitrust Litigation, 3:14-md-02516

Background

This is a discovery dispute in In re Aggrenox Antitrust Litigation involving Boehringer and plaintiffs Humana and Louisiana Health over 52 documents Boehringer produced to the FTC during a government investigation.
The district court reviewed the documents in camera and ordered production of 29 documents related to the Aggrenox settlement, finding they constituted fact work product rather than opinion work product.
The court held that collateral estoppel applied to the D.C. courts’ prior rulings that these documents were fact work product, and also independently concluded the documents were factual (financial analyses, charts, forecasts) not legal mental impressions.
The court found Humana established the Rule 26(b)(3) showings of "substantial need" and "undue hardship" because the FTC documents carried unique, contemporaneous probative value that Humana could not feasibly replicate.
Boehringer produced the documents after the order and then moved to certify the order for interlocutory appeal under 28 U.S.C. § 1292(b); the district court denied certification.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the FTC documents are fact work product or opinion work product	Documents are factual business analyses created at counsel’s direction and thus are fact work product	Documents reflect counsel’s legal impressions and settlement strategy and should be opinion work product	Court held documents are fact work product (collateral estoppel and independent analysis)
Whether Humana showed "substantial need" for fact work product under Rule 26(b)(3)	Humana: documents have unique, contemporaneous financial information essential and highly probative to liability	Boehringer: "substantial need" standard should be stricter and not met here	Court held Humana met substantial need given unique probative value; production justified
Whether Humana demonstrated "undue hardship" in obtaining equivalent information elsewhere	Humana: alternative means (oral questions, self-calculation) not feasible or equivalent	Boehringer: information could be obtained by other discovery means	Court held Humana showed undue hardship—FTC materials not feasibly replicated
Whether the order should be certified under 28 U.S.C. § 1292(b) for interlocutory appeal	Humana: discovery order is not an exceptional, controlling pure question of law and interlocutory review is improper	Boehringer: issue is of special consequence to privilege law and in-house counsel; creates circuit conflict on "substantial need"	Court denied certification—no controlling pure legal question, no substantial ground for difference of opinion, and appeal would not materially advance termination

Key Cases Cited

Mohawk Indus. v. Carpenter, 558 U.S. 100 (2009) (generally denies review of pretrial discovery orders; interlocutory review reserved for exceptional privilege rulings)
United States v. Adlman, 134 F.3d 1194 (2d Cir. 1998) (distinguishes fact versus opinion work product and sets standards for protection)
In re Grand Jury Subpoena Dated July 6, 2005, 510 F.3d 180 (2d Cir. 2007) (defines factual work product and opinion work product)
Schaeffler v. United States, 806 F.3d 34 (2d Cir. 2015) (applies work-product principles to business documents prepared at counsel’s direction)
Republic Gear Co. v. Borg-Warner Corp., 381 F.2d 551 (2d Cir. 1967) (discusses the "substantial need"/necessity standard for overcoming work-product protection)
Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368 (1981) (interlocutory appeals not appropriate where alternative post-judgment remedies exist)
Klinghoffer v. S.N.C. Achille Lauro, 921 F.2d 21 (2d Cir. 1990) (section 1292(b) should be used only in exceptional circumstances)