788 F.Supp.3d 167
D. Mass.2025Background
- Julie Long, as a qui tam relator, brought suit against Janssen Biotech, Inc. alleging that Janssen illegally offered free services to physicians to promote its infusible drugs, Remicade and Simponi ARIA, constituting unlawful kickbacks in violation of federal law.
- The alleged kickbacks purportedly led to the submission of false claims to the government under the False Claims Act.
- During discovery, Janssen withheld or redacted approximately 300 documents, asserting attorney-client privilege.
- Long challenged the sufficiency of these privilege claims and moved for in camera review.
- The court conducted an in camera review and determined certain documents must be produced, finding privilege had not been established for all.
- The order to produce documents is stayed for 14 days to allow Janssen to seek further appellate relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether third-party communications are privileged | Privilege waived if shared with third parties | Third-party consultants were functionally equivalent to employees; privilege preserved | Privilege not established; insufficient evidence consultants functioned as employees |
| Whether email attachments are privileged | Not privileged unless independently protected | Attachments privileged if sent with privilege-protected emails | Attachments must be privileged by their own content, not by mere attachment |
| Adequacy of defendant's evidence for asserting privilege | Defendant provided insufficient justification | Deposition excerpts show close work with consultants supporting functional-equivalence argument | Evidence insufficient; mere close collaboration not enough for privilege |
| Scope of attorney-client privilege in corporate context | Only applies to confidential legal communications | Applies to communications with employees and their functional equivalents per case law | Privilege applies only where criteria are met; burden on party asserting privilege |
Key Cases Cited
- Upjohn Co. v. United States, 449 U.S. 383 (Scope of attorney-client privilege for corporations)
- In re Keeper of the Records (Grand Jury Subpoena Addressed to XYZ Corp.), 348 F.3d 16 (Burden on party asserting privilege)
- Cavallaro v. United States, 284 F.3d 236 (Disclosure to third parties waives privilege)
- Lluberes v. Uncommon Prods., LLC, 663 F.3d 6 (Only communications made for legal advice are privileged)
- In re Bieter Co., 16 F.3d 929 (Functional-equivalence doctrine in privilege context)