MEMORANDUM OPINION
This case is before the Court on remand from the Court of Appeals. The Court is tasked with deciding, consistent with the guidance from the D.C. Circuit, whether certain documents created by Boehringer Ingelheim Pharmaceuticals, Inc. and subpoenaed by the Federal Trade Commission are protected by either the work-product doctrine, the attorney-client privilege, or both. The Court has reviewed m camera all the documents at issue. Upon review, the Court concludes that most of the documents are mere fact work product and are therefore not protected from disclosure. However, Boehringer has asserted the attorney-client privilege in addition to work-product protection for almost all these documents. That privilege, and not the work-product doctrine, supplies a proper basis on which to withhold the documents. 1
BACKGROUND
The relevant facts underlying these proceedings were ably described in the Court’s prior opinion and in the decision of the Court of Appeals. See FTC v. Boehringer Ingelheim Pharmaceuticals, Inc.,
A. The Boehringer-Barr Litigation and the FTC Subpoena
. The FTC filed an action to enforce a subpoena duces tecum directed at Boeh-
The patent litigation and settlement underlying the FTC’s investigation can be briefly summarized. Boehringer manufactures the drugs Aggrenox and Mirapex, of which Barr developed generic versions. Boehringer sued Barr for patent infringement in what is termed the “Mirapex litigation.” See Boehringer Ingelheim Int’l GmbH v. Barr Labs.,
After the settlement, the FTC opened a formal investigation to determine whether Boehringer and Barr had engaged in unfair methods of competition through their settlement and other agreements. Id. Of particular concern to the FTC were the following terms of their settlement: (1) Barr would not market its generics for Aggrenox and Mirapex until shortly before Boehringer’s patents expired; and (2) in exchange for fees and royalties, Barr would help promote Aggrenox until Barr’s generic entered the market. Boehringer II,
During the investigation, the FTC served on Boehringer a subpoena for documents. Id. Boehringer did not comply with it. Id The FTC filed this petition seeking enforcement of the subpoena. Id Specifically, the FTC requested that the Court order Boehringer to comply with the subpoena and turn over all relevant documents concerning the following topics: (1) the patent litigation; (2) sales, profits, and marketing of the brand-name drugs; (3) the settlement agreement; (4) co-marketing with Barr and other- firms; (5) Barr’s marketing of the generics; and (6) analyst reports on the drugs. Id. For several months, the Court oversaw the production documents responsive to the subpoena. See id. at 106,
B. Boehringer I
After Boehringer reported to the Court that it had fully complied with the subpoena, the FTC objected, noting that Boehringer had withheld many documents under claims of either work-product protection or the attorney-client privilege. Id The FTC identified several categories of documents which Boehringer withheld under privilege claims, including: (1) the financial analyses of a
Boehringer, at the Court’s direction, provided a sample set of documents for the Court to review in camera. Id. at 106. That sample of 105 documents, which was submitted in camera and ex parte, is representative of the total number of documents over which Boehringer claims privilege. Id. Boehringer also submitted, in camera and ex parte, affidavits from attorney Persky and from attorney Pamela Taylor, who represents Boehringer in the FTC investigation. Id. at 109. The Court examined those documents and issued a memorandum opinion sustaining in part and overruling in part Boehringer’s assertions of privilege. Id. at 108. 2
The Court addressed the relevant documents by category. Id. at 108-12. First, the Court examined the financial analyses of the co-promotion agreement, the forecasting analyses regarding Barr’s generic, and financial analyses used to evaluate the settlement agreement. Id. at 108. Boeh-ringer contended that these sorts of documents, while often prepared in the ordinary course of business (and not under threat of impending litigation), were “specially prepared at the request of [Boeh-ringer’s] counsel in response to litigation.” Id. at 108-09. In Boehringer’s view, then, the documents constituted work product. Id. at 109. Moreover, Boehringer claimed that the analyses at issue were “premised on frameworks provided by Persky and were prepared for her use” and were therefore subject to the attorney-client privilege. Id.
The FTC rejoined that the co-promotion agreement regarding Aggrenox was distinct from the settlement in the Boehringer-Barr litigation and was therefore not work product. Id. Boehringer replied that the co-promotion agreement, while “freestanding,” was negotiated during settlement and that haggling over the terms of the co-promotion agreement informed the development of the settlement agreement. Id. Because the co-promotion agreement arose during settlement negotiations, it was, in Boehringer’s opinion, part of the settlement. Id.
The Court concluded that the co-promotion agreement was “an integral part of the litigation” and that “disclosure of the attorneys’ and their agents’ mental processes qualify for [work-product] protection since the process of deciding whether to settle a case is necessarily created because of the prospect of litigation.” Id. The Court relied heavily on the ex parte
The Court rejected the FTC’s contention that the analyses were separate and apart from the settlement negotiations, finding that the specific reports at issue “were prepared using information and frameworks provided by [Boehringer] attorneys and constitute work product intended to aid these attorneys in the settlement process.” Id. Moreover, because Boehringer represented to the Court that any freestanding, non-litigation-based financial analyses were previously disclosed to the FTC, “the only additional information the documents at issue would yield is the mental thought processes of [Boeh-ringer’s] attorneys as they prepared for settlement negotiations.” Id. Accordingly, the Court concluded that these documents were work product because they were “prepared for counsel and were not business forecasts made in the ordinary course of business.” Id.
Having found that the analyses qualified as work product, the Court next addressed the FTC’s claim that they should nevertheless be disclosed because the FTC had an “overriding and compelling need for them to complete the administrative investigation.” Id. The FTC argued that it had no other way to obtain the information in the documents and claimed that Boehringer should not be able to use them “both as a sword (to claim .their business deal was a fair transaction) and a shield (using claims of privilege to prevent anyone from looking into the validity of such a claim),” Id. at 109-10.
The Court rejected this argument for two reasons. Id at 110. First, the Court found that the work product at issue was opinion work product, which, unlike factual work product, cannot be discovered merely on a showing -of substantial need. Id.; see also Upjohn Co. v. United States,
Second, the Court disagreed that the FTC had an overriding need for the documents. Id. The Court, after reviewing all the documents in the sample, reasoned that “there are no smoking guns contained in these documents; rather, they are the sort of financial analyses one would expect a company exercising due diligence to prepare when contemplating settlement options.” Id. To the Court, the documents “yield[ed] nothing more than the arithmetical calculation of various potential scenar
No one is pretending that the FTC is not fully aware of the deal that was made or of the economic benefits the deal makers were trying to achieve. The arithmetic of various potential scenarios adds nothing to what is already known about what the involved companies intended in settling their suit. Although I am sympathetic to the FTC’s argument that these financial analyses are the only documents that could demonstrate whether or not [Boehringer] was using the co-promotion agreement to pay Barr not to compete, I am afraid that they cast no light of whether that intendment existed.
Id. Because the FTC could not demonstrate the especially compelling need required to discover opinion work product, the Court upheld Boehringer’s claim of work-product protection. |d. In closing the analysis, the Court noted that emails transmitting the analytical reports could be disclosed if fact work product in them could be excised from the opinion work product. Id.
After considering Boehringer’s financial analyses, the Court next examined a category of documents comprising emails, notes, and correspondence regarding strategic decisions, settlement possibilities, and settlement options, including correspondence between Boehringer executives. Id. For the same reasons marshalled to uphold Boehringer’s work-product claim with respect to financial analyses, the Court found that this category of correspondence should be protected as opinion work product. Id. Additionally, the Court rejected the FTC’s contention that the attorney-client privilege should not cover some of the correspondence, which was “circulated, principally between executives, rather than between attorneys and executives.” Id. at 111. The FTC claimed that the privilege cannot exist between non-attorneys. Id. The Court disagreed, finding that “[t]he documents themselves indicate ... that they were intended to be confidential communication between the client, [Boehringer], and its attorneys.” Id. Thus, the Court found that this category of correspondence was protected not only as work product but also by the attorney-client privilege. Id.
The final category of documents the Court addressed consisted of emails reflecting requests for legal advice or conveying requests from attorneys for information to be used in settlement negotiations. Id. For these documents, the Court found that, while the work-product doctrine did not apply, the communications were protected by the attorney-client privilege. Id. Again, the FTC objected that a communication between two non-lawyers cannot qualify as an attorney-client privileged communication. Id. Once again, the Court disagreed, concluding that “communications among employees of a client are still afforded the protection of the privilege, so long as the communications concern legal advice sought or received that was intended to be confidential.” Id. (citing Long v. Anderson Univ.,
The FTC appealed. Boehringer II,
The D.C. Circuit affirmed the Court’s finding that the co-promotion agreement was prepared “in anticipation of litigation” because it was incorporated into the settlement agreement, notwithstanding the fact that it had independent business significance apart from the settlement. Boehringer II,
In reaching this conclusion, the Court of Appeals canvassed the history of the work-product doctrine from its genesis in Hickman v. Taylor,
The D.C. Circuit found that the co-promotion agreement, although it had “independent economic value apart from the litigation settlement,” was still properly considered work product. Id. at 150. The Circuit court rejected the notion that every business transaction that can be severed from a settlement cannot be protected as work product. Id. In the court’s view, “[cjommon sense and practical experience teach that settlement deals routinely include arrangements that could be isolated from the overall agreement and stand on
The D.C. Circuit remanded, however, as to several documents prepared after the settlement agreement was executed. H. at 151. This Court lumped these documents in with the pre-settlement analyses, reasoning that all were created in anticipation of the Boehringer-Barr litigation and settlement. Id. The D.C. Circuit observed this discrepancy but nevertheless instructed that these documents may constitute work product or be protected as attorney-client communications because they “contain information initially prepared in anticipation of the settlement, relat[e] to other pending litigation, or involve[e] requests for or the provision of legal advice.” Id. The Court of Appeals remanded for this Court to consider those grounds in the first instance since they were not the reasons this Court articulated in its opinion. Id.
The D.C. Circuit next analyzed this Court’s conclusion that many of the analy-ses were opinion work product, not fact work product. Id. In laying out the principles to be applied, the Court of Appeals noted that “[w]hen a factual document selected or requested by counsel exposes the attorney’s thought processes and theories, it may be appropriate to treat the document as opinion work product, even though the document on its face contains only facts.” Id. (citing Dir., Office of Thrift Supervision,
The Court of Appeals found that the analyses at issue here were pervaded by factual information that did not give insight into Boehringer’s counsel’s legal impressions or views of the case. Id, The court contrasted the instant situation with In re Sealed Case,
Unlike In re Sealed Case, the D.C. Circuit found that the Court’s opinion below incorrectly “implied that an attorney’s mere request for a document was sufficient to warrant opinion work product protection.” Boehringer II,
Furthermore, the Court of Appeals found that attorney Persky conceded in testimony before the FTC that her requests for financial information were directed at answering “whether the agreements made financial sense [as] a matter of business judgment,” not as a foundation for providing legal counsel. Id. In other words, merely because an attorney, Ms. Persky, led the settlement negotiations did not mean that her “thoughts relating to financial and business decisions are opinion work product when she [was] simply parroting the thoughts of the business managers.” Id. at 153.
Finally, the Court of Appeals disagreed with this Court’s emphasis that the analy-ses were prepared using “information and frameworks” providing by counsel. Id. The D.C. Circuit found that the “information and frameworks” relied on by this Court “had no legal significance.” Id. Instead, most were innocuous indications of the time frames for requested financial data. Id. In the D.C. Circuit’s view, Boehringer had not articulated a viable explanation for why disclosure of a time frame for data would reveal their attorneys’ mental impressions. Id. The Court of Appeals held that “[w]here it appears that the focus or framework provided by counsel is obvious or non-legal in nature, it is incumbent upon the party claiming opinion work product protection to explain specifically how disclosure would reveal the attorney’s legal impressions and thought processes.” Id. “Where an attorney’s mental impressions are those that ‘a layman would have as well as a lawyer in these particular circumstances, and in no way reveal anything worthy of the description ‘legal theory,” those impressions are not opinion work product.” Id. (quoting In re Health-South Corp. Sec. Litijg.,
The D.C. Circuit then proceeded to explain why the distinction between fact and opinion work product in this case was critical. Id Whereas opinion work product can only be discovered on an “ ‘extraordinary showing of necessity,’” fact work product requires the party seeking discovery to propound “‘adequate reasons’” why those facts should be disclosed. Id. (quoting In re Sealed Case,
The Court of Appeals found that this Court did not properly fulfill its duty to determine whether some of the work product in the analyses was merely factual and, in turn, whether those facts could be segregated from any opinion work product. Id. at 154. In so doing, it rejected Boeh-ringer’s contention that the FTC must demonstrate that the facts sought were “critical to, or dispositive of, a key issue at trial.” Id. According to the D.C. Circuit, “although some courts have demanded a heightened showing of a document’s relevance or probative value for discovery of fact work product, we have never characterized Rule 26(b)(3)’s ‘substantial need’
The D.C. Circuit also explained that a heightened relevance standard was especially inappropriate in the instant enforcement proceeding. Id. at 157. The court reasoned that “in the investigatory context here[,]” the FTC was entitled to learn facts on a broader scale than available to a typical civil litigant. Id. Specifically, in assessing relevance, a court in an administrative subpoena enforcement proceeding “ ‘is not free to speculate about the possible charges that might be included in a future complaint, and then to determine the relevance of the subpoena requests by reference to those hypothetical charges.’ ” Id. (quoting FTC v. Texaco, Inc.,
Having disposed of Boehringer’s argument for a heightened relevance standard, the Circuit court articulated a lower threshold, concluding that that “a moving party’s burden is generally met if it demonstrates that the materials are relevant to the case, the materials have a unique value apart from those already in the movant’s possession, and ‘special circumstances’ excuse the movant’s failure to obtain the requested materials itself.” Id. at 155. Because the Court below found that the anal-yses “are relevant to the FTC’s investigation and would provide unique information that the FTC cannot reasonably obtain elsewhere,” the FTC had satisfied the requirements for discovering any fact work product contained in the financial and forecasting analyses. Id. Accordingly, the Court of Appeals remanded the matter to this Court for further consideration of how much of the documents constituted fact work product that should be produced to the FTC. See id. at 158. The D.C. Circuit also observed that “[t]o the extent that any such documents were withheld in whole or in part on the alternative basis of attorney-client privilege, the District Court will have to determine whether this privilege independently bars discovery.” Id.
D. Remand
Following remand, the Court convened a status hearing so that the parties and the Court could discuss the issues remaining to be decided. See generally Transcript of Sept. 17, 2015 Status Hearing [Dkt. 87]. Consistent with the Court’s instructions at the hearing, the parties thereafter submitted a joint status report which relayed the parties’ positions on several topics, the most important of which were: (1) which documents needed to be reanalyzed on remand; (2) whether additional briefing would be required on the issues to be decided on remand and, if so, the nature of the briefing; and (3) whether the Court should take additional evidence to aid its assessment of Boehringer’s privilege claims, including whether it should permit the submission of new in camera, ex parte affidavits. J. Rep. at 1-23. As before, the parties agreed that the Court’s rulings on documents within the representative sample previously examined would be applied
On the basis of the joint status report, the Court issued an order identifying the documents it planned to review during these remand proceedings. Dec. 2, 2015 Order at 1-2. Those documents include: (1) documents that were prepared after the Boehringer-Barr settlement agreements were executed; and (2) non-duplicative documents identified in Categories A, B, and E of the appendix to the district court’s prior order, see Boehringer I,
The Court also set a briefing schedule. Id. at 2-3. While the Court did not forbid Boehringer from submitting additional or revised ex parte affidavits, its Order warned that Boehringer would face a heavy burden in convincing the Court that such submissions should be allowed and considered. See id. at 2. The Court ordered Boehringer to file on the public docket redacted copies of any affidavits submitted ex parte. Id.
The parties filed supplemental briefing pursuant to the Court’s schedule. As expected, as part of its supplemental brief, Boehringer asked leave of the Court to file a supplemental ex parte affidavit from attorney Persky, see Decl. Mot. at 1, which the FTC opposed, see Decl. Mot. Opp. at 1. Additionally, after the FTC filed its supplemental brief, which was supposed to be the final brief submitted under the Court’s schedule, Boehringer sought leave to file “a short reply brief,” which the Court will deny. 4
LEGAL STANDARDS
Boehringer bears the burden, as the party resisting the FTC’s subpoena on the basis of privilege, to show that the privileges invoked apply here. United States v. Legal Servs. for N.Y.C.,
A. Attorney-Client Privilege
The attorney-client privilege protects confidential communications between clients and their attorneys made for the purpose of securing legal advice or services. Tax Analysts v. IRS,
Normally, only attorney-client communications themselves, not the underlying facts, are privileged. Upjohn Co. v. United States,
The matter is a little more complicated when, as here, a claim of privilege is made by a corporation based on communications it had with its in-house counsel. The mere fact that a lawyer may be in-house counsel for a corporation “alone does not dilute the privilege.” Id As the Supreme Court has observed, “[i]n light of the vast and complicated array of regulatory legislation confronting the modern corporation, corporations, unlike most individuals, ‘constantly go to lawyers to find out how to obey the law[.]’ ” Upjohn,
Yet in-house counsel may have “certain responsibilities outside the lawyer’s sphere,” and, as a result, the corpora
This Court and the D.C. Circuit have consistently emphasized that “the ‘attorney-client privilege must be strictly confined within the narrowest possible limits consistent with the logic of its principle.’ ” In re Lindsey,
B. Work-Product Doctrine
The Court of Appeals gave a thorough overview of the work-product doctrine in Boehringer II. The Court pauses here to highlight only a few other basic principles underlying the doctrine. The work product doctrine is codified in Federal Rule of Civil Procedure 26(b)(3), which provides, in relevant part:
(A) Documents and Tangible Things. Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party’s attorney, consultant, surety, indemnitor, insurer, or agent). But, subject to Rule 26(b)(4), those materials may be discovered if:
(i) they are otherwise discoverable under Rule 26(b)(1); and
(ii) the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.
(B) Protection Against Disclosure. If the court orders discovery of those materials, it must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party’s attorney or other representative concerning the litigation.
Fed. R. Civ. P. 26(b)(3)(A)-(B). The Supreme Court initially developed the work product doctrine in Hickman v. Taylor,
[I]t is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel. Proper preparation of a client’s case demands that heassemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference.
Under Hickman, a party seeking such materials must establish “adequate reasons to justify production through subpoena or court' order,” and even then, discovery is limited to “relevant and non-privileged facts.” Id. at 511-12,
Under Rule 26, the Court must engage in a multi-step inquiry. First, the party asserting work-product protection must demonstrate that the document in question was prepared “in anticipation of litigation.” Fed. R. Civ. P. 26(b)(3). To answer this question, the D.C. Circuit has directed the Court to use the “because of’ test, explained above. Boehringer II,
(1) Scope in General. Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain ■ discovery' regarding, any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.
⅛ (b)(1).
Next,- the Court must examine whether the materials sought constitute fact or opinion work product. See id. (b)(3); Boehringer II,
The
work-product doctrine often walks side-by-side with the attorney-client privilege, so it is important to note how they differ. Work product protection is usually broader than the attorney-client privilege because it is not restricted solely to confidential attorney-client communications. In re Sealed Case,
DISCUSSION
Before the Court reaches the merits of Boehringer’s privilege claims, it must re
Third, the Court concludes that nearly all the documents at issue here constitute fact work product, not opinion work product. This is because the documents themselves convey no legal impressions or opinions; instead, they contain facts which Persky and her team later used to form legal opinions. Finally, the Court finds all documents for which the attorney-client privilege is claimed should be privileged from disclosure. As noted above, the work-product doctrine and the attorney-client privilege can' protect the same document but for different reasons. The discussion below demonstrates that, in this case at least, documents containing factual work product, when compiled at the request of an attorney for the purpose of rendering legal advice, fall under the protections of the attorney-client privilege and therefore are not subject to disclosure.
A. The Scope of Remand
The first question the Court must consider is what documents it needs to review. The parties disagree as to scope of the remand. And the Court left this question somewhat open in its scheduling order, finding that
the documents to be reviewed upon remand in this matter will be those documents . that were prepared after the Boehringer/Barr settlement agreements were executed (he., 1947, 2331, 2333, and 2387), and those non-duplicative documents identified in Categories A, B, and E of Judge Facciola’s Memorandum Opinion and Order [Dkt. 69] to the extent such documents come within the scope of petitioner’s appeal as defined in petitioner’s opening brief on- appeal. See Brief of Appellant Federal Trade Commission,2013 WL 3271346 ,, at *12-16 (June 28, 2013). Specifically, with regard to the latter, the Court will review non-duplicative documents within Categories A, B, and E that contain (1) financial analyses of the co-promotion agreement, (2) financial forecasts of alternative timelines for generic entry into the market, or (3) financial analyses of settlement options or terms. Such documents will include, at a minimum, those documents identified by respondent in its portion of the Joint Status Report [Dkt. 88] related to the scope of review upon remand (he., 810, 811, 832, 833, 901, 973, 992, 1057, 1058, 1290, 1291, 1344, 1396, 1397, 2578, 2580, 2983, 2984, and 3058).
Dec. 2, 2015 Order at 1-2. Having reviewed the parties’ briefs and the entire sample of documents transmitted on appeal to the D.C. Circuit, the Court is now prepared to define precisely the documents within the scope. of the appellate court’s remand. Those documents are as follows: 617, 791, 810, 811, 815, 819, 832, 833, 858, 861, 901, 902, 908, 973, 992, 1008, 1040, 1057, 1058, 1290, 1291, 1333, 1341, 1344, 1365, 1381, 1396, 1397, 1947, 2331, 2333, 2364, 2387, 2550, 2578, 2580, 2918, 2980, 2983, 2984, 3058, and 3328. 5
Finally, there are additional documents which the Court did not identify in its December 2 Order and neither party addressed in their supplemental briefing. In reviewing the record in this case, the Court reviewed each and every document transmitted on appeal to the D.C. Circuit. Although this Court in its prior opinion defined several categories for the documents at issue here, see Boehringer I,
B. Motion for Leave to File Supplemental Ex Parte Affidavit of Marla Persky
An important part of this proceeding concerns the propriety of the Court considering in camera, ex, parte affidavits submitted by Boehringer to support its privilege claims. As the Court has already found, the FTC has waived its complaints about the use of ex parte affidavits prior to the appeal. See Dec. 2, 2015 Order at 3. In its supplemental briefing, following remand, Boehringer again asks the Court to review such an affidavit from Persky. Decl. Mot. at 1. With its motion, Boehringer submitted Persky’s supplemental declaration to the Court in camera and ex parte. See id. As instructed by the Court, Boeh-ringer -also filed a redacted version of her affidavit on the public docket. See id.
In its scheduling order, the Court left open to Boehringer the option to request leave to file ex parte affidavits in connection with its supplemental briefing. Dec. 2, 2015 Order at 2. Nevertheless, the Court gave clear warning that, under the law in this Circuit, “the use of ex parte affidavits is disfavored[.]” Id. (citing Armstrong v. Exec, Office of the President,
Boehringer contends that Persky’s declaration is important because it will explain why the documents at issue reflect her
[ejither [Boehringer] would be required to submit no testimony regarding why the documents at issue reveal Ms. Per-sky’s mental impressions—which would subject it to criticism that it did not adequately support its claim that the documents are protectable opinion work product and increase the risk that it would be ordered to produce the documents to the FTC—or it would be forced to reveal to the FTC the very mental impressions it is attempting to shield through this litigation.
Id. In. Boehringer’s view, the Court “has an affirmative obligation to avoid that exceedingly unfair result.” Id Furthermore, Boehringer argues, the fact that it has filed a redacted version of the affidavit on the public docket gives the FTC a sufficient basis on which to analyze and contest the assertions in the affidavit. Id. at 3. Thus, Boehringer believes it has allayed the Court’s concern with harming the open adversary process through the use of ex parte affidavits. Id.
The FTC rejoins that the use of ex parte affidavits is disfavored. Decl. Mot. Opp. at 1. In this case in particular, the FTC argues that ex parte declarations are unnecessary because a sufficient evidentiary record exists on which the Court can review the privilege claims. Id. According to the FTC, ex parte affidavits should only' be used when ‘“absolutely necessary”’ and when “ ‘other crucial interests’ ” outweigh the general interest in the adversary process. Id. at 2 (quoting Lykins v. Dep’t of Justice,
Additionally, the FTC claims that there are no other “crucial interests” at issue here which support the use of ex parte submissions. Id. at 3. In this Circuit, the FTC contends, such interests are normally limited to matters of national security and grand jury investigations. Id. In a “routine privilege dispute” like this one, ex parte affidavits are inappropriate. Id. In the FTC’s view, Boehringer’s commercial and litigation interests fall well short of the sort of “crucial interests” needed to outweigh the interest in full disclosure inherent in our adversary system.. Id. Finally, the FTC contends that there are no new facts or legal standards for the Court to apply on remand. Id Because of this, the FTC argues, there is no need for “new evidence” like Persky’s supplemental affidavit. Id. at 3-4. In closing, the FTC requests that the Court order Boehringer to produce an unredacted copy of Persky’s affidavit or, in the alternative, an affidavit with as few redactions as are absolutely necessary, as approved by the Court. Id. at 4.
In reply, Boehringer argues that Per-sky’s supplemental affidavit is necessary to clarify the circumstances surrounding the
Having considered the parties’ arguments, the Court will deny Boehringer’s motion for leave to file Persky’s ex parte affidavit because it has not met its high burden to show that the affidavit is necessary or appropriate in these circumstances. It is true that the complexities of the pharmaceutical industry and patent litigation are daunting. It is also true that Persky’s affidavit gives some context to those complexities. Nevertheless, the business interests implicated in the instant dispute fall well short of the types of interests that appropriately deserve ex parte treatment—La, national security and grand jury matters. See In re Miller,
Boehringer’s cited cases involving the submission of ex parte affidavits are inapt. In several of them, the court permitted in camera submission of an affidavit without comment or analysis. See FPL Grp., Inc, v. IRG,
Furthermore,. Boehringer misses the mark when it claims that the complexity of the issues underlying this case supports Persky’s ex parte submission. The Court,
Accordingly, the Court will deny Boeh-ringer’s motion for leave to file in camera and ex parte the. supplemental affidavit of attorney Persky. ■
C. Work-Product Protection
All the documents on remand from the D.C. Circuit, listed in Part A, bear claims of work-product protection. As set forth above, examining claims of work-product protection- normally involves a multi-step analysis. But here,' only one question remains for the Court to decide— whether the documents at issue constitute fact or opinion work product. Boehringer II,
1. Post-Settlement Documents
Boehringer first defends the documents it created after the Barr settlement. Resp. Suppl. Br. at 5. These documents are 1947, 2331, 2333, and 2387. Id. Boehringer argues that these documents constitute opinion work product because they analyze a potential settlement in another case between Boehringer and another a pharmaceutical company, Mylan. Id. Those analy-ses, according to Boehringer, are opinion work product for two reasons. Id at :6. First, they reveal its attorneys’ mental impressions with respect to the Mylan litigation. Id. at 6-8. Second, they incorporate the opinion work product developed for use in the Boehringer-Barr settlement negotiations. Id.. Boehringer contends that Persky’s assessment of the Mylan settlement options required her to consider whether any of those options would impact Boehringer’s obligations under the Barr settlement agreement. Id. These post-settlement analyses also considered various ways to minimize “litigation uncertainties” that might result from potential outcomes in the Mylan litigation and how those uncertainties might affect the Barr settlement. fib In Boehringer’s view, “analysis of the Mylan litigation is inextricably intertwined with .Ms. Persky’s impressions re
The FTC does not devote argument to the'post-settlement documents specifically. Instead, it argues generally that any financial analysis prepared in connection with the Boehringer-Barr settlement or, apparently, the Boehringer-Mylan settlement, constitutes discoverable fact work product. The Court likewise sees no need to analyze these documents separately. The analysis below applies with equal force to the post-settlement documents.
2. Financial Analyses of the Co-Promotion Agreement and the Boehringer-Barr Settlement
All the documents at issue on remand, save the four post-settlement documents listed above and five email chains identified below, are. financial analyses of the Aggrenox co-promotion agreement, possible litigation outcomes, and the terms of Boehringer-Barr settlement generally. See id. at 11-16. For these documents, Boeh-ringer argues that disclosing them would reveal Persky’s mental impressions. Id. at 8. Boehringer, fighting an uphill battle against the Court of Appeals’ opinion, now stresses that Persky requested these anal-yses, and the specific variables analyzed therein, in her capacity as Boehringer’s lawyer, not as a businessperson. Id. Boeh-ringer’s arguments focus on several key themes. First, the analyses reflect Per-sky’s mental impressions because she “identified particular economic parameters that were particularly important to her settlement strategy for the litigation matters and asked the businesspeople at Boehringer to gather information regarding those economic parameters.” Id. at -9. Second, the analyses represent opinion work product because she-used them to provide advice to her client regarding which litigation outcomes or settlement options would be economically feasible and commercially reasonable. Id Third, she used the analyses to provide legal advice to Boehringer regarding potential antitrust scrutiny from the FTC over the co-promotion agreement or the settlement. Id.
Boehringer contends that although its business executives made the final settlement decisions, they did not make those decisions until Persky presented them with her legal advice based on the financial analyses she requested. Id at 9. In this way, Persky’s mental impressions, 'embodied in the analyses she requested based on the economic variables she set, were not the mental impressions of a mere layperson. Id. at 11. In Boehringer’s view, the Court of Appeals was wrong to say that Persky “parroted” the views of business managers. Id. at 10. Indeed, to Boehringer, the Court of Appeals had it backwards: it was Persky, not any business executive, who initially determined which factors were important to her in rendering legal advice to her client about economic desirability and antitrust exposure of settlement. Id. That the business managers later used her analyses and advice to choose settlement options does not mean that she was simply them mouthpiece. Id. In other words, the analyses she requested represent more than a “ ‘general interest in the financials of the deal’ rather, they were integral to Persky’s development of litigation strategy. Id. (quoting Boehringer II,
The FTC disagrees, relying heavily on favorable language from the D.C. Circuit’s opinion, which suggests that Boehringer’s privilege claims are overblown. Pet. Suppl. Br. at 1. First, the FTC contends that a document cannot be considered opinion work product unless it actually reveals an attorney’s mental impressions. Id. at 3. In
The Court holds that the vast majority of the .documents at issue on remand constitute fact work product. Many of the log entries are PowerPoint presentations, charts, graphs, and tables analyzing possible factual scenarios affecting the Boéhringer-Barr settlement and the co-promotion agreement. These charts, even assuming they were created at Per-sky’s behest and analyze variables she identified, do not sufficiently reflect her mental impressions regarding which scenarios were legally feasible or desirable. Instead, they reflect a broad-ranging factual analysis of many possible litigation and settlement outcomes. Persky avers that she took these analyses and then presented the ones she thought best to her client in order to frame their settlement strategy. See, e.g„- Decl. Mot., Ex. B at 5 ¶ 11 (“I used this and other financial analyses of proposed settlement terms that were prepared at my request as settlement discussions progressed to assist me in providing legal advice to my clients.”). But the charts themselves do not reflect this analysis. Instead,- as explained below, if legal analysis is to be found anywhere in these documents, it is in the emails transmitting the charts, graphs, and spreadsheets.
Moreover, Persky’s mere selection of variables for Boehringer staff to analyze does not rise to the level of reflecting her mental impressions regarding the case; instead, those variables are ones which any reasonable businessperson in her position would analyze in this situation; For fact work product to rise to the level of opinion work product, the attorney must have meaningful involvement in the selection Of the data that goes into the work product. Boehringer II,
The parties dispute whether it was Per-sky or “business people” at Boehringer who provided the parameters, assumptions, and variables to analyze. See Pet. Suppl. Br. at 9. The Court need not wade into that dispute here however, since the analyses would not qualify as opinion work product even if Persky herself chose all relevant variables. Put, simply, the instructions to compile data on a wide number of
Although the Court declines to admit Persky’s supplemental, ex parte affidavit as evidence to support Boehringer’s claims of work-product protection, the Court has reviewed it, and the context Persky provides therein actually undermines rather than strengthens Boehringer’s arguments. In her affidavit, Persky explains why she chose certain financial variables over others that Boehringer employees should analyze. In this way, Persky gives away that her involvement in the creation of these documents was merely directory. She did not cull the data she received, at least not in the documents now before the Court. See Willingham,
For example, with respect to log entry 973, a PowerPoint presentation containing charts analyzing various litigation and settlement scenarios on Mirapex sales, Per-sky avers that she used the data in the chart “to assist [her] in providing legal advice” concerning those potential outcomes, See Deer Mot., Ex. B at 9 ¶ 18. But the actual advice she gave is nowhere to be found in that document. That she used fact work product to assist her in giving advice to her client is unsurprising. That data is not transformed into opinion work product merely because áhe later used it. See Willingham,
Additionally, Boehringer’s cited cases miss the mark. Boehringer relies on United States v. Adlman,
Boehringer’s other cited cases further underscore why its work-product claims in this case should fail. For instance, in In re Imperial Corp. of America,
Similarly, Concord Boat Corp. v. Brunswick Corp., No. LR-C-95-781,
Five documents before the Court on remand—810, 832, 1057, 2578, and 2983—are not spreadsheets or charts but are instead email chains. Documents 810 and 832 are merely transmittal emails, which the Court would not otherwise have considered to be within the scope of the remand absent the parties’ suggestion that they were in their Joint Report. See J. Rep. at 1-12. Those documents reveal no attorney’s mental impressions—or anyone else’s, for that matter—and so they are merely fact work product.
Documents 1057, 2578, and 2983 are email chains including Boehringer executives and in-house counsel. The Court finds that these emails reflect the analysis of both Boehringer staff and attorneys regarding the financial analyses attached to the emails. Revealing these three email strings, unlike revealing the documents attached to them, would expose the mental impressions of Boehringer’s counsel regarding the case. Discovering such information is nearly impossible, Boehringer II,
Accordingly, the Court holds that all but three of the documents within the scope of the remand qualify only as fact work product. To be clear, the Court concludes that each document listed in Part A above is fact work product except documents 1057, 2578, and 2983. Many of these documents containing factual work product, however, also bear an assertion of the attorney-client privilege. Those documents are not subject to disclosure for the reasons stated in Part D below. The documents that are fact work product and do not also bear a claim of attorney-client privilege are as follows: 810, 832, 861, 901, 992, 1344, 1396, 1397,1947, and 2333. Because the Court of Appeals has already concluded that the FTC has shown sufficient need for these documents if they are fact work product, and because there is no alternative assertion of the attorney-client privilege as to these documents, the Court will direct Boehringer to produce these documents.
D. Attorney-Client Privilege
The Court must next consider Boehringer’s alternative assertion of the attorney-client privilege with respect to several of the documents at issue on remand. The parties were ordered not to re-brief the attorney-client issue in their post-remand supplemental briefing, Dec. 2, 2015 Order at 2-3, so the Court will refer instead to the parties’ arguments as they appear in their pre-appeal briefs and mem-oranda.
6
The documents for which Boeh-ringer has claimed the attorney-client priv
The FTC raises two primary arguments in opposition to Boehringer’s attorney-client privilege claims. First, it contends that many of the documents constitute no more than nonlegal, business-oriented communications regarding the Boehringer-Barr settlement. June 2010 Status Memo, at 21. Indeed, as the FTC asserts, the basis of Boehringer’s privilege claims appears to be merely that an attorney was copied on the communication. Id Second, the' FTC complains that Boehringer’s “cryptic” and “conclusory” log entries fail to provide the detailed explanation necessary to show that the privilege applies. Id. at 21-22.
Boehringer responds that it is the FTC’s' challenge to its privilege claims, and not the claims themselves, which are concluso-ry. June 2010 Status Memo. Resp. at 29. Boehringer defends its privilege log as sufficient to describe and explain the basis for its privilege assertions. Id. at 30. Furthermore, Boehringer points to the more thorough account of the basis of its privilege claims it gave in a letter to the FTC prior to the FTC’s June 2010 status report. See id., Ex. 3 at 8-10. Boehringer concedes that “simply routing a document through an attorney does not make it privileged” but argues that such is not the case here. Id. Instead, Boehringer claims that its privilege assertions are appropriate because the communications at issue represent (1) its counsel requesting information for the purpose of rendering legal advice or (2) its employees providing.information to counsel for the purpose of providing legal advice for the company. Id. at 30-31. Moreover, Boehringer argues that it is immaterial whether an attorney was the direct recipient of an email rather than simply copied on it. Id. at 31. The crucial fact, in Boehringer’s view, is that the context of the communications and their content, apart from their senders and recipients, reveal that they are fairly aimed at giving or requesting legal advice. IcL at 31-32. 8
Boehringer filed a supplemental response to the FTC’s status memorandum. See June 2010 Status Memo. Suppl. Resp. In it, Boehringer again asserts that the fact that lawyers were only copied on emails, or that no lawyers were included at all, is not dispositive of their privilege claims. Id. at 8-9. Rather, those communications should still be protected because they were prepared at the direction of counsel and contain information requested by counsel for the purpose of rendering legal advice. Id. at 9-10.
For the most part, for the reasons stated below, the Court will uphold Boeh-ringer’s assertion of the attorney-client privilege. Only a few documents reflect express requests for or provision of legal advice. Rather, as might be surmised from the discussion above, most of the documents are mere compilations of facts. Yet factual material compiled during a corporation’s internal investigations is analyzed differently under the work-product doctrine and the attorney-client privilege. For the attorney-client privilege, unlike the work-product doctrine, facts collected at counsel’s request for later use in providing legal advice are protected. Moreover, the Court of Appeals has endorsed a liberal standard for finding that a communication falls within the attorney-client privilege, finding that a communication should be protected if “obtaining or providing legal advice was one of the significant purposes of the attorney-client communication.” ⅛ re Kellogg,
In the Court’s view, it is helpful to break down the documents under consideration into two categories by type. First are emails, whether between Boehringer employees and counsel or between employees alone. Second, the Court will examine attachments to. those emails—ie., spreadsheets, charts, graphs, and PowerPoint presentations. Both categories will be, discussed separately in turn.
1. Emails
The smaller and easier category to deal with are the emails. Out of the documents for which attorney-client privilege was claimed, only three are emails—1057, 2578, and 2983. The Court’s rulings as to those documents are below.
2578. This is an email from Persky herself to Boehringer directors. To the email are attached several documents, which Persky describes in the email as analyses of the state of the Mirapex and Aggrenox litigation and of various settlement options. Persky also provides her advice to the directors, based on the analy-ses in the attachments, regarding what results would likely obtain in litigation if settlement was unsuccessful. Persky’s advice to her client based on data compiled by Boehringer employees easily falls within the attorney-client wheelhouse. This document is protected by the privilege.
2983. This document is another email chain, this time involving Persky and Boehringer executives. Persky opens the conversation by relaying a settlement offer from Barr and her reactions to it. Boeh-ringer executives then relay their assessments of the settlement proposal. .This document, like 2578, is the kind of docu-
ment the attorney-client privilege was meant to . protect—a communication between attorney and client regarding litigation strategy based on information, kept confidential between them. This document is therefore privileged.
2. Email Attachments—PowerPoints, Graphs, Charts, and Spreadsheets
The rest of the documents bearing an attorney-client privilege claim are attachments to emails. Those log entries, for purposes of clarity, are: 617, 791, 811, 815, 819, 833, 858, 902, 908, 973, 1008, 1040, 1058, 1290, 1291, 1333, 1341, 1365, 1381, 2331, 2364, 2387, 2550, 2580, 2918, 2980, 2984, 3058, and 3328. As noted above, these attachments are PowerPoint presentations, charts, graphs, and tables that summarize certain facts regarding the state of the patent litigation and describe how different settlement and litigation outcomes would affect Boehringer financially.
As an initial matter, the Court notes that attachments to privileged communications are not thereby automatically privileged. O’Connor v. Boeing N.A., Inc.,
The Court finds that these documents, although they are mere factual work product, are nevertheless subject to the attorney-client privilege. A straightforward reading of In re. Kellogg, the Court of Appeals’ most recent exposition on the privilege, compels this result. In that case, a defense contractor conducted an internal investigation into claims that it defrauded the government. In re Kellogg,
The Court of Appeals reversed. Id at 757. The D.C. Circuit concluded that the case was indistinguishable from Upjohn, the seminal case in the application of the privilege to corporations. Id. In both cases, the corporation “initiated an internal investigation to gather facts and ensure compliance with the law after being informed of potential misconduct.” Id. Further, in each case the investigation “was conducted under the auspices of [the] in-house legal department, acting in its legal capacity.” Id.
And it did not change the result that the investigation was conducted by the contractor’s employees rather than its lawyers, since Upjohn contemplates that the in-house counsel may use non-attorney agents to assist in conducting investigations. Id at 758. The D.C. Circuit required merely that the non-attorney employees understand that their investigation was requested by the company’s legal department and that the information found would be kept confidential. Id.
Finally, and most importantly, the Court of Appeals held that the “primary purpose” test for the attorney-client privilege is not a but-for test, in contrast to the work-product context. Id. at 759. Instead, the test for attorney-client communications asks whether “obtaining or providing legal advice was one of the significant purposes of the attorney-client communication.” Id. The D.C. Circuit rested its conclusion on two related principles. Id. First, contemporary corporate life means that many in-house investigations serve both business and legal purposes. Id Second, given that these purposes may overlap, it does not make sense for courts to try and draw a bright line between the two. Id. All that is required is that obtaining or providing legal advice be a primary purpose of the communication, not the primary purpose. Id.
This case is on all fours with In re Kellogg. Non-attorney Boehringer employees prepared the PowerPoints and spreadsheets at issue at Persk/s direction to assist in negotiating the settlement with Barr. See Boehringer II,
Context matters here. While the documents do not reflect express requests for or provision of legal advice, they were created during the Boehringer-Barr settlement talks in the context of their ongoing lawsuit. As such, one of their primary purposes was to enable Boehringer’s counsel to advise it on how to settle the complex, interlocking lawsuits pending at the time. See Banks,
Further, under the standard enunciated in In re Kellogg, it is not enough, as the FTC asserts, that these documents were also created for business purposes. When addressing whether the co-promotion agreement was created “in anticipation of litigation” for work-product purposes, the Court of Appeals held:
[w]e find no merit in the proposition that any settlement term that has some independent economic value to both parties must always be treated as an ordinary (non-litigation) business transaction for purposes of work product protection. Common sense and practical experience teach that settlement deals routinely include arrangements that could be isolated from the overall agreement and stand on their own but were nonetheless crafted for the purpose of settling litigation.
Boehringer II,
The FTC’s focus on the sender and recipient of these documents is also misguided. It is -true that “documents prepared by non-attorneys and addressed to non-attorneys with copies routed to counsel are generally not privileged since they are not communications made primarily for.legal advice,” Neuder,
Because the protective spheres of the work-product doctrine and the attorney-client privilege are different, this result is not inconsistent with the Court’s ruling above that the documents contain only fact work product. The strong protection afforded to opinion work product exists to protect an attorney’s mental impressions about her client’s case. Those mental impressions are not reflected, expressly or otherwise, in the charts, tables, and graphs that make up these documents. The documents contain only factual compilations and analyses, not legal judgments. Nevertheless, the attorney-client privilege protects even purely factual communications between attorney and client when those facts are gathered at the request of in-house counsel for the purpose—or at least with a significant purpose—of providing legal advice to the corporation. The Court finds that was the case here with regard to the PowerPoints and spreadsheets at issue.
The Court recognizes, as did the Court of Appeals in In re Kellogg, that “the attorney-client, privilege ‘only protects disclosure of communications; it does not protect disclosure of the underlying facts by those who communicated with the attorney.’” In re Kellogg,
CONCLUSION
For the reasons stated above, the Court will uphold in part and overrule in part Boehringer’s objections to producing documents pursuant to the FTC’s subpoena. Out of the documents the Court reviewed on remand, Boehringer shall produce the following: 810, 832, 861, 901, 992, 1344, 1396, 1397, 1947, and 2333. Those documents are, of course, only part of a sample presented to the Court from the entire body of documents at issue. Boehringer is directed to apply the Court’s rulings to all documents outside the sample which it continues to withhold. Specifically, Boeh-ringer should produce any previously un-produced documents similar to those identified in Part A above for which work-product protection and not attorney-client privilege was claimed.
An appropriate Order will accompany this Memorandum Opinion.
Notes
, The relevant documents for purposes of this Memorandum Opinion are as follows: (1) Petition of the Federal Trade Commission for an Order Enforcing Subpoena Duces Tecum Issued in Furtherance of a Law Enforcement Investigation ("Pet.") [Dkt, 1]; (2) Status Memorandum of the Federal Trade Commission Advising the Court of New Developments ("June 2010 Status Memo,”) [Dkt. 32]; (3) Boehringer Ingelheim Pharmaceuticals, Inc.'s Response to Federal Trade Commission Status Memorandum ("June 2010 Status Memo. Resp.") [Dkt. 37]; (4) Reply of the Federal Trade Commission in Support of Its Status Memorandum ("June 2010 Status Memo. Reply”) [Dkt. 33]; (5) Boehringer Ingelheim Pharmaceuticals, Inc.'s Supplemental Response to Federal Trade Commission Status Memorandum ("June 2010 Status Memo. Suppl. Resp.”) [Dkt. 38]; (6) Joint Status Report Regarding Remand from the United States Court of Appeals for the District of Columbia ("J. Rep.”) [Dkt, 88]; (7) Order of December 2, 2015 ("Dec. 2, 2015 Order”) [Dkt. 89]; (8) Boehringer Ingelheim Pharmaceuticals, Inc.’s Supplemental Briefing Regarding Remaining Privilege Disputes ("Resp. Suppl. Br,”) [Dkt. 90]; (9) Boehringer Ingel-heim Pharmaceuticals, Inc.’s Motion to File Ex Parte Supplemental Declaration of Marla Persky ("Decl. Mot.”) [Dkt. 91]; (10) Opposition of the Federal Trade Commission to Boehringer Ingelheim Pharmaceuticals, Inc.'s Motion to File Ex Parte Supplemental Declaration of Marla Perky ("Deck Mot. Opp.”) [Dkt. 92]; (11) Reply in Support of Boehringer’s Motion to File Ex Parte Supplemental Declaration of Marla Persky ("Deck Mot. Reply”) [Dkt. 93]; (12) Supplemental Brief of the Federal Trade Commission in Remand Proceedings (“Pet. Suppl. Br.”) [Dkt. 94]; (13) Boehringer Ingelheim Pharmaceuticals, Inc.’s Motion for Leave to File a Short Reply Brief ("Mot. to File Reply”) [Dkt. 95]; and (14) Opposition of the Federal Trade Commission to Boehringer Ingelheim Pharmaceuticals, Inc.'s Motion for Leave to File a Short Reply Brief (“Mot. to File Reply Opp.’’) [Dkt. 96],
. Initially, the Court determined that the common law and Federal Rule of Civil Procedure 26 should govern Boehringer’s claims of attorney-client privilege and work-product protection. Id at 106-07 (“ ‘The nature of a subpoena enforcement proceeding, under common sense and precedents in this circuit and elsewhere, thus rests soundly in federal law, and federal law of privilege governs any restrictions on the subpoena’s scope.’ ”) (quoting Linde Thomson Langworthy Kohn & Van Dyke, P.C. v. Resolution Trust Corp.,
. The Court issued another opinion soon after the one discussed above which addressed the adequacy of Boehringer's search for documents relevant to the FTC's subpoena, but neither party appealed that decision. See generally FTC v. Boehringer Ingelheim Pharmaceuticals; Inc.,
. As this Court has said in relation to motions for leave to file suf-replies in the summary-judgment context:
In general, sur-replies are “disfavored.” Glass v. Lahood, 786 F,Supp.2d 189, 231 (D.D.C.2011), A court should only permit leave to file a sur-reply if the moving party is otherwise unable to address matters raised for the first time in the non-movant’s reply brief, See Ben-Kotel v. Howard Univ„319 F.3d 532 , 536 (D.C.Cir.2003). But the matter covered in the sur-reply “must truly be new.” Pogue v. Diabetes Treatment'Centers,238 F.Supp.2d 270 , 277 (D.D.C.2002). “Simply put, a sur-reply is not a vehicle for 'rehashing arguments that have already been raised and briefed by the parties. Were that not true, briefing would become an endless pursuit.” Crummey v. Social Security Admin.,794 F.Supp.2d 46 , 63 (D.D.C. 2011), affd,2012 WL 556317 (D.C.Cir.Feb. 6, 2012).
Bigwood v. U.S. Dep’t of Def.,
. To be clear, if a document transmitted on appeal to the Court of Appeals does not appear on this list, then it is not within the scope of the remand and Boehringer is under no obligation to produce it.
. The Court discusses the arguments on attorney-client privilege presented in the parties’ briefing surrounding the FTC’s June 2010 status memorandum. The parties engaged in a new round of briefing in response to the FTC’s October 2010 status memorandum. Those briefs largely restate the arguments made in June, so the Court will refer to the October briefing only as the need arises. See October 2010 Status Report of the Federal Trade Commission [Dkt. 41]; Boehringer In-gelheim Pharmaceuticals, Inc.’s Response to the Federal Trade Commission’s October 2010 Status Report [Diet. 44]; Federal Trade Commission’s Reply Status Report [Dkt. 47].
. In reviewing the record, the Court observed that Boehringer’s assertions of the attorney-client privilege appeared to be inconsistent. The documents for which Boehringer claimed attorney-client privilege in its post-remand briefing were not the same as in its pre-remand privilege log. Compare Resp. Suppl. Br. at 3, with June 2010 Status Memo., Ex. B, Exs. 11-16 (containing the original and subsequent revisions of Boehringer’s privilege log). The post-remand briefing asserts the attorney-client privilege for certain documents although the privilege is not asserted for those same documents in the pre-remand privilege log. Those documents are: 811, 815, 833, 973, 1057, 1058, 1290, 1291, 1341, 2331, 2387, 2550, 2580, and 2984.
The Court ordered the parties to address this discrepancy because of its concern that Boehringer may have been attempting to expand its claims of attorney-client privilege following the remand. See July 12, 2016 Order [Dkt. 97], But Boehringer’s response to the Court's Order demonstrates that the Court simply misunderstood the matter. In their original in camera submissions to Magistrate Judge Facciola, the parties identified these fourteen documents as subject to attorney-client privilege claims even though they were not included in Boehringer’s privilege log. See Boehringer Ingelheim Pharmaceuticals, Inc.’s Resp. to July 12, 2016 Order [Dkt. 99] at 2-3. The FTC did not object at that time to .the Court considering those privilege claims, and neither does it do so now. See id. at 3-4 (“[T]he FTC has authorized Boehringer to represent that it does not oppose the Court’s consideration of attorney-client claims as to these documents”).
. In an October 2010 brief, Boehringer continued to defend these documents for similar reasons. See supra note 6. Additionally, in that brief, Boehringer mentioned that several of the documents were marked or stamped as "privileged” or "confidential.” See Boehring
. Documents 973, 1290, 1291, 1341, 2331, 2364, 2387, and 2550 are uncirculated draft versions of financial analyses Boehringer staff developed. Although ‘‘[d]rafts, standing alone, are not 'communications’ and hence normally are not within the attorney-client privilege," they can be protected "if the draft itself con- • tains protected confidential communications from the client or the attorney.” Loftin v. Bande,