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In re Intuniv Antitrust Litigation

United States District Court, D. Massachusetts

December 10, 2018




         This case involves allegations that Defendants settled patent litigation concerning the ADHD drug Intniv on anticompetitive terms. Plaintiffs claim that Defendants engaged in sham litigation over Intuniv, and then settled that litigation on terms that delayed competition for both brand Intuniv, manufactured by Shire, and generic Intuniv, manufactured by Actavis. Plaintiffs bring claims on behalf of putative classes of direct and indirect purchasers of brand and generic Intuniv.

         Before the Court are Plaintiffs' requests to compel production of various documents that Defendants Actavis and Shire have withheld or produced with redactions under claims of attorney-client privilege, work product protection, or irrelevance. Direct Purchaser Plaintiffs filed an August 7, 2018 letter concerning Actavis' productions [ECF No. 159], [1] and Actavis responded on August 21, 2018 [ECF Nos. 173, 175]. The Direct Purchaser Plaintiffs also filed an August 14, 2018 letter concerning Shire's productions [ECF Nos. 164, 166], which they updated on August 22, 2018 [ECF Nos. 172, 174]; Shire responded on September 7, 2018 [ECF Nos. 181, 182]; and Direct Purchaser Plaintiffs filed a reply on September 14, 2018 [ECF No. 188]. The Indirect Purchaser Plaintiffs have joined the requests at issue. See Picone v. Shire U.S. Inc. (Indirect Purchaser Antitrust Class Action), 16-cv-12396 (D. Mass.), ECF Nos. 126, 131.

         Plaintiffs claim that Actavis has improperly withheld or redacted four categories of responsive, non-privileged documents: (1) generic operations meeting minutes and charts, containing projected launch dates and other business information; (2) documents concerning business or financial matters, such as product development and testing; (3) documents containing information Actavis shared with third parties without an exception to the third-party privilege waiver rule; and (4) documents for which Actavis' privilege log entries provide overly limited descriptions. [ECF No. 159 at 1].

         Plaintiffs also claim that Shire has improperly withheld or redacted three categories of responsive, non-privileged documents: (1) documents containing business or financial information, including launch dates, pre-settlement and post-settlement launch plans, and meeting agendas and minutes; (2) drafts of press releases and financial information; and (3) a document containing information that Shire shared with a third party without an exception to the third-party privilege waiver rule. [ECF Nos. 166 at 2, 174 at 2].

         Plaintiffs request that the Court order Actavis and Shire to produce documents in these categories, or alternatively order in camera review of some or all of the associated documents. For the reasons explained below, Plaintiffs' requests with respect to Actavis are DENIED and their requests with respect to Shire are GRANTED IN PART and DENIED IN PART.


         Nonprivileged documents that are responsive to reasonable requests for production and relevant to any party's claim or defense must, as a general matter, be produced. See Fed.R.Civ.P. 26(b)(1). The Federal Rules require parties to “produce documents as they are kept in the usual course of business” or to “organize and label them to correspond to the categories in the request.” Fed.R.Civ.P. 34(b)(2)(E)(i). In this action, the parties have produced documents pursuant to a protective order that allows them to redact non-responsive, confidential information in documents that elsewhere contain responsive information. The protective order also allows the parties to withhold confidential documents that do not contain responsive information, and which would otherwise be produced only to ensure document-family completeness. [ECF No. 99 ¶ 28]. The parties are not obligated to ensure complete consistency in redacting non-responsive information, nor are they obligated to log redactions of non-responsive information, but the protective order does not permit redaction of any responsive information. See id.

         Under the federal rules and consistent with common law privileges, litigants are permitted to redact or withhold documents based on applicable privileges. A party that withholds otherwise responsive documents under a claim of privilege must expressly assert the privilege claimed and produce a privilege log that “describe[s] the nature of the documents, communications, or tangible things not produced or disclosed” and provides enough information for “other parties to assess the claim.” Fed.R.Civ.P. 26(b)(5)(A).

         “The attorney-client privilege is the oldest of the privileges for confidential communications known to the common law.” Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). “By safeguarding communications between attorney and client, the privilege encourages disclosures that facilitate the client's compliance with law and better enable him to present legitimate arguments when litigation arises.” Lluberes v. Uncommon Prods., LLC, 663 F.3d 6, 23 (1st Cir. 2011). “The privilege is not limitless, however, and ‘courts must take care to apply it only to the extent necessary to achieve its underlying goals.' . . . ‘[T]he attorney-client privilege must be narrowly construed because it comes with substantial costs and stands as an obstacle of sorts to the search for truth.'” Id. at 23-24 (quoting XYZ Corp. v. United States (In re Keeper of Records), 348 F.3d 16, 22 (1st Cir. 2003)). “The party invoking the privilege must show both that it applies and that it has not been waived.” Lluberes, 663 F.3d at 24 (citing XYZ Corp., 348 F.3d at 22.).

         “The dimensions of the privilege itself are reasonably well honed. The privilege protects only those communications that are confidential and are made for the purpose of seeking or receiving legal advice.” XYZ Corp., 348 F.3d at 22. The privilege may extend to a third party who “helps the lawyer give legal advice, ” if the third party is “‘necessary, or at least highly useful, for the effective consultation between the client and the lawyer.'” Lluberes, 663 F.3d at 24 (quoting United States v. Kovel, 296 F.2d 918, 922 (2d Cir. 1961)); see Lynx Sys. Developers, Inc. v. Zebra Enter. Sols. Corp., No. 15-12297-GAO, 2018 WL 1532614, at *2 (D. Mass. Mar. 28, 2018) (holding that the third party must be “nearly indispensable or serve some specialized purpose in facilitating the attorney-client communications” and the communication must be “for the purpose of obtaining legal advice from the lawyer” (quoting Cavallaro v. United States, 284 F.3d 236, 247, 249 (1st Cir. 2002))). Courts also recognize that the privilege will not be waived when confidential information is communicated with third parties who share a common legal interest, so long as all parties are represented by counsel, and the information is communicated among privileged persons for the purpose of their common legal enterprise. See Cavallaro v. United States, 153 F.Supp.2d 52, 62 (D. Mass. 2001), aff'd, 284 F.3d 236 (1st Cir. 2002) (citing Bank Brussels Lambert v. Credit Lyonnais (Suisse) S.A., 160 F.R.D. 437, 447 (S.D.N.Y. 1995)). Otherwise, when “privileged communications are disclosed to a third party, the disclosure destroys the confidentiality upon which the privilege is premised.” XYZ Corp., 348 F.3d at 22.


         a. Redacted “Business Information”

         Plaintiffs claim that Actavis has produced a significant quantity of documents containing relevant business information with excessive redactions. To illustrate their argument, Plaintiffs provide exhibits, including several versions of minutes from Actavis' generic operations meetings that were produced with redactions, excel sheets that track Actavis' generic drug portfolio with redactions for projected launch dates and input from attorneys, and other business documents with similar information redacted. [ECF Nos. 159-2, 159-3, 159-4, 159-5]. According to Actavis, it redacted information pursuant to the attorney-client privilege and in accordance with the protective order's allowance for redacting irrelevant, confidential information.[2] [ECF No. 173].

         Actavis maintains that its redactions based on the attorney-client privilege were for legal advice that was circulated within Actavis. Confidential advice from an attorney does not lose its privileged character merely because it affects business plans or is conveyed within a document that also has non-privileged information. See Crane Sec. Techs., Inc. v. Rolling Optics, AB, 230 F.Supp.3d 10, 21-22 (D. Mass. 2017) (“The fact that communications are between non-lawyers does not per se waive the privilege.”); United States v. Windsor Capital Corp., 524 F.Supp.2d 74, 81 (D. Mass. 2007) (A communication primarily or predominantly for the purpose of legal advice does not lose its privileged character “by reason of the fact that it also dealt with nonlegal matters.”). The attorney-client privilege redactions at issue primarily concern information communicated under a header labeled “legal” or ...

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