In a patent-infringement action, the question arose whether the attorney–client privilege protected documents discussing legal advice of the defendant’s Swedish predecessor. And then a second, threshold question arose: whether Swedish or U.S. law governed the privilege issue.

In a break from other federal courts, the Court for the ND ILL, “as a matter of comity,” applied a “functional approach” and determined that Swedish privilege law governed the discovery dispute. And applying Swedish privilege law, the Court found the documents unprotected. Baxter Int’l, Inc. v. Becton, Dickinson & Co., 2019 WL 6258490 (ND Ill. Nov. 22, 2019). You may read the opinion here.

U.S. or Swedish Law?

Becton Dickinson (BD) acquired Carmel Pharma, a Swedish company, in 2011. In its patent-infringement lawsuit against BD, Baxter International moved to compel documents “that purportedly reflect legal advice provided to Carmel Pharma … or its employees about patent-related issues.”

BD refused, arguing that, under the so-called “touch base” approach, U.S. privilege law applied. And that under In re Queen’s Univ. at Kingston, 820 F.3d 1287, 1295 (Fed. Cir. 2016), the attorney–client privilege covers a company’s communications with a foreign patent agent. For more information on this issue, read my post, Federal Circuit Adopts Patent–Agent Privilege.

The Touch Base Approach

The “touch base” approach is a choice-of-law doctrine. Under this doctrine, courts apply the privilege law of the country with the Keep Reading this POP Post

timing is everything joint prosecution privilege

It is “fairly clear” that, in a False Claims Act case, the common–interest doctrine protects the sharing of privileged timing is everything joint prosecution privilegeinformation between the government and relator after the government intervenes. What is “less than clear” is whether the doctrine protects privilege-sharing prior to intervention.

The Minnesota federal court faced this pre-intervention privilege issue. It held that the government and relator failed to prove a common interest prior to the relator’s § 3730(b)(2) notice to the USAO of the filing of a complaint. United States v. Cameron-Ehlen Group, Inc., 2019 WL 6875354 (D. Minn. Dec. 17, 2019). You may read the Court’s initial opinion here, and its final decision here.

Emoluments?

A whistleblower—and later the federal government—claimed that Minnesota-based Precision Lens induced physicians to purchase its intraocular lens “through expensive trips and other emoluments.” Precision Lens disputes the claims, as you can discern from this StarTribune article.

Timing is Everything

On April 25, 2013, the whistleblower-relator emailed an FBI agent informing her that “he had retained a law firm for a potential qui tam action.” The FBI agent responded that Keep Reading this POP Post

attorney-client privilege

The year 2019 produced several thought-provoking privilege issues for our consumption. And it saw the publication of my 300th post.

The Trump Administration again asserted privilege protections, including oneattorney-client privilege instance of protecting Obama-era information. The insurance industry saw varied privilege concerns arise, and in-house lawyers again saw the good—and bad—of privilege decisions.

Many practical issues arose for us everyday lawyers. These range from 502(a) subject-matter waiver, pre-deposition review of privileged documents, using client’s internal employees as expert witnesses, and privilege issues when lawyers represent the company and its employees.

Let’s review what was an interesting year.

300th Post

For my 300th post, I discussed an ethical and privilege quandary–whether a company’s lawyers must personally represent the employees to prevent the discovery of their communications. And does a conflict of interest arise? Dive into this discussion by reading Privilege, Ethics, and Company Counsel’s Representation of Employees.

Witness Statements

In one of my most-read posts, I discussed Judge Steger’s opinion that breaks down the work-product protections for witness statements. Witness Statements and Work Product—Is It Deceptively Simple?

Internal Investigations

Several courts addressed privilege issues that arise in internal investigations. Keep Reading this POP Post