Judge Brett Kavanaugh, President Trump’s nominee to replace Justice Kennedy on the U.S. Supreme Court, recently authored an important attorney–client privilege opinion for corporate legal counsel.
Judge Kavanaugh held that the privilege covered a General Counsel’s communications involving legal and business issues because “one of the significant purposes of [her] communications was to obtain or provide legal advice,” with an emphasis on “one.” Federal Trade Comm’n v. Boehringer Ingelheim Pharmaceuticals, Inc., 2018 WL 3028972 (CADC June 19, 2018). You may read the decision here.
A GC’s Communications
In 2008, Boehringer, a pharmaceutical company, negotiated a patent-infringement settlement with generic-drug manufacturer Barr Pharmaceuticals. The agreement was a so-called “reverse-payment” settlement because the patent holder (Boehringer) paid the alleged infringer rather than the other way around.
The FTC, which monitors reverse-payment settlements to ensure compliance with antitrust laws, issued a subpoena to Boehringer requesting, in part, communications involving Boehringer’s General Counsel. The requested communications allowed the GC “to analyze and navigate the treacherous antitrust issues surrounding reverse payment settlements,” but also reflected her communications with Boehringer executives regarding a possible settlement. Boehringer argued that the attorney-client privilege protected the entirety of the communications.
Noting that the attorney–client privilege “applies whether the attorney is in-house counsel or outside counsel,” Judge Kavanaugh recognized that “[t]he application of the attorney–client privilege can become more complicated when a communication has multiple purposes—in particular, a legal purpose and a business purpose.”
Judge Kavanaugh found that More…
We’ve heard this mantra from many judges: simply copying an in-house lawyer on an email does not render the email privileged. Need proof? Read these cases: EEOC v. BDO USA, LLP, 2017 WL 5494237 (CA5 Nov. 16, 2017); Andritz Sprout-Bauer, Inc. v. Beazer East, Inc., 174 FRD 609, 633 (M.D. Pa. 1997); United States v. Chevron Texaco Corp., 241 F. Supp. 2d 1065, 1076 (N.D. Cal. 2002).
But one case reveals that this truism is not always, well, true. In Morgan v. Butler, 85 N.E.3d 1188 (Ohio Ct. App. 2017), available here, the court ruled that the attorney–client privilege protected three emails sent from an Ohio EPA supervisor to non-lawyer EPA employees with copies to EPA in-house lawyers. And the story of how the EPA achieved this privilege victory is instructive for the rest of us. More…
The USDC for the ED Louisiana issued a short but instructive privilege opinion for in-house lawyers. The court found the in-house counsel privilege “more difficult” to apply, ruled that an executive’s cc’ing in-house counsel is insufficient, imposed a “primary purpose” standard, and generally rejected the privilege because there was “no indication” that the employee emailing the in-house lawyer was seeking legal advice. Texas Brine Co. v. Dow Chemical Co., 2017 WL 5625812 (ED La. Nov. 21, 2017). You may read the opinion here.
Dow Chemical challenged the privileged nature of several emails involving Texas Brine’s in-house lawyers, and the court recognized the difficulty in assessing in-house lawyers’ privilege assertions. The court found it “more difficult” to define the privilege’s scope because in-house counsel “serve multiple roles,” including non-legal ones, and have an “increased level of participation in the day-to-day operations of the corporation.”
The Primary Purpose or A Primary Purpose?
Because of a perceived increase in corporate counsel’s business roles, the court required the Texas Brine lawyers to prove that “the primary purpose” of the emails was to secure legal advice. The court explained this “test” as whether the in-house lawyer participated in the communication “primarily for the purpose of rendering legal advice.” Merely identifying a legal issue in the email is insufficient—the “lawyer’s role as a lawyer must be primary to her participation.” More…