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Federal Trade Commission v. Boehringer Ingelheim Pharmaceuticals, Inc.

United States District Court, District of Columbia

September 27, 2016




         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 in 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]


         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., 286 F.R.D. 101, 104-06 (D.D.C. 2012) (“Boehringer I”), aff'd in part, rev'd in part, and remanded, 778 F.3d 142 (D.C. Cir. 2015); FTC v. Boehringer Ingelheim Pharmaceuticals, Inc., 778 F.3d 142, 146-48 (D.C. Cir. 2015) (“Boehringer II”). The Court will summarize only the important background information here. It will then describe the Court's prior ruling, the appeal to the D.C. Circuit, and the posture of the case on remand.

         A. The Boehringer-Barr Litigation and the FTC Subpoena

         The FTC filed an action to enforce a subpoena duces tecum directed at Boehringer. See Petition to Enforce Subpoena [Dkt. 1]. The FTC is investigating a settlement agreement in a prior patent lawsuit between Boehringer and a generic drug manufacturer, Barr Laboratories. Memorandum in Support of Petition to Enforce Subpoena [Dkt. 1-4] at 1-2. The FTC wants to learn whether Boehringer and Barr engaged in unfair trade practices or violated antitrust laws. Id. In the subpoena that is the subject of the instant suit, the FTC seeks documents from Boehringer relating to the patent litigation, the settlement of that litigation, and other agreements between Boehringer and Barr entered into at the time of settlement. Id. at 5-6.

         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., 562 F.Supp.2d 619, 622 (D. Del. 2008), rev'd 592 F.3d 1340 (Fed. Cir. 2010). After Boehringer lost at trial but won a reversal from the Federal Circuit on appeal, the parties agreed to settle the case. See Boehringer I, 286 F.R.D. at 105. During the course of the lawsuit, Marla S. Persky was the Senior Vice President, General Counsel, and Secretary of Boehringer Ingelheim USA Corporation, Boehringer Ingelheim Corporation, and Boehringer Ingelheim Pharmaceuticals, Inc. Id. She helped advise her client on the settlement terms and surrounding agreements. Id. As will be seen, she sits at the center of this subpoena enforcement action.

         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, 778 F.3d at 146. To the FTC, these terms made it appear as though Barr agreed to delay marketing its generics, giving Boehringer a monopoly on profits for a time and, in exchange, Boehringer would pay off Barr from those sales. Boehringer I, 286 F.R.D. at 105.

         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 co-promotion agreement between Boehringer and Barr regarding Aggrenox; (2) forecasting analyses of possible timelines for Barr's generic drug to enter the market; (3) financial analyses of the business terms of the settlement agreement; and (4) notes taken by business executives. Id. at 108. The FTC argued that it had “an overriding and compelling need” for disclosure of these documents. Id. Further, the FTC asserted that the attorney-client privilege did not apply because the documents were “business documents that had no attorney as an author or recipient, or included an attorney only as part of a distribution to business executives.” Id.

         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. Boehringer 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 [Boehringer's] counsel in response to litigation.” Id. at 108-09. In Boehringer's view, then, the documents constituted work product. Id. at 109. Morever, 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 litgation” 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 affidavits Boehringer submitted, in which the attorneys averred that the financial analyses were prepared during settlement discussions at the request of Boehringer attorneys who were negotiating the settlement. Id. Further, the Court reasoned that the documents themselves confirmed attorney Persky's claims that the analyses were created at her direction. Id. The Court found that “[t]his was information she needed in order to provide her client . . . with legal advice regarding the potential settlement[.]” Id. The Court held that “[i]nformation used to assess settlement option [sic] clearly falls within the ambit of the work product doctrine.” Id. (citing Willingham v. Ashcroft, 228 F.R.D. 1, 4 (D.D.C. 2005)).

         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 [Boehringer'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, 449 U.S. 383, 400 (1981); Dir., Office of Thrift Supervision v. Vinson & Elkins, LLP, 124 F.3d 1304, 1307 (D.C. Cir. 1997) (“Opinion work product . . . is virtually undiscoverable.”). The Court further found that “the factual inputs” in the documents “cannot be reasonably segregated from the analytical outputs.” Boehringer I, 286 F.R.D. at 110. In other words, disclosing which data the Boehringer attorneys requested to be analyzed in connection with settlement would “necessarily reveal the attorneys' mental impressions, including, at a bare minimum, that the attorneys believed such analyses of that data was [sic] necessary or important to determining an appropriate settlement.” Id.

         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 scenarios and are not in any way evidence of any conspiratorial intent to violate the law.” Id. The Court observed that

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. Id. 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., 204 F.R.D. 129, 134 (S.D. Ind. 2001); Johnson v. Sea-Land Servs. Inc., No. 99-civ-9161, 2001 WL 897185, at *2 (S.D.N.Y. Aug. 9, 2011)). Thus, the Court found that emails conveying a request for legal advice were protected by the attorney-client privilege even though neither the authors nor the recipients were attorneys. Id. Nevertheless, the Court ordered that if a long email chain contained some non-privileged emails which could be excised from the remainder, those emails should be disclosed. Id.

         C. Boehringer II

         The FTC appealed. Boehringer II, 778 F.3d at 145.[3] The FTC challenged the Court's ruling only as to one category of documents identified below - 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 147 (noting that the Court's rulings on “emails, notes, and reports on strategic decisions and other issues[, ] emails containing legal advice or requests for legal advice[, ] transmittal emails[, ] and duplicate documents” were not challenged in the appeal); see also Brief of Appellant Federal Trade Commission, FTC v. Boehringer Ingelheim Pharmaceuticals, Inc., 778 F.3d 142 (D.C. Cir. 2015) (No. 12-5393), 2013 WL 3271346, at *13-16 (limiting appeal to financial documents analyzing settlement and co-promotion agreement).

         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, 778 F.3d at 146. The Court of Appeals also affirmed the Court's conclusion that the vast majority of the co-promotion materials were protectable as work product. Id. However, the D.C. Circuit remanded with respect to small body of co-promotion documents prepared after the settlement agreement was executed, a temporal distinction which the Court below failed to address. Id. Finally, the Court of Appeals reversed the Court and remanded on the issue of whether these documents were fact or opinion work product, which the D.C. Circuit found the Court to have misapprehended. Id.

         In reaching this conclusion, the Court of Appeals canvassed the history of the work-product doctrine from its genesis in Hickman v. Taylor, 329 U.S. 495 (1947), to its codification in Federal Rule of Civil Procedure 26(b)(3)(A) and discussed the relevant standard employed in this Circuit for determining whether a document has been created “in anticipation of litigation” as required by Rule 26(b)(3)(A). Boehringer II, 778 F.3d at 148-49. The Court of Appeals reiterated the long-standing “because of” test, which asks “‘whether, in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation.'” Id. at 149 (quoting United States v. Deloitte LLP, 610 F.3d 129, 137 (D.C. Cir. 2010) (internal quotation marks omitted)). The Court of Appeals noted that “[w]here a document would have been created ‘in substantially similar form' regardless of the litigation, work product protection is not available.” Id. (quoting Deloitte, 610 F.3d at 138).

         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, “[c]ommon 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.” Id. Thus, the Court of Appeals affirmed the Court's finding below that the co-promotion agreement was “integral” to settlement of the Boehringer-Barr suit and was therefore created in anticipation of that suit. Id.

         The D.C. Circuit remanded, however, as to several documents prepared after the settlement agreement was executed. Id. 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 analyses 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, 124 F.3d at 1308). However, the Court of Appeals cautioned that “‘not every item which may reveal some inkling of a lawyer's mental impressions . . . is protected as opinion work product.'” Id. (quoting In re San Juan Dupont Plaza Hotel Fire Litig., 859 F.2d 1007, 1015 (1st Cir. 1988)). Instead, “[o]pinion work product protection is warranted only if the selection or request reflects the attorney's focus in a meaningful way.” Id. Additionally, a court reviewing a claim of work product protection must discern whether factual material in a document can be disclosed without revealing an attorney's mental impressions. Id. at 152.

         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, 146 F.3d 881 (D.C. Cir. 1998), in which the Circuit court held that facts recorded in an attorney's notes of preliminary interviews with a witness were not protectable merely because the attorney chose to write down those facts. Id. at 236-37. Rather, to rise to the level of opinion work product, the document must reflect that the attorney “sharply focused or weeded the materials.” Id. at 236.

         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, 778 F.3d at 152. In the Court of Appeals' view, “counsel's requests were often general and routine” and “the only mental impression that can be discerned is counsel's general interest in the financials of the deal.” Id. The D.C. Circuit found these were not the sort of mental impressions or opinions the work-product doctrine was meant to protect, observing that “such interest reveals nothing at all: anyone familiar with such settlements would expect a competent negotiator to request financial analyses like those performed here, and Boehringer does not attempt to hide this interest in its briefs.” Id. Because Boehringer's counsel's thoughts were “already well-known, ” then, there existed no danger of revealing those attorneys' mental impressions. Id.

         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 analyses 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 HealthSouth Corp. Sec. Litig., 250 F.R.D. 8, 11 (D.D.C. 2008)). The Court of Appeals found that the Court below erred when it “failed to demand such a showing from Boehringer and instead concluded categorically that the contested documents were highly protected opinion work product.” Id.

         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, 676 F.2d at 809-11); see also Fed.R.Civ.P. 26(b)(3)(A)(ii) (requiring a party seeking to discover factual work product to demonstrate that “it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means”). This Court, finding that the analyses represented opinion work product, had only considered whether the FTC had met the virtually unreachable standard for such materials. Id.

         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 Boehringer'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' requirement in this manner.” Id. (internal citations omitted). Thus, the Court of Appeals concluded that the lack of “smoking guns” in the documents was not fatal to the FTC's claim of need. Id. at 154-56.

         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., 555 F.2d 862, 874 (D.C. Cir. 1977) (en banc)). Because the FTC is “merely exercising its legitimate right to determine the facts” and to decide whether a complaint should issue, ” Texaco, 555 F.2d at 874, the fact that the analyses “reveal an absence of conspiratorial intent . . . may be helpful to the FTC in determining whether to issue a complaint in the first place.” Boehringer II, 778 F.3d at 157; see also id. at 147 (noting that the Boehringer-Barr settlement, while “not necessarily unlawful, . . . may be subject to antitrust scrutiny if it appears that the patent-holding firm - here, Boehringer - was using the co-promotion agreement as a vehicle to avoid legitimate competition”).

         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 analyses “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 to the body of disputed documents as a whole. See id. at 23-24.

         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, 286 F.R.D. at 112 (Appendix A), to the extent such documents came within the scope of the FTC's appeal as defined in its opening brief on appeal, see Brief of Appellant Federal Trade Commission, 2013 WL 3271346, at *12-16 (June 28, 2013). Specifically, the Court stated that it would review non-duplicative documents within Categories A, B, and E that contained (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. Dec. 2, 2015 Order at 2.

         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]


         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., 249 F.3d 1077, 1081 (D.C. Cir. 2001); In re Lindsey, 158 F.3d 1263, 1270 (D.C. Cir. 1998). “The basis of [a] privilege must be adequately established in the record, through evidence sufficient . . . to establish the privilege . . . with reasonable certainty.” In re Subpoena Duces Tecum Issued to Commodity Futures Trading Comm'n, 439 F.3d 740, 750 (D.C. Cir. 2006) (alterations in original) (quotation marks omitted). This requires the party asserting privilege to “adduce competent evidence in support of its claims, ” something beyond “conclusory statements, generalized assertions, and ...

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