On June 19, 2018, the Court of Appeals for the District of Columbia, provided an important reminder on when a communication can be considered privileged. According to the decision, a document is privileged depending on the purpose of the communications at issue. Before producing documents in a litigation, to maintain attorney-client privilege, counsel should determine whether the purpose of the communication was to obtain or provide legal advice, even if there were other business reasons for the communication.
In this case, for example, some communications “had a legal purpose: to help the company ensure compliance with the antitrust laws and negotiate a lawful settlement. But the communications also had a business purpose: to help the company negotiate a settlement on favorable financial terms.
In a situation like this where a communication has multiple purposes, courts apply the “primary purpose” test to determine whether the communication is privileged.” In this instance, the Court deemed that the communications between the company’s employees and the general counsel were protected by the attorney-client privilege because they aimed at obtaining legal advice concerning settlement and antitrust matters.
FTC v. Boehringer Ingelheim Pharms., Inc., 2018 U.S. App. LEXIS 16403, 892 F.3d 1264, 2018-1 Trade Cas. (CCH) P80,420, 2018 WL 3028972 is available at https://www.cadc.uscourts.gov…
Originally published on Technethics on July 2018