In re HIV Antitrust Litigation

Filing 1943

ORDER re #1942 Instruction on Privilege Litigation. Signed by Judge Edward M. Chen on 6/6/2023. (emclc2, COURT STAFF) (Filed on 6/6/2023)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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IN RE HIV ANTITRUST LITIGATION.

Case No. 19-cv-02573-EMC

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ORDER RE INSTRUCTION ON
PRIVILEGE LITIGATION

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Docket No. 1942

United States District Court
Northern District of California

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This order memorializes the Court’s rulings on the parties’ dispute regarding the

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instruction on privilege invocation. The Court approved and read to the jury the following

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instruction:

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1.

Over the next few days, you will hear live testimony from current or former in-

house lawyers from Gilead and Teva.
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You will see documents and hear testimony by Teva employees and lawyers about

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Teva’s alleged beliefs regarding the strength or weakness of Gilead’s patents, the likelihood of

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winning or losing the emtricitabine (FTC) patent case, and reasons to settle the FTC patent case.

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You will see and hear this evidence because Teva waived its attorney-client privilege over those

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subject areas. As with all of the evidence you will see and hear in this case, you must determine

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what weight to give that evidence.

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3.

In contrast to Teva, Gilead did not waive privilege over those subject areas. That

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preservation of the attorney-client privilege is Gilead’s right under federal law. Because Gilead is

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asserting the attorney-client privilege, you will not hear testimony from Gilead employees or

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lawyers, or see communications between them, on the strength or weakness of Gilead’s patents,

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the likelihood of winning or losing the emtricitabine (FTC) patent case, or reasons to settle the

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FTC patent case. That is why the attorneys are not asking certain Gilead witnesses questions on

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these topics, and why certain Gilead witnesses will not testify on these topics.

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You should not draw any conclusion adverse to any party because a witness has

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invoked the privilege. Nor should you speculate on what a party’s counsel may have asked a

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witness, or how a witness may have testified, if the privilege had not been asserted.

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IT IS SO ORDERED.

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Dated: June 6, 2023

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United States District Court
Northern District of California

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______________________________________
EDWARD M. CHEN
United States District Judge

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