Shire Development LLC et al v. Cadila Healthcare Limited et al

Filing 232

MEMORANDUM ORDER - that the communications at issue, being between Mr. NSV Raju and his employer, are not subject to attorney-client privilege, and it is FURTHER ORDERED that the parties shall confer with the Special Master to determine whether any additional argument or evidence is needed before he reconsiders his Report and Recommendation in light of this decision. Signed by Judge Kent A. Jordan on 10/19/12. (rwc)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELA WARE

SHIRE DEVELOPMENT INC., SHIRE
PHARMACEUTICAL DEVELOPMENT,
INC., COSMO TECHNOLOGIES
LIMITED, and GIULIANI
INTERNATIONAL LIMITED,
Plaintiffs,
v.
CADILA HEALTHCARE LIMITED
(d/b/a ZYDUS CADILA) and ZYDUS
PHARMACEUTICALS (USA) INC.,
Defendants.

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Civil Action No.1 0-581 (KAJ)

MEMORANDUM ORDER

At Wilmington this 19th day of October, 2012,
Before me is the issue of whether the internal communications of
Defendant Cadila Healthcare Limited ("Cadila") with Mr. NSV Raju, an employee of
Cadila who is trained in the law and heads the department that "functions as Cadila's
internal legal department for patent issues" (D.I. 228, at 2), are subject to attorney-client
privilege under the laws of India. Because the parties presented diametrically opposed
expert reports on this difficult question, I appointed, in consultation with the parties, a
neutral expert, Justice B.N. Srikrishna, former Justice of the Supreme Court of India, to
opine on the issue. See Fed. R. Civ. P. 44.1 e'ln determining foreign law, the court may

consider any relevant material or source, including testimony, whether or not submitted
by a party or admissible under the Federal Rules of Evidence."); Fed. R. Evid. 706
(permitting court to appointed experts). Having reviewed the parties' several
submissions on the issue, including their expert reports and the cases cited therein, as
well as Justice Srikrishna's report and follow-up questioning by the parties, I now make
my ruling.
Justice Srikrishna opined that communications between an employee like
Mr. Raju and his employer are not privileged under the laws of India. (See Report of
Justice B.N. Srikrishna, D.L 209.) Despite Defendants' concerted efforts to undermine
the reasons Justice Srikrishna gave for that conclusion, I am satisfied that his opinion is
thoughtful, well-grounded, and persuasive. I therefore adopt it as my own, for the
reasons he expressed therein, and conclude that, under the laws of India, attorney-client
privilege does not attach to communications between a legally trained corporate
employee and his employer.
In so ruling, I also conclude that Special Master Joshua W. Martin, III,
Esq., should revisit his Report and Recommendation regarding Defendants' assertion of
attorney-client privilege based on Mr. Raju's internal communications at Cadila.
It is therefore ORDERED that the communications at issue, being between
Mr. NSV Raju and his employer, are not subject to attorney-client privilege, and it is
FURTHER ORDERED that the parties shall confer with the Special Master to determine

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whether any additional argument or evidence is needed before he reconsiders his Report
and Recommendation in light of this decision.

u.

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