Federal Trade Commission v. Reckitt Benckiser Pharmaceuticals, Inc.
Filing
42
MEMORANDUM OPINION. See Opinion for details. Signed by District Judge Robert E. Payne on 03/09/2015. (ccol, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
1
!r^
Richmond Division
J
MAR 1 0 2015
1
FEDERAL TRADE COMMISSION,
L
CLERK, U.S. DiSTR.CT COUm
Plaintiff,
RICHMOND, VA
Misc.
V.
RECKITT
No.
3:14mc5
BENCKISER
PHARMACEUTICALS,
INC.,
Defendant.
MEMORANDUM OPINION
This
matter
FEDERAL
TRADE
INVESTIGATIVE
COMMISSION'S
is
before
the
COMMISSION
DEMAND
MOTION
Court
FOR
AN
(Docket
TO
No.
ENFORCE
CIVIL
MEMORANDUM IN SUPPORT THEREOF
on
the
ORDER
2),
PETITION
THE
ENFORCING
CIVIL
FEDERAL
TRADE
the
INVESTIGATIVE
(Docket No.
OF
DEMAND
38),^ the
AND
claim of
attorney-client privilege in response to the Civil Investigative
Demand
("CID")
made by Reckitt Benckiser Pharmaceuticals,
Inc.
("Reckitt"), and the Court's ORDER TO SHOW CAUSE (Docket No. 6,
amended in Docket No.
20).
BACKGROUND
On
June
issued a
determine
[J
J
13,
CID to
whether
2013,
the
Reckitt
Reckitt
Federal
pursuant
had
to
Trade
Commission
which
the
engaged
in
FTC
unfair
("FTC")
sought
to
methods
of
^ Counsel are instructed that motions and memoranda are entirely
separate documents with different
legal
significance and thus
are not to be melded into a single document.
competition with respect to its branded drug,
Suboxone.
In
particular, the FTC is:
Investigating whether Reckitt abused public
regulatory
processes,
including
filing
a
citizen petition with the U.S. Food and Drug
Administration
{"FDA")
and
negotiating
with
competing
manufacturers,
to
maintain
its
monopoly in the market for Suboxone, an opioid
treatment
distributed
through
prescription,
rather than by clinic-based methods.
PETITION OF THE FEDERAL TRADE COMMISSION FOR AN ORDER ENFORCING
CIVIL
INVESTIGATIVE
DEMAND
(Docket
No.
2),
p.
1
("FTC
Petition").
In response
documents,
but
to the CID,
has
withheld
Reckitt produced almost
approximately
the grounds of attorney-client privilege.
withheld
documents
as
consisting
of:
28,000
600,000
documents
on
Reckitt describes the
"(a)
emails
containing
confidential requests made by Reckitt to its attorneys seeking
legal advice regarding the content and preparation of various
documents;
(b)
drafts
of
those
various
documents
accompanying
these confidential requests provided by Reckitt to its lawyers
for
review;
(c)
comments,
notes,
and
mark-ups
of
the
draft
documents prepared by Reckitt's counsel and provided to Reckitt;
and
(d)
draft letters, memoranda,
documents
prepared
by
Reckitt's
position statements and other
attorneys
and
shared
with
Reckitt in the course of providing legal advice." Docket No. 33,
at
8.
The
FTC describes
the
documents
as
"drafts
and
other
documents relating to [the] petition, including draft memoranda,
draft
letters,
draft
press
releases,
draft
documents, and draft reports, among others."
public
relations
Docket No. 24, at
6.
The
FTC
requiring
Petition
Reckitt
to
asked
produce
the
Court
to the
to
FTC
issue
the
Reckitt has withheld on ground of privilege.
an
order
documents
that
Specifically, the
FTC contends that certain types of documents are not privileged,
namely:
"(1)
published;
(3)
drafts of documents published or intended to be
(2) attorney notes or edits related to those drafts;
emails
related
to
or
accompanying
the
drafts;
and
(4)
attorney advice provided based on the drafts, such as in emails
and memoranda."
Cause,
that
was
at
later
9.
The Court issued an Order to Show
amended,
scheduling
a
hearing
privilege issue. Docket No. 6; Docket No. 20.
MEMORANDUM
IN
COMMISSION
FOR
(Docket No. 24).
has
replied
review.
SUPPORT
AN
ORDER
OF
PETITION
ENFORCING
OF
CIVIL
on
the
The FTC filed a
THE
FEDERAL
TRADE
INGESTIGATIVE
DEMAND
Reckitt has responded (Docket No. 25); the FTC
(Docket
Thereafter,
No.
35)
the FTC,
and
the
issue
is
now
ripe
for
acting under the erroneous belief
that it prevailed on its motion for an order enforcing the CID
(Docket
No.
2)
and
to
enforcement was required,
MOTION TO ENFORCE CIVIL
elaborate
on
its
view
that
blanket
filed the FEDERAL TRADE COMMISSION'S
INVESTIGATIVE
DEMAND AND MEMORANDUM
IN
SUPPORT
THEREOF
(Docket
No.
38)
which
also
has
been
fully
briefed and is ripe for review.
DISCUSSION
I.
Existence Of The Claimed Privilege
Reckitt argues that it cannot be required to produce the
documents
sought
by
the
FTC
because
those
documents,
which
"includ[e] draft memoranda, draft letters, draft press releases,
draft
public
others",
relations
documents,
and
draft
reports,
among
are protected from disclosure by the attorney-client
privilege.
Docket
No.
privilege
applies,
24
it
at
6.
affords
"When
the
attorney-client
confidential
communications
between lawyer and client complete protection from disclosure."
In re Grand Jury Subpoena
(4th Cir. 2003)
(Grand Jury 2003) ,
341 F. 3d 331,
335
(internal citations and quotations omitted).
In
the Fourth Circuit, the attorney-client privilege:
...applies only if
(1)
the
asserted holder
of the privilege is or sought to become a
client;
(2)
the
person
to
whom
the
communication
the bar of a
was made (a) is a member of
court, or his subordinate and
(b) in connection with this communication is
acting as a lawyer; (3) the communication
relates
informed
to
a
(a)
fact
of
by his
which
client
the
(b)
attorney was
without
the
presence of strangers (c) for the purpose of
securing primarily either (i) an opinion on
law
or
(ii)
legal
services
or
(iii)
assistance in some legal proceeding,
and not
(d) for the purpose of committing a crime or
tort; and (4) the privilege has been (a)
claimed and (b)
not waived by the client.
Id.
(quoting United States v. Jones, 696 F.2d 1069, 1072 (4th
Cir. 1982
The
(per curium))).
proponent
carries
the
burden
of
establishing
the
existence of the attorney-client relationship, the applicability
of the privilege to the specific communication at issue, and the
absence of waiver.
Jones,
full
Grand Jury 2003,
341
F. 3d at 335
(quoting
696 F.2d at 1072). "Because this privilege impedes the
and
free
discovery
of
the
truth,
it
must
be
narrowly
construed and recognized only to the very limited extent that
excluding relevant evidence has a public good transcending the
normally predominant principal of utilizing all rational means
for ascertaining truth."
The
FTC
argues
Grand Jury 2003, 341 F.3d at 335.
that
attorney-client
privilege
does
not
apply to the withheld documents because "the Fourth Circuit has
long held that 'the attorney-client privilege does not apply to
communications
disclosure'",
in
connection
which
with
would
include
here
a
proposed
Reckitt's
public
published
citizen petition, and the other documents that it seelcs in the
FTC
Seal,
Petition.
Docket
33 F.3d 342,
with that point,
the
No.
354
24
(citing
United
(4th Cir. 1994)).
States
v.
Under
Reckitt takes issue
arguing that the Fourth Circuit has rejected
FTC's "purely legal
argument"
and instead has
recognized
"the distinction between confidential communications regarding a
document
and
the
later
publication
of
the
document
itself."
Docket No. 33, at 17.
Reckitt further argues that the privilege
is inapplicable only when the attorneys serve "as mere conduits
of
information
to
be
disclosed
publicly"
rather
than
as
providers of legal advice, and that this distinction turns on
the client's expectations of confidentiality.
Id. at 18,
22
(citing Grand Jury 2003).
In the
the
mere
Fourth Circuit,
relationship
of
"it is the unquestioned rule that
attorney-client
presumption of confidentiality."
748
F.2d 871,
875
(4th Cir.
does
not
warrant
a
United States v. (Under Seal),
1984).
Instead,
"the privilege
applies only when the persons claiming the privilege [have] as a
client consulted an attorney for the purpose of securing a legal
opinion
or
services."
I^
Further,
"even
where
the
confidential communications of the client are present, privilege
will not apply when disclosure is intended."
Real Estate Income Fund,
F.R.D. 398, 412-14
Inc.
v.
Neuberger Berman
Lola Brown Trust No.
IB,
230
(Dist. Md. 2005).
The Fourth Circuit has held that attorney-client privilege
"does not apply to the situation where it is the intention or
understanding of the client that the communication is to be made
known to others."
In re Grand Jury Proceedings,
1356 (4th Cir. 1984).
satisfy
the
727 F.2d 1352,
This is because that situation does not
requirement
that
a
communication
attorney-client privilege be confidential.
falling
under
To determine whether
confidentiality
existence
of
was
the
intended,
"[r]ather
attorney-client
than
look
to
the
or
to
the
relationship
existence or absence of a specific request for confidentiality,
a court must look to the services which the attorney has been
employed to provide,
and determine
if those
services would
reasonably be expected to entail the publication of the client's
communications."
United States v.
(Under Seal), 748 F.2d at 875
(holding that a client retaining an attorney to investigate only
the
possibility of
filing
papers
did not
have
the
required
intent to publish) ; See also In re Grand Jury Proceedings, 727
F.2d at 1358
prospectus
(holding that, when a client decides to publish a
before
retaining
an
attorney,
that
client
has
demonstrated the required intent to publish and attorney client
privilege does not apply).
The
Fourth
Circuit
has
also
held
that,
"if
a
client
communicates information to his attorney with the understanding
that
the
information
information,
was to be
States V.
will
as well as
published'
Under Seal,
(Under Seal),
c l a r i f i e d that:
be
revealed
to
others,
'the details underlying the data which
will not enjoy the privilege."
33
that
F.3d at 354
748 F.2d at 875).
United
(quoting United States v.
The Court of Appeals further
"the
details
underlying
the
communications
published
relating
are
the
the
the
document... to be published containing
data,
all preliminary drafts of the
any
the
data
document,
and
containing
preparation
material
necessary
to
the
of the document.
Copies of
other documents,
attorney's
data,
notes
the contents of which were
necessary
to
published
document
the
preparation
will
of
the
lose
also
the
privilege."
United States v.
"if
any
of
(Under Seal),
the
748
F.2d at 875,
non-privileged
documents
n.7.
However,
contain
client
communications not directly related to the published data, those
communications,
if otherwise privileged, must be removed by the
reviewing court before the document may be produced."
The
determination
of
(1)
what
services
the
Id.
lawyer
was
employed to provide and (2) the client's understanding whether
the information will be revealed to others are both matters of
fact.
Thus,
unless
the parties stipulate to those points or
they are not contested, decisions on both points must be based
on record evidence.
Reckitt
published
argues
documents
that
do
the
not
communications
lose
their
underlying
protection
under
the
the
attorney-client privilege because they have the status of "legal
advice"
that
the
company
intended
to
be
confidential.
It
contends that the attorney-client privilege does not exist when
the
attorney
serves
as
a
"mere
conduit"
for
communication
information to the public and that where the attorney provides
8
"legal advice regarding the content of various documents," the
attorney-client privilege applies in full force.
at
22.^
Reckitt's
positions
misapprehend
Docket No. 33,
the
law
in
this
circuit.
As discussed above,
relevant
inquiry
unaltered
whether,
not
information
at
together,
is
the
the Fourth Circuit has held that the
time
whether
through
the
an
the
client
merely
attorney to
attorney
and
the
client
funneled
public,
were
but
working
the client had enlisted the attorney's services in
order to prepare a document that would eventually be released to
the public.
If the client has solicited the attorney's services
to facilitate the production of a public document,
Circuit
has
extend to
held
that
the
attorney-client
the published data
and the
the Fourth
privilege
details
does
not
underlying
it.
That, of course, could include any of the documents that Reckitt
has labeled "legal advice", if the "legal advice" qualifies as a
detail underlying the published data.
Reckitt
also
argues
that
the most
recent
case on point. In re: Grand Jury Subpoena
341
F.3d
331
attorney-client
(4th
Cir.
privilege
2003),
to
the
weighs
Fourth Circuit
("Grand Jury 2003"),
in
documents
favor
of
extending
that
it
seeks
to
^ The parties agree that the question here is whether the
privilege exists, not whether a privilege has been waived.
See
Oral Argument Transcript, October 27, 2014 (Docket No. 37) at 35,
37-38.
withhold.
In Grand Jury 2003,
the Fourth Circuit "reiterated
the client's intent to publish as the touchstone for determining
whether confidentiality was expected and whether attorney-client
privilege would attach."
Grand Jury 2003,
Neuberqer,
230 F.R.D.
In
the client included a false statement in the
green card application that he sent to the
Naturalization Services.
FBI,
at 414.
Immigration and
When the client was questioned by the
he indicated that he had answered the question as he had
based on previous conversations with an attorney.
After being
subpoenaed, the attorney refused to answer questions about the
alleged advice and claimed attorney-client privilege, which the
district
court
Circuit
stated
Counsel
and
Fourth
that
and
Circuit
"the
[client]
recognized.
underlying
regarding
The
communications
his
Fourth
between
submission...[were]
privileged, regardless of the fact that those communications may
have assisted
document."
[the client]
in answering questions
Grand Jury 2003, 341 F.3d at 336.
in a public
"The Government's
question asked Counsel to reveal the substance of legal advice
that she may have given Appellant concerning his submission [of
the
form]
-
a
confidential
communication
within the scope of the privilege."
that
clearly
falls
Id.
Reckitt contends that Grand Jury 2003 is to be construed as
contradicting previous Fourth Circuit decisions on the subject.
That
contention
fails
for
two
10
reasons.
First,
there
is
a
difference between Grand Jury 2003 and the Circuit's previous
cases that explains the holding in Grand Jury 2003 and that
limits
its
employed
reach.
the
information;
advice."
In Grand Jury 2003,
attorney
he
had
for
purposes
consulted
Neuberger,
230
"the client had not
with
F.R.D.
at
of
publishing
the
attorney
414.
That
for
is
a
any
legal
quite
different circumstance than the Fourth Circuit cases in which a
client retains an attorney for the purpose of "assist[ing]
in
preparing [a] prospectus which was to be published" (In re Grand
Jury
Proceedings,
securities
727
filings
F.2d at
to
be
1358)
filed
or
with
for
the
Commission (United States v. Under Seal,
helping to draft
Securities
Exchange
33 F.3d at 354) or for
preparing the kinds of documents that are intended for public
disclosure.
In Grand Jury 2003,
legal
advice
disclosure.
a
public
discussed
and
not
the client consulted the attorney for
for
assistance
in
making
a
public
While the client in Grand Jury 2003 eventually made
disclosure
with
his
that
contained
attorney,
the
some of
client
did
the
not
information
solicit
the
attorney's services for the purpose of drafting the disclosure.
Rather,
the
relationship
was
initiated
for
the
purposes
of
communicating legal advice which would later allow the client to
decide what to do with such advice.
Under those circumstances,
the decision in Grand Jury 2003 is consistent with the precept
11
that "the attorney-client privilege does protect coiranunications
made
between
attorney
and
client
when
the
client
is
only
considering publication... and is seeking legal advice regarding
that possibility."
In re Grand Jury Proceedings, 22 F.3d at 354
(emphasis in original).
And, considered on its facts,
Grand
Jury 2003 does not alter earlier circuit law governing documents
prepared to be published.
Second, Reckitt's view of Grand Jury 2003 necessitates the
conclusion that Grand Jury 2003 overrules,
sub silento,
a
long
standing line of opinions that establish the principle that the
attorney-client privilege does not apply to communications in
connection with a proposed public disclosure of the sort here at
issue.
That, of course, cannot be done other than by an ^
decision.
Cir.
See McMellon v.
2004)
United States,
387 F.3d 329,
334
banc
(4th
("[W]hen there is an irreconcilable conflict between
opinions issued by three-judge panels of this court,
the first
case
followed,
to
decide
the
issue
is
the
one
that
must
be
unless and until it is overruled by this court sitting en banc
or by the Supreme Court.") And, even if Grand Jury 2003 departed
from that precept, it certainly would not have done so silently.
Reckitt
U.S.
383
also
(1981).
issue in this case.
company that,
relies
But,
on
Upjohn
Upjohn does
Co.
not
v.
United
control
States,
the
449
privilege
In Upjohn, Upjohn Co. was a pharmaceutical
after discovering that a foreign subsidiary had
12
"made
payments
to
or
for
the
benefit
of
foreign
officials in order to secure government business",
government
ordered its
general counsel to conduct an internal investigation into the
"questionable
payments."
Id.
at
387.
As
part
of
the
investigation, counsel distributed letters and questionnaires to
mid- and lower-level employees.
The letters and questionnaires
were described as "highly confidential."
Id.
investigation
several
revealed
a
history
of
Eventually,
the
questionable
payments and Upjohn "voluntarily submitted a preliminary report
to the Securities and Exchange Commission."
Id.
Revenue
investigation
issued
Service
a
summons
questionnaires
notes
conducted
of
for,
sent
the
employees."
an
among
to
at
other
Upjohn
interviews
Id.
independent
evidence,
employees
and
conducted...with
388.
Upjohn
The Internal
claimed
the
written
"memorandums
or
officers
and
attorney-client
privilege and refused to produce the requested documents.
Supreme
Court
reversed
the
lower courts'
and
decision
The
and upheld
Upjohn's claim of attorney-client privilege.
Reckitt
argues
questionnaires,
that
the
attorneys'
Supreme Court's
notes,
and
ruling
memoranda
that
the
concerning
employee interviews were protected by attorney-client privilege
in Upjohn supports its argument that the documents being sought
by the FTC are likewise protected.
Reckitt,
the
fact
that
Upjohn's
13
Docket No. 33, at 10.
"investigation was
Says
undertaken
with a view towards disclosing the payments to the SEC" rendered
analogous the factual situations here and in Upjohn and thus
warrants applying the direct holding of Upjohn in this case.
Id.
at 11.
Reckitt's argument fails for two reasons.
First,
the "public disclosure" issue was not in front of the Supreme
Court in Upjohn.
The question in Upjohn was whether the "scope
of attorney-client privilege in the corporate context" extended
to
communications
counsel.
between
Upjohn,
449
"decline [d]
to
govern
conceivable
all
lower-level
U.S.
lay down
at
a
broad
employees
386.
future
The
rule
or
questions
and
Court
specifically
series
in
of
this
instead ruled only on the facts in front of it.
corporate
rules
area"
Id.
to
and
Second,
the factual similarities between the situation in Upjohn and the
one
presented
here
are
not
as
complete
as
Reckitt
seems
to
think.
It appears from the Supreme Court's opinion in Upjohn that
corporate counsel was enlisted by the corporation to investigate
whether any improper payments were made in order to determine
whether
the
authorities.
company
needed
I^ at
to
386-87
file
a
notice
(Stating that
a
with
the
proper
letter sent by
Upjohn referenced "possibly illegal" payments and indicated that
the
General
determining
Counsel's
the
nature
investigation
was
"for
the
purpose
and magnitude of any payments by
of
the
Upjohn Company or any of its subsidiaries to any employee or
14
official
of
eventually
a
foreign
submitted
investigation,
government.")
to
the
SEC
Although
as
a
a
report
was
of
this
result
the investigation in Upj ohn was not undertaken
for the purpose of submitting a public report.
investigation
was
conducted,
Upjohn
Rather, when the
"was
only
considering
publication" rather than seeking counsel's help in preparing it.
In re Grand Jury Proceedings, 22 F.3d at 354.
That fact pattern
is not the case presented by this record.
In conclusion,
in the Fourth Circuit,
the attorney-client
privilege with respect to confidential communications does not
apply to published documents and the underlying details and data
if, at the time the communication was made, the client intended
that the document was to be made public.
attorney
has
demonstrate
been
the
authorized
client's
to
intent
Therefore,
perform
to
have
"when the
services
his
that
communications
published...the client losets] the right to assert the privilege
as to the subject matter of those communications." United States
V.
(Under Seal), 748 F.2d at 876.
It
is
important
to
note,
however,
that
the
intended
publication of a communication does not eviscerate the privilege
for
all
of the material produced
publication.
contain
Rather,
client
published data,
for,
or
in connection with,
"if any of the non-privileged documents
communications
not
those communications,
15
directly
related
to
the
if otherwise privileged,
must be removed by the reviewing court before the document may
be produced."
n.7.
In
privileged
United States v.
other
in
words,
their
(Under Seal), 74 8 F.2d at 875,
although
entirety,
some
documents
other
may
documents,
not
such
be
as
attorney's notes, communications between the attorney and client
containing
relevant
data,
and
other
documents
which
might
contain "details underlying the data" might well be privileged.
That determination would require an individualized inspection of
the
documents
to
ensure
that
only
non-privileged
content
is
disclosed.
II.
In Camera Review
"[C]ourts are generally thought to have broad discretion to
determine whether a privilege is properly asserted."
Election Com'n v. Christian Coalition,
Va.
1998).
in
camera
disputed.
This determination can,
inspection
of
the
178 F.R.D.
456,
and often does,
documents
whose
Federal
461
(E.D.
involve an
privilege
is
Although the Supreme Court has restricted the ability
of district courts to conduct an in camera review of documents
that might fall under the crime fraud exception^ there is no
^See United States v. Zolin, 491 U.S. 554
(1989).
Zolin holds in
part that, "before engaging in in camera review to determine the
applicability of the crime-fraud exception, the judge should
require a showing of a factual basis adequate to support a good
faith belief by a reasonable person... that in camera review of
the materials may reveal evidence to establish the clam that the
crime-fraud exception applies.
Once that showing in made, the
16
such
restriction
for
client privilege.
("While it
other
types
of
challenges
to
attorney-
See Christian Coalition, 178 F.R.D. at 462
is necessary for
a party to make a prima
facie
showing of fraud before a court will review attorney client
documents under the crime fraud exception, there is no basis for
such
a
showing
under
ordinary
circumstances.
Additionally,
there is no indication that the Supreme Court intended for its
holding in Zolin to apply to a
Grand
Jury
Proceedings,
Term,
1991, 33 F.3d 342,
[non-analogous case].");
Thursday Special
350
{4th Cir.
Grand
Jury
1994)
In re
September
("Zolin did not
provide a general rule applicable to all in camera reviews of
any material submitted by parties...Zolin does not proscribe all
in camera reviews of in camera submissions absent the requisite
showing.").
Deciding whether
documents
at
issue
to
is
conduct
thus
within
an
in
the
camera
purview
review
of
this
of
the
Court.
The parties are at odds as to whether in camera review would be
helpful at this time.
that
in
camera
master is
The FTC argues that it "does not believe
review
of
necessary at
the
this
22,327
documents
time... [because]
by
a
special
having a
special
master review all of the documents now when many of them likely
do
not
involve
a
true
factual
dispute
would
be
unnecessarily
decision whether to engage in in camera review rests with the
district court."
Id.
at 573
(internal citations and quotations
omitted).
17
expensive
and
Instead,
time-consuming."
the
FTC
requests
Docket
that
the
No.
38
Court
at
issue
10-11.''
an
order
"requiring Reckitt to produce to the FTC the types of documents
[that
the
court's
privileged."
documents,
Id.
information
the
documents
on
resolve
11.
its
are
Finally,
proposal,
at
opinion
If Reckitt
describes
continues
as
not
to withhold any
the FTC requests that Reckitt be required to "provide
new
Id.
forthcoming]
privileged
any
log
on
a
sufficient
light
of
to explain why
the
Court's
would,
disputes
special master
conflicts
by-category basis."
in
remaining
be sent to a
those
privilege
in
for
in camera
document-by-document
ruling."
the
FTC's
review "to
or
category-
Id.
Reckitt has suggested "that the Court might benefit from in
camera
review
conjunction
FTC's
of
with
demand
privilege
is
"Reckitt's
document
[the
for
from
FTC's]
a
proposal
rejection
and
individualized
that
No.
to
39
selected
by
of
contemplated
at
resolve
17.
the
Reckitt
The
issue
22,000 documents on the basis of ^
document
privilege
opposition...[to
communication
Docket
Reckitt's
blanket
improper,
attorney-client
necessary."
a
by
FTC
show]
log
that
review
the
of
Court
responds
of privilege
is
the
attorney-client
each
is
that
for
camera review of a
itself
in
over
single
unprecedented
and
'' The number of documents sometimes is said to be 28, 000 and at
other times 22,000.
issue
is
In either event,
voluminous.
18
the number of documents at
fundamentally unfair."
misunderstand
Docket No.
Reckitt's
40 at 11.
proposal.
The FTC appears to
Although
Reckitt
initially
suggests that the Court review only one document of Reckitt's
choosing,
it does so in an attempt to convince the court that
further individualized,
does
not,
blanket
as
the
ruling
camera review would be necessary.
FTC
suggests,
for all 22,327
invite
the
Court
to
It
make
a
documents based on one document
analysis.
In camera review is appropriate and necessary in this case.
The
applicable
exception
to
the
attorney-client
privilege
has
limits to its reach and only encompasses published documents and
the
underlying
Without an ^
is
not
documents
(as
more
fully
described
above).
camera review of the actual documents at issue, it
possible
for
the
Court
Circuit's
attorney-client
limitations
that
are
correctly
privilege
inherent
in
that
to
apply
law,
body
the
Fourth
including
of
law.
the
Thus,
a
special master will be appointed to determine the most efficient
way
to
review
the
documents
or
categories
of
documents;
to
devise a system to determine what documents fall within the rule
that
excludes
controlling
Fourth
production of
the
documents
privilege;
them
from
privilege
Circuit
such documents
as
and to
to
which
report
to
as
decisions;
for
there
to
set
camera
remains
the Court
19
outlined
as
herein
a
schedule
review;
any
and
in
for
to examine
dispute
as
to
to whether attorney-
client
privilege
extends
to
said
documents.
To
that
end,
Reckitt will be required to identify and produce all documents
that, based on this decision, do not require further review for
privilege.
That must be done by April 1, 2015.
The Court previously has provided to counsel the names of
three candidates to serve as Special Master and has given the
parties some information about the candidates.
2015, counsel shall advise whether, and why,
By March 15,
there is objection
to any candidate and shall state their respective preferences in
order.
If
any
party
desires
serve as Special Master,
to
suggest
other
candidates
it shall do so by March 15,
to
2015 and
shall provide each candidate's experience and qualifications.
Reckitt,
as
the party claiming privilege,
initially shall
bear the fees and expenses incurred by the Special Master.
Court,
however,
The
reserves the right to reallocate that burden as
a cost of the litigation upon appropriately supported motion.
The
PETITION
ENFORCING
argued.
CIVIL
OF
THE
INVESTIGATIVE
TRADE
DEMAND
COMMISSION
(Docket
No.
FOR
AN
ORDER
2)
has
been
That motion will be granted to the extent that Reckitt
identifies
require
^
abeyance
documents
camera
pending
that,
review.
report
(Docket No.
38),
based
on
this
Otherwise,
of
FEDERAL TRADE COMMISSION'S
DEMAND
FEDERAL
the
Special
decision,
decision
will
Master.
As
do
be
to
not
in
the
MOTION TO ENFORCE CIVIL INVESTIGATIVE
there is no need for argument.
20
For the
reasons
set
forth above,
that motion
(Docket No.
38)
will be
denied.
It
is
so ORDERED.
Ill
Robert E. Payne
Senior United States District Judge
Richmond, Virginia
Date;
March
^ , 2015
21
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