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In Re Neurontin Antitrust Litigation

August 10, 2011

IN RE NEURONTIN ANTITRUST LITIGATION


The opinion of the court was delivered by: Hon. Faith S. Hochberg, U.S.D.J.

FOR PUBLICATION

Master File No. 02-1390

OPINION & ORDER

HOCHBERG, District Judge:

This matter comes before the Court upon Class Plaintiffs' Motion for Discovery Pursuant to the Crime-Fraud Exception to Attorney-Client Privilege. Plaintiffs seek in camera review of documents deemed privileged by Defendants Pfizer, Inc. and Warner-Lambert Company LLC (collectively, "Pfizer") in order to determine whether the crime-fraud exception applies. The Court has considered the written submissions of the parties and held oral argument on the motion on May 5, 2010.

BACKGROUND

Plaintiffs in the instant action directly purchased Neurontin, a brand-name version of the drug compound gabapentin anhydrous from Defendants. In their Amended Complaint, Plaintiffs allege that Pfizer engaged in an overarching anti-competitive scheme to acquire and maintain monopoly power in the market for gabapentin products in violation of Section 2 of the Sherman Act, 15 U.S.C. § 2.*fn1

Plaintiffs claim that these actions were designed to, and did, in fact, delay the entry of generic gabapentin into the market until late 2004. Plaintiffs allege that but for Pfizer's anticompetitive scheme, generic manufacturers would have entered the market at lower prices as early as 2000. As a result of this delayed entry, Plaintiffs contend that they and other direct purchasers of Neurontin were foreclosed from the opportunity of purchasing lower-priced generic versions of the drug for years, and were accordingly compelled to pay non-competitive prices for gabapentin.*fn2

DISCUSSION

The attorney-client privilege is the oldest confidential communications privilege known to the common law. United States v. Zolin, 491 U.S. 554, 562 (1989). The purpose of the privilege is to: encourage the full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice. The privilege recognizes that sound legal advice or advocacy serves public ends and that such advice or advocacy depends upon the lawyer's being fully informed by the client.

Upjohn Co. v. United States, 449 U.S. 383, 389 (1981).

"It is the purpose of the crime-fraud exception to the attorney-client privilege to assure that the seal of secrecy between lawyer and client does not extend to communications made for the purpose of getting advice for the commission of a fraud or crime." Zolin, 491 U.S. at 563 (internal quotations omitted).

Typically, application of the crime-fraud exception begins with "presentation of the factual basis for a good faith belief that the exception would apply," followed by "in camera evaluation of the material by the court," and provision of an opportunity to be heard to the party opposed to disclosure. Prudential Ins. Co. of Am. v. Massaro, 47 Fed. Appx. 618 (3d Cir. 2002) (citing Haines v. Liggett Group, Inc., 975 F.2d 81, 96-97 (3d Cir. 1992)).

"[T]he decision to engage in in camera review implicates a much more lenient standard of proof than the determination to apply the crime/fraud exception...." Haines, 975 F.2d at 96 (internal quotations omitted). In order for a court to engage in in camera review, the party seeking must show "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 claim that the crime-fraud exception applies." Id.

Once the documents are before the court for in camera review, the party invoking the crime-fraud exception must make "a prima facie showing that (1) the client was committing or intending to commit a fraud or crime and (2) the attorney-client communications were in furtherance of that alleged ...


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