December 02, 2015

ABA asks high court to take up case on the parameters of the work product doctrine

CHICAGO, Dec. 2, 2015 — The American Bar Association filed an amicus brief with the U.S. Supreme Court Wednesday, urging the justices to review a decision by a federal appeals court that erodes an attorney’s right to maintain confidentiality of attorney work product in a case brought by a governmental agency.

Since 2009, the Federal Trade Commission has sought documents from drugmaker Boehringer Ingelheim Pharmaceuticals Inc. in an antitrust investigation related to its stroke-prevention drug Aggrenox. The case, involving documents analyzing the impact of Boehringer’s patent settlement with a generic drug manufacturer, tests how broadly a company can define attorney work product in the context of “opinion” work product as opposed to “fact” work product, which carries a lesser standard of confidentiality. The case also focuses on the standard for demonstrating a “substantial need” to materials protected under the work product doctrine.

In its amicus brief, the ABA argued that the decision by the U.S. Court of Appeals for the D.C. Circuit forcing the drug company to surrender the documents conflicts with the association’s strong support of the preservation of the work product doctrine, which is reflected in the ABA’s Model Rules of Professional Conduct and in ABA policy statements. In addition, the brief contends the D.C. Circuit’s ruling is in conflict with the decisions of five other federal circuits.

In its argument, the ABA noted that legal advice and representation in only the rarest of occasions are limited to “the law,” and in taking the case the Supreme Court can “ensure that lawyers understand what analysis they can undertake or request to be undertaken by others without fear that the results will be discoverable depending on the jurisdiction.”

“The work product doctrine is essential to allowing lawyers to analyze and weigh the many competing considerations at play when providing legal advice,” the ABA brief said.

“In rendering advice, a lawyer might refer not only to the law but to other considerations such as moral, economic, social and political factors that may be relevant to the client’s situation,” the brief continued.

The ABA's amicus brief for Boehringer Ingelheim Pharmaceuticals, Inc. v Federal Trade Commission is available here.

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