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The Third Circuit has yet to address
the standard for determining whether
Swiftwater played a crucial role on GSK’s Client the attorney-client privilege attaches to brand maturation team; was intimately
communications between a company’s
involved in the creation, development and Privilege And counsel and the company’s independent implementation of a brand maturation plan;
Independent consultant. District Courts within the assisted GSK on legal and regulatory tasks;
Third Circuit have applied the “functional Contractors: equivalent” test, but have disagreed on how work were treated as confidential and as if
broadly the test should be interpreted. Most the attorney-client privilege applied. The Conflict Within recently, the Eastern District of Pennsylvania court, however, stopped short in attaching
The Third decided the attorney-client privilege issue by the attorney-client privilege until each
applying a “broad approach” with a focus on document could be reviewed by the court to Circuit?
whether the disputed communications were see whether it was created for the purpose of made for the purpose of giving or receiving legal advice and were kept confidential. In re Flonase Antitrust Litig., Nos. 08-cv-3149, In reaching its holding, the Court in In re Flonase Antitrust Litig., rejected what it characterized as a “very narrow view of which independent consultants may qualify as the functional equivalent of employees” steroid nasal spray and the manufacturer GlaxoSmithKline PLC (“GSK”) as to and the Southern District of New York. In whether the attorney-client privilege particular, the court declined to follow four protected communications between GSK factors highlighted in In re Bristol Myers and its independent consultant Swiftwater Squibb Sec. Litig., No. 00-1990, 2003 U.S. Dist. LEXIS 26985* at 12-14 (D. N.J. 2003). Interestingly, the In re Bristol Myers Squibb Swiftwater was a “functional equivalent” Sec. Litig. court did not confine itself to an analysis of only four factors. Rather, it recognized courts consider “many factors broadly construed. The court sided with GSK, applying the “broad approach” to the 1 A later Report and Recommendation issued by the Magistrate Judge found most of the documents sought “functional equivalent” test, and found that were covered by the attorney-client privilege. In re Flonase Antitrust Litig., Nos. 08-cv-3149, 08-cv-3301, 2012 U.S. Dist. Swiftwater was a functional equivalent of LEXIS 105174 (E.D. Pa. July 26, 2012).
For more information about any of the topics covered in this issue of the Business Litigation Alert, please contact: to reach an appropriate determination,” including those four factors; that the “key” is whether an independent contractor “acts for the corporation and possesses rendering legal advice”; and, recognized that the Special Master delegated with Gerd W. Stabbert, Esq.
[email protected] the task of determining privilege did not base her decision on “any single factor.” Indeed, both courts support their respective decisions with reliance upon the contours of James P. Sasso, Esq.
[email protected] the attorney-client privilege as espoused in Upjohn Company v. United States, 449 U.S. 383 (1981).
While a dispute may exist between District Courts within the Third Circuit as to the breadth of the “functional equivalent” test, businesses can take solace in the Eastern District of Pennsylvania’s explicit broad application of the privilege to independent consultants. Nevertheless, businesses should make efforts to ensure that communications concerning legal advice fall within the parameters identified by both In re Flonase Antitrust Litig. and In re Bristol Myers Squibb Sec. Litig. Otherwise, until the Third Circuit has an opportunity to The information contained in this Client Alert is for general informational decide the issue, they run the risk that legal nor intended to constitute legal advice or a legal opinion as to any particular matter. The reader should not act on the basis of any information contained herein without consulting first with his or her legal or other professional advisor with respect to the advisability of any specific course of action and the applicable law.
The views presented herein reflect the views of the individual author(s). They do not necessarily reflect the views of Bressler, Amery & Ross, P.C. or any of its other attorneys or clients.
2012 Bressler, Amery & Ross, P.C.
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