Federal Trade Commission v. Indivior, Inc., No. 3:2014mc00005 - Document 104 (E.D. Va. 2016)
Court Description: MEMORANDUM OPINION. See Opinion for details. Signed by District Judge Robert E. Payne on 08/01/2016. (ccol, )
Download PDF
<![CDATA[
Federal Trade Commission v. Indivior, Inc. Doc. 104 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division FEDERAL TRADE COMMISSION, Petitioner, V. Misc. INDIVIOR, No. 3:14mc5 INC., Respondent. MEMORANDUM OPINION This matter is before the Court on the REPORT AND RECOMMENDATIONS OF SPECIAL MASTER the SUPPLEMENT SPECIAL MASTER "Special SECOND (Docket Master's FEDERAL TRADE RECOMMENDATION ("MOTION INTERIM No. COMMISISON'S OR, INC.'S INTERIM SUPPLEMENT 73) Report"). IN THE TO ADOPT/PRODUCE") INDIVIOR, SECOND TO CORRECTED REPORT THERETO AND REPORT MOTION AND before TO ADOPT ALTERNATIVE, (Docket No. OBJECTIONS TO 74) (Docket No. 83) 71) RECOMMENDATIONS referred the Court SPECIAL ORDER and the AS to is and OF as the MASTER'S PRODUCTION RESPONDENT TO THE SPECIAL RECOMMENDATIONS, INTERIM (Docket No. (collectively Also SECOND WELL MASTER'S AS ("OBJECTIONS THE AND RECOMMENDATION"). Dockets.Justia.com BACKGROUND The Federal Trade Investigative Demand Pharmaceuticals, Inc. Commission (''FTC") ("CID") to ("Reckitt"). an ORDER entered Indivior, of Inc. During the on May 23, 2016 Benckiser course Inc. Civil of and, (Docket these pursuant No. 100), was substituted as the party respondent in place Reckitt. briefing herein a Reckitt proceedings Reckitt was acquired by Indivior, to issued However, herein because refer to the the documents respondent and as most of Reckitt, the that appellation will be retained. Pursuant Reckitt had to the engaged CID, in the unfair respect to its branded drug, TRADE DEMAND COMMISSION (Docket FOR No. AN 2) FTC methods Suboxone. ORDER ("FTC sought of determine whether competition with PETITION OF THE FEDERAL ENFORCING Initial to CIVIL Petition"). INVESTIGATIVE The conduct under investigation was particularized as follows: 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 addiction treatment distributed through prescription, rather than by clinicbased methods. FTC Initial produced Petition, almost p. 600,000 1. In response documents, but to the withheld CID, Reckitt approximately 24,000 documents on the ground of attorney-client privilege.^ The FTC took the view that certain types of documents were not privileged and sought production of those documents. IN SUPPORT ORDER OF ENFORCING 24). The Fourth OF THE therein Reckitt documents FEDERAL INVESTIGATIVE contended Circuit, documents Fourth CIVIL FTC privileged, the PETITION were COMMISSION (Docket under improperly not sought Circuit DEMAND that, was that TRADE by the FTC that, "if a client at fell MEMORANDUM the FOR Nos. 23 and law of the withholding, all privileged within the communicates AN as because rule of the information to his attorney with the understanding that the information will be revealed to underlying others, the data the privilege." (4th Cir. 871, 875 information, which was to United States v. 1994) be as took well as published' Under Seal, (quoting United States v. (4th Cir. Reckitt that ^the will 33 details not enjoy F.3d 342, Under Seal, 748 354 F,2d 1984). the view that decisions of other circuits counsel a different result and that the cases relied upon by the FTC have decision been in overruled, In re: sub silento, Grand Jury Subpoena, by the 341 Fourth F.3d 331 Circuit's (4th Cir. 2003). ^ At the early stages of this litigation, the number of privileged documents was asserted to be approximately 20,000, but subsequently the number has been reduced to approximately 24,000. By Memorandum Opinion issued on March 10, 42) by (^^March 10 Opinion"), Reckitt applied and in the (1) 2015 (Docket No. the Court rejected the arguments made held that production the rules of documents of privilege herein would be to as be set forth under appropriate law of the Fourth Circuit; (2) Reckitt to identify and produce all documents that, by virtue of the rulings review by in a the Memorandum Special Master; Master would review the with appropriate 43) . the Opinion, and (3) required ordered remaining documents Fourth Circuit decisions. in required no further a Special that camera in accord (ORDER, Docket No. After affording the parties an opportunity for input into selection review of of the a Special remaining appointed a Special Master was with tasked documents make a as Master the to accomplish privileged (Docket No. responsibility required by the the documents, 48) . document the The Special Master to review the law of Court the privileged Fourth Circuit and to Report and Recommendation respecting the results of that review. After evidentiary documents, reflecting documents. consulting hearing, fully and with receiving the parties, briefing and holding an reviewing the the Special Master issued the Special Master's Report the results of Those documents the were in camera review selected by Reckitt, instruction of the Special Master, as documents of 3,704 upon the related to the preparation of the are conununications follow certain up public citizen's relations petition and other between documents Reckitt and concerning petition and the withdrawal of Suboxone tablets and documents the relating manufacturers to of the negotiations generic documents competing the the FDA and citizen's from the market between drugs that to Reckitt and establish a Joint Risk Evaluation and Mitigation Strategy (the "shared REMS" documents) for the 1,695 documents. Those documents were selected to be reviewed first by the Special Master because they are the focus of the FTC's Initial Petition. The Special Master made rulings on the privilege claims of the 3,704 documents and those recommendations are set out in the Second Master's Report Special Master's Report particular note and its attachments. contained certain respecting the nature privilege log prepared by Reckitt. First, source findings and If privilege log documents is with that reliability They are: the privilege log is not a of evidence describing the documents. Further, the reliable withheld condition regard similar to to the of the remaining that for the documents reviewed in this report, i t is foreseeable that the review process will be time consuming and costly, an outcome the parties presumably wish to avoid. Second, of the presence of a ^outliers' topics did purportedly ^Citizen's folders that is Petition' troublesome. significant number not relate captured and The in ^Shared to the the REMS' overinclusion are of the of the of documents 'Shared in REMS' the ^Citizen's electronic Petition' folders and invites the obvious question: was there equallysignificant under-inclusion? This issue must be addressed prior to the review of additional documents. Third, many documents fail to evidence any privileged communications; some contain substantial non-privileged material along with privileged communications. If the nonprivileged portion of the first tranche of 3,704 documents is representative of the remaining documents populating the privilege log, then a significant number of documents continues to be withheld without any basis. In addition, the Special Master made a certain documents (Appendix 1) with redactions or listed that without in Appendix the parties directed; the review Special Master's required to redactions as indicated; withheld items from on that the production Appendix 3 to and documents the FTC; report as to Report. After the parties complied with the Special Master recommended that Reckitt be produce certain parties be be produced to the FTC by Reckitt and that the parties identify any clerical errors in the instructions, made 2 recommendation that the all extent clerical respecting the documents listed indicated. corrections request The on Special following for Appendix the 3 with Master also advices identification of of the clerical errors. Thereafter, the FTC filed its MOTION TO ADOPT/PRODUCE wherein the FTC agreed with the Special Master's recommendations and argued for Alternatively, adoption the of the Special Master's Report. FTC urged that Reckitt should be ordered to produce all the requested documents because the Special Master's Report established that the privilege log does not sufficiently support the claims of privilege. Reckitt filed Nos.78 and 83) ADOPT/PRODUCE its OBJECTIONS AND RECOMMENDATIONS (Docket as well as its opposition to the FTC's MOTION TO (Docket No. 87) . In particular, Reckitt advised that it was "willing to accept the Special Master's report and recommendations Second 2. to as to Interim Report Also, the 3,704 documents and Recommendations" Reckitt advised that it was preserve its Special Master assertion that the addressed (Docket in 83), No. the p. filing objections merely legal test applied (pursuant to the decision of the Court) by the was not the proper test to be applied. Reckitt also made a suggestion for further proceedings. begin, Reckitt advised that, in Step 1, remaining documents in . the 19,000 recommendation believes the . . Special using Master light same would To it would "categorize the of the Special standards apply with that any Master's [Reckitt] redactions intended to be consistent with the redactions recommended by the Special Master with respect to the initial documents." Reckitt advised that it had begun this process, and that the process was expected to be completed in approximately 45 days. Next, would Reckitt proposed that, review documents legal in rule [Reckitt] course Reckitt's order as the estimates to the Thirdly, to in Step 3, "proposed confirm Special would Special in Step 2, treatment that Master take it of these accords would another Master's the Special Master to apply two the it, a months, 19,000 Court's process subject availability during that the Special Master would issue a of time." Report and Recommendation as to the remaining 19,000 documents. In that support of these recommendations, Reckitt represented it: expects that it will be position after the Special recommendations on the in a similar Master issues second set of documents as [Reckitt] is now with respect to the first set, i.e. that [Reckitt] disagrees with the legal rule underlying the Special Master's recommendations but will not dispute the recommendations. If [Reckitt's] expectation is correct, i t would therefore not object to the Special Master's second also the set of withdraw first recommendations the set of present and it objections documents that are would as to filed for preservation purposes, (Docket No. 83, p. 11) (emphasis added). the objections articulated by Reckitt, The FTC disagreed with but did not object to the Reckitt proposal for reviewing the remaining documents. The Court determined to allow Reckitt to proceed as proposed in Step 1 while the Court reviewed the FTC's MOTION TO ADOPT/PRODUCE and considered the 8 FTC's alternative request for relief. On June 22, 2016, counsel for Reckitt advised that Step 1 of its process has been completed. DISCUSSION Resolution of Reckitt's objections to the Special Master's Report proceeds from the fundamental premise that the objection must identify with specificity that part of the Special Master's Report the to which objection objection is that is taken and must made. Only if clearly articulate those requisites are satisfied can there be meaningful review by the district court. Those fundamental precepts are of a special importance where, here, the review of Special more Master than has 3,700 conducted documents documents that must be produced, a has made findings document-by-document and has specified the many of which must be redacted in part before being produced and where, Master as respecting as the here, the individual Special documents that are the subject of the Special Master's Report. In Reckitt reality, Reckitt challenges the has made legal but standard two applied Master in making the privileged review. challenge is simply a re-argument previously advanced by Reckitt Court) objections. by However, of the First, the Special in fact, legal that position {and previously rejected by the respecting the applicable law that controls the issues of privilege presented here as those principles were set forth fully in the March 10 Opinion. A review of the Special Master's Report reflects that the Special Master faithfully and carefully applied the conducting objection charter principles the to set the fact in of review forth these some that required him to the do is the March 3,700 Special 10 documents. Master simply a Opinion way of did in An what his re-arguing the matters as to which Reckitt did not prevail in the motion that was resolved by the March 10 Opinion and its implementing Order. Second, Reckitt raised SM_03676 and SM_00156. objections Reckitt says to that two documents: these documents "representative examples" of the point that i t makes. where, as here, many of which have some redactions, objections cannot be presented by exemplar. be presented Special having Master failed However, the Special Master has made individual findings as to individual documents, must are specifically as to to do each to the document that, has waived Instead, judgments objections made individually. all by the Reckitt, objections to the judgments made by the Special Master except as to SM_03676 and SM_00156. And, Special intent To those objections, we now turn. as Master to 83, p. those 8) . documents, erred because publish, communicated, No. to as rather As to these than the he FTC the Reckitt based the documents, objects determination based on communication the itself." correctly explained, 10 that of the an "facts (Docket both documents involved email Petition, and Applying the recommended and, strings, the test that other relating related to to the the documents be the produced in sets Citizen negotiation. Special Master redacted form, allowed some messages in the string to remain withheld while requiring disclosure of others. correctly 2012 REMS established by the Court, both in so doing, one forth the rule that the Further, the FTC confidentiality of attorney-client communications as respecting drafts of documents that are published does not depend on the subjective intent of the client with respect to each isolated communication. Rather, the to question is whether the communication relates the preparation of a document that the client in fact does intend to publish, Seal, as shown by 748 F.2d 871, the 875 record. (4th Cir. See 1984). United States v. Under The appropriate manner for testing that question "must look to the services which the attorney has been employed to provide and to determine if those services would reasonably be expected to entail the publication of the client's communications." Id. As to both documents, SM_003676 and SM_00156, the record is clear beyond question that the services rendered by the two law firms involved and negotiating the REMS (preparing and with matters) filing the 2012 Citizen Petition Reckitt's would generic reasonably be competitors expected publication of the client's communications. 11 to In fact, respecting entail the the record indicates that Reckitt agreed with that proposition at the May 8, 2015 evidentiary hearing (Docket No. Reckitt's argument overlooks 63 at 26-27, 34, 36). two other essential points. First, it ignores the settled principle in this circuit that an intent to disclose the data" therein. and n. 7. Master Thus, erred a document includes United States v. the "details Under Seal, underlying 748 F.2d at 875 the contention made by Reckitt that the Special in looking for an intent to publish the facts communicated rather than the intent to publish the communication itself is occurs, of error. is it nature in impermissible the Secondly, to attorneys' where attempt publication to re-characterize In re the Grand Jury Proceedings, Thursday's Special Grand Jury September Term, 1991, 33 F.3d 342, 355 (4th Cir. services. actually 1994). In sum, the specific objections made by Reckitt are without merit and are overruled. Special Accordingly, his and having Master's Report and recommendation Special Master's Report will be adopted reviewed the in and all detail, objections the by Reckitt will be overruled. That said, production outstanding and what and remaining for identified there to waiting remains do about review resolution is difficulties the and question the by the 19, 000 the when Master. contention of the in to documents Special inadequacies 12 of the order that are Also, FTC that the privilege log constitute Reckitt. a waiver as to all privileged claims by Those questions will be resolved as set forth below. Having reviewed the MOTION OBJECTIONS AND RECOMMENDATIONS, TO ADOPT/PRODUCE as well Report, the Court is of the view that, as suggested by Reckitt, has been and the the Special Master's to some extent, suggestion for further proceedings have merit. as advanced Reckitt's To begin. completed. Step 1 Therefore, the parties shall proceed forthwith to communicate with the Special Master as to how, Reckitt's to if at all, recommendations. suggest another to proceed with Steps The approach decide event, to expand or and 3 of Special Master may well that may reviewing the other 19,000 documents. may 2 limit ease And, further that process shall proceed with a the desire burden of the Special Master proceedings. In any view to concluding the Special Master's assignment as promptly as possible. Further, overruled having Reckitt's appropriate documents that Report, to the concern that to on the documents. assert, now must be Special so could the later, the now produced directed privilege However, or to extent do the objections, Reckitt required position adopted issue FTC that has by Special to the the Reckitt as the represented production, 13 it to construed as and considers Court Report produce therein. be Master's as a has FTC Master's expressed waiver remaining that the it required of its 19,000 will not by the special Master's privilege as Report respects constitutes a waiver of any claim of the remaining 19,000 documents. That agreement will be reflected in an Order to be entered herein, and, the FTC will be required not to disclose those documents to any person or entity (other than the FTC s lawyers or the staff working on the CID) without further order from this Court. Finally, the Court will continue to assess the validity of the alternative ADOPT/PRODUCE. Master argument made by the FTC in its MOTION TO To that end, the Court requests that the Special supplement the Special Master's Report describing the extent to which the privilege log herein is inadequate so that the Court can assess the FTC's argument that the defect in the privilege claimed much log itself therein. that the constitutes The principal descriptions in a waiver problem the log of the appears are privileges to per be se not so defective (although there appears to be many instances where that is so), but that the descriptions in the log are so at odds with the text of the documents that are being identified as to make the log a functionally useless document, thereby rendering it no log at all. A determination on that point by the Court requires some assessment from the Special Master as to the percentage of documents in the 3,704 documents already reviewed wherein the description of a document is so at odds with the document itself as to render the description in the log meaningless. 14 The Court will confer with the Special Master about a supplement conferred after the Special respecting Master further review schedule for this and of the the parties remaining have 19,000 documents. CONCLUSION For the INDIVIOR, SECOND foregoing INC.'S INTERIM reasons, CORRECTED REPORT the objections OBJECTIONS AND (Docket TO RECOMMENDATIONS, SUPPLEMENT THERETO overruled, the MOTION TO ADOPT/PRODUCE the FTC will be granted, the FTC forthwith, 73) Master, No. 83) filed and RESPONDENT SPECIAL AS by WELL Reckitt (Docket No. 74) MASTER'S AS THE will be filed by the 3,704 documents will be produced to the Special Master Report will be adopted, Special THE in (Docket Nos. 71 and the parties will forthwith confer with the the Special Master will be tasked with preparing the supplemental report respecting the FTC's alternate waiver agreement. The Clerk is directed to send a copy of this Order to the Special Master. It is so ORDERED. /s/ Robert E. Payne Senior United States District Judge Richmond, Virginia Date: August 1, 2016 15
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
