Judge Andrews Grants Motion to Compel Discovery

December 15, 2016

Publication| Intellectual Property

In Reckitt Benckiser Pharmaceuticals Inc. et al. v. Teva Pharmaceuticals USA, Inc., C.A. No. 14-1451-RGA (Nov. 4, 2016), Judge Andrews granted the plaintiffs’ motion to compel discovery of four documents. The documents were authored by three individuals who were either Indian in-house counsel or reported to in-house counsel. The defendants argued that the documents were protected by attorney-client privilege. The parties agreed that U.S. privilege law applied.

The Court considered persuasive the opinion of retired Justice Srikrishna, whose opinion had been requested by Circuit Judge Jordan in a different litigation. Retired Justice Srikrishna opined that, in India, only advocates are authorized to practice law and that in-house counsel do not fall under the definition of advocate.

Following the approach taken by the Court in Honeywell, Inc. v. Minolta Camera Co., 1990 WL 66182, at *2 (D.N.J. May 15, 1990), Judge Andrews concluded that Indian in-house counsel were not “members of the bar of a court” for purposes of U.S. privilege law. Without evidence showing that the authors had a role outside of in-house counsel for a company or were advocates or subordinates of advocates, Judge Andrews concluded that the defendants failed to establish that the attorney-client privilege applied to the communications at issue.

Key Points:  The attorney-client privilege does not apply to communications authored by Indian in-house counsel absent evidence that the in-house counsel are advocates or subordinates of advocates.

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