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;
District Courts within the assisted GSK on legal and regulatory tasks;
Third Circuit have applied the “functional
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
recently, the Eastern District of Pennsylvania court, however, stopped short in attaching
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
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).
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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.
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.
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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