Opinion
MDL Docket No. 1290, Misc. No. 99mc0276.
April 22, 2005
MEMORANDUM OPINION
Pending before the Court is Plaintiffs' Joint Motion to Compel or Preclude on Defendants' Advice of Counsel Defense ("Motion") [# 743]. Having carefully considered the Motion, its opposition, Plaintiffs' reply, and the entire record herein, the Court will grant the Motion.
I. Discussion
Defendants intend to introduce evidence at trial that Mylan sought advice from outside antitrust counsel regarding the legality of entering into the exclusive agreements and that counsel advised Mylan that the agreements would not violate any applicable antitrust law. The parties agree that there is no affirmative "advice of counsel" defense to antitrust liability.See Motion at 4; Opp. at 2. It is clear, however, that Defendants are seeking to use the fact that Mylan sought and obtained legal counsel regarding the agreements as a defense to the elements of willfulness and specific intent that Plaintiffs must establish to sustain their monopolization and attempted monopolization claims. Plaintiffs seek to preclude Defendants from introducing the legal opinion, or in the alternative, to compel discovery of the privileged material underlying it. Plaintiffs argue that any voluntary disclosure of privileged communications, and any evidence or argument that Defendants had a good faith basis for entering into the exclusive agreements would constitute a waiver of the attorney-client privilege. Thus, Plaintiffs contend, Defendants must elect to either waive the privilege, or refrain from entering evidence at trial regarding the legal opinion.
To be clear, the legal advice Defendants received is not in and of itself necessarily privileged. In the D.C. Circuit, the attorney-client privilege protects confidential communications made by the client to the attorney for the purpose of seeking legal advice. Tax Analysts v. IRS, 117 F.3d 607, 618 (D.C. Cir. 1997) (citing In re Sealed Case, 737 F.2d 94, 98-99 (D.C. Cir. 1984)). The lawyer's advice is privileged only to the extent that it reveals a confidential communication from the client. The fact that Mylan sought and received antitrust advice prior to entering into the agreements is not privileged, and thus there is no privilege to be waived by its disclosure.
The issue here is not one of privilege, however, but one of relevance. The evidence Defendants seek to introduce is only probative of Mylan's lack of willfulness or specific intent to monopolize if the lawyer had all of the information necessary and relevant to create an informed and reliable opinion. In other words, the fact of the advice is only probative of intent if the fact finder is also provided the privileged information underlying that advice. If Defendants choose to rely on the advisory opinion at trial, Plaintiffs, and the trier of fact, must have access to the circumstances surrounding the issuance of the advice and the formation of the opinions contained in the advice. See Comark Communications, Inc. v. Harris Corp., 156 F.3d 1182, 1191 (Fed. Cir. 1998) (holding advisory opinion "ineffective to indicate the defendant's good faith intent" unless premised upon best information known to defendant);Belmont Textile Machinery Co. v. Superba, S.A., 48 F. Supp. 2d 521, 523 (W.D.N.C. 1999) (holding defendant must either waive privilege and produce information underlying advisory opinion, or refrain from relying on attorney advice as defense to willfulness). The introduction of evidence that Mylan sought legal advice before entering into the exclusive agreements and that counsel advised Mylan that the agreements would not violate antitrust law, without any evidence placing such facts in context would be of very little probative value in this case. The danger of unfair prejudice to Plaintiffs that this evidence presents substantially outweighs its probative value. Therefore, this evidence on its own is inadmissible under Rule 403 of the Federal Rules of Civil Procedure. Defendants may present the evidence of the legal opinion at trial only if they waive their attorney-client privilege as to all the material underlying that opinion and produce that information to Plaintiffs in a timely fashion. Alternatively, Mylan may stand behind its attorney-client privilege, and the Court will preclude Defendants from entering evidence of the fact of the opinion at trial.
II. Conclusion
For the foregoing reasons, the Court will grant the Motion. Accordingly, Defendants are precluded from presenting evidence of the Elliot Disner advisory opinion at trial, unless Mylan waives its attorney-client privilege with regard to, and provides Plaintiffs with discovery of, the communications underlying that opinion. An appropriate Order will accompany this Memorandum Opinion.