For the first time within the Third Circuit, a court has added to the handful of decisions holding that the attorney-client privilege does not shield an antitrust compliance policy from disclosure in antitrust litigation. In In re: Domestic Drywall Antitrust Litigation, Judge Michael M. Baylson of the Eastern District of Pennsylvania ordered the production of defendant CertainTeed Gypsum, Inc.’s antitrust compliance policy, finding the policy’s wording did not constitute specific legal advice that would warrant such protection and that it was too widely distributed.

CertainTeed had argued that the policy was shielded by the attorney-client privilege because it met the four required elements:

  • It was a communication.
  • It was between privileged persons, i.e., the company’s lawyers and staff.
  • It was maintained in confidence, because it was never distributed outside the company.
  • It was created for the purpose of providing legal advice.

Because the issue was one of first impression in the Third Circuit, Judge Baylson looked outside the Circuit, primarily to a Northern District of Illinois case, In re Sulfuric Acid Antitrust Litig., finding an antitrust compliance manual was not privileged because it “did not reveal client confidences, only articulated the company’s policies, and provided an overview of antitrust law in various jurisdictions.” The court chose not to follow another case from the Northern District of Illinois, In re Brand Name Prescription Drugs Antitrust Litig., that protected from disclosure a presentation prepared by an attorney and given to executives because it “provide[d] legal advice and reveal[ed] client confidences.” The court also found that the “substantially broader” scope of privilege in the Third Circuit, as urged by CertainTeed, did not protect the policy.

The court construed the attorney-client privilege narrowly, stating it should “ordinarily be limited to legal advice leading to a decision by the client.” It found the policy at issue, in contrast, “is general and does not contain any specific advice.” Instead, it is “akin to a reference or instructional guide” whose “purpose is to help insure that [CertainTeed’s] employees do not violate the antitrust laws.” Further, because the policy was distributed to all executive, sales, and marketing personnel; was the subject of a training session for more than 120 employees; and was placed on the internal company Internet, the court found it was not maintained in confidence.

For more information, including assistance in drafting antitrust compliance policies, please contact Leslie E. John at 215.864.8212 or john@ballardspahr.com, Stephen J. Kastenberg at 215.864.8122 or kastenberg@ballardspahr.com, or Steven M. Nadel at 215.864.8297 or nadels@ballardspahr.com.


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