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Preserving the Attorney-Client Privilege

By Scott L. Vernick And Joshua Horn
October 07, 2003

Within the context of corporations and other commercial entities, maintaining and preserving the protections afforded by the attorney-client privilege and work-product doctrine require special precautions. If access to information and materials otherwise protected from disclosure is provided to individuals other than those who 'need to know,' then a corporate client may inadvertently waive the protections offered by the attorney-client privilege and work-product doctrine. The U.S. Court of Appeals for the District of Columbia explored these issues in Federal Trade Commission v. GlaxoSmithKline, 294 F.3d 141 (D.C. Cir. 2002).

In Glaxo, the FTC issued a subpoena to GlaxoSmithKline (GSK) during the course of its investigation into whether GSK listed its patents properly in the FDA compilation of Approved Drug Products with Therapeutic Evaluations. The FTC sought two categories of documents:

  • Documents concerning the medication known as Paxil that the U.S. District Court for the Northern District of Illinois had ordered to be disclosed in separate litigation.
  • Information regarding the manufacturing and marketing of Paxil.


Although GSK and the FTC reached an agreement regarding the documents that would be produced, including a process for resolving any disputes, GSK withheld certain documents on the grounds that they were protected from disclosure by the attorney-client privilege and work-product doctrine.


The FTC argued that GSK forfeited its right to assert any privilege or work-product immunity because GSK had widely disseminated all the documents within GSK, as well as to consultants and other third parties. The FTC also contended that the production of certain documents in the Illinois litigation effectively estopped GSK from withholding the same documents in response to the FTC's subpoena. The FTC further maintained that the attorney-client privilege was inapplicable because the information at issue was not
confidential.

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