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Judge Andrews resolves privilege dispute over foreign in-house counsel documents

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In a recent Order, Judge Richard G. Andrews granted disclosure of four documents of defendants’ “Indian ‘in-house counsel’ or subordinates of ‘in-house counsel’” after determining that the attorney-client privilege did not protect those documents. Reckitt Benckiser Pharmaceuticals v. Dr. Reddy’s Laboratories SA, C.A. No. 14-1451-RGA (D. Del. Nov. 4, 2016).

As Judge Andrews explained, the “dispositive issue is whether under U.S. privilege law, the three Indian in-house employees constitute ‘a member of the bar of a court, or his subordinate.’” Id. at 3. To resolve this issue, Judge Andrews relied on the opinion of Retired Justice Srikrishna, who previously “opined on the role of Indian in-house counsel in the context of the Indian legal system and whose opinion was requested by Circuit Judge Jordan.” Id. (citing Shire Dev. Inc. v. Cadila Healthcare Ltd., C.A. No. 10-581-KAJ (D.I. 209) (D. Del. June 28, 2012)). Judge Andrews explained:

According to Retired Justice Srikrishna’s opinion, there is “only one class of legal practitioners known as advocates” in India. Only advocates are “entitled to practice the profession of law.” Advocates have the “right to practice throughout the territories of India in all courts, before any tribunal or person legally authorized to take evidence or before any other authority . . . .” Generally, only advocates are “entitled to practice in any court or before any authority or person . . . .” “[I]n-house counsel would not come within the definition of ‘advocate.’” “[A] person who is in full time employment of an employer ceases to be an advocate.”

Id. at 3-4 (citations omitted). Judge Andrews thus concluded that under a “Honeywell-type approach . . . Indian in-house counsel are not ‘member[s] of the bar of a court’ for purposes of U.S. privilege law.” Id. at 4; see also Honeywell, Inc. v. Minolta Camera Co., 1990 WL 66182 (D.N.J. May 15, 1990). Judge Andrews noted that there was “no evidence to suggest that the authors [of the documents at issue] have a role outside of in-house counsel for a company.” Id. Judge Andrews found insufficient defendants’ assertion that “each author has an LL.B. or ‘reports directly to someone who has completed an LL.B.’” Id. Judge Andrews explained that “[j]ust as U.S. law school graduates are not necessarily accorded attorney-client privilege, Indian LL.B. graduates are not necessarily accorded attorney-client privilege until they become an ‘advocate.’” Id.

In reaching the determination that the attorney-client privilege did not apply, Judge Andrews declined to follow the functional approach to assessing privilege as set forth in Renfield Corp. v. E. Remy Martin & Co., S.A., 98 F.R.D. 442 (D. Del. 1982), which looks to whether an “individual is competent to render legal advice and is permitted by law to do so.” Id. at 3-4. Judge Andrews explained that such an approach “appears to unnecessarily broaden what is protected by the attorney-client privilege.” Id. at 4.

Reckitt Benckiser Pharmaceuticals v. Dr. Reddy’s Laboratories SA, C.A. No. 14-1451-RGA (D. Del. Nov. 4, 2016).

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