Abbott Laboratories

United States Court of Appeals for the Third Circuit · 2024 · Federal Courts

Federal CourtsMandamusAttorney-Client PrivilegeCrime-Fraud ExceptionmandamusAll Writs Actattorney-client privilegecrime-fraud exception

Facts

Petitioners owned the now-expired '894 patent covering AndroGel 1% and sued Perrigo after Perrigo sought FDA approval for a generic formulation. Prior FTC litigation resulted in findings, left undisturbed on appeal, that the Perrigo suit was objectively baseless and brought in bad faith to impose expense and delay. In the later King antitrust litigation, respondents moved to compel privileged in-house counsel documents, arguing that communications about filing the Perrigo suit furthered sham litigation. After in camera review, the district court ordered production of nineteen documents under the crime-fraud exception, and petitioners sought mandamus.

Issue

Whether the petitioners were entitled to mandamus relief from district court orders compelling production of allegedly privileged documents under the crime-fraud exception. More specifically, the court considered whether petitioners showed a clear and indisputable error, no adequate alternative remedy, and likely irreparable injury.

Rule

Mandamus is an extreme remedy available only when the petitioner shows (1) a clear and indisputable abuse of discretion or error of law, (2) no adequate alternative avenue for relief, and (3) a likelihood of irreparable injury. In the Third Circuit, the crime-fraud exception applies when the client misuses or intends to misuse attorney advice in furtherance of an improper purpose; reliance is not required, and sham litigation may qualify as the relevant fraud or wrongdoing.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In antitrust litigation in the District of New Jersey, a judge orders Redwood Biologics to produce 14 emails between its in-house lawyers after finding the emails furthered a sham patent suit against a rival in Cleveland, Ohio. Redwood petitions for mandamus, arguing the judge adopted a novel rule because no binding Third Circuit case had previously held that sham litigation can trigger the crime-fraud exception.

How should the court of appeals most likely rule on the petition?

Explanation. Mandamus is an extraordinary remedy requiring a clear and indisputable abuse of discretion or error of law, no adequate alternative remedy, and likely irreparable injury. The majority held that where no binding precedent squarely rejected the district court's conclusion that sham litigation may qualify as the wrongdoing supporting the crime-fraud exception, the petitioner could not show a clear and indisputable error. A first-impression issue alone does not make mandamus appropriate. (Derived from Abbott Laboratories (n.d.).)