EDPA Holds that Antitrust Compliance Policy is Not Protected by Attorney-client Privilege | Practical Law

EDPA Holds that Antitrust Compliance Policy is Not Protected by Attorney-client Privilege | Practical Law

The US District Court for the Eastern District of Pennsylvania held that because CertainTeed Gypsum, Inc.'s company antitrust compliance policy was widely circulated throughout the organization and was essentially a non-legal business policy, it was not protected by attorney-client privilege.

EDPA Holds that Antitrust Compliance Policy is Not Protected by Attorney-client Privilege

by Practical Law Antitrust
Published on 16 Oct 2014 • USA (National/Federal)
The US District Court for the Eastern District of Pennsylvania held that because CertainTeed Gypsum, Inc.'s company antitrust compliance policy was widely circulated throughout the organization and was essentially a non-legal business policy, it was not protected by attorney-client privilege.
On October 9, 2014, Judge Michael M. Baylson of the US District Court for the Eastern District of Pennsylvania held in In re Domestic Drywall Antitrust Litigation that defendant CertainTeed Gypsum, Inc.'s company antitrust compliance policy was not protected by attorney-client privilege and granted plaintiffs' motion to compel production of the policy ( (E.D. Pa. Oct. 9, 2014)). Judge Baylson explained that the policy is not considered privileged because the policy:
  • Was distributed to more than 120 of the company's employees and is posted on its internal website.
  • Does not contain any specific legal advice.
  • Is essentially a non-legal business policy.
He further noted that no court has found a corporate policy of lawfulness to be privileged during discovery.
Judge Baylson noted that the US Court of Appeals for the Third Circuit narrowly construes attorney-client privilege. Therefore, only those documents containing legal advice that lead to a decision by the client are covered by attorney-client privilege.
Judge Baylson's decision is in line with a 2006 decision from the US District Court for the Northern District of Illinois, In re Sulfuric Acid Antitrust Litig., 235 F.R.D. 407 (N.D. Ill. 2006). In Sulfuric Acid, the court noted that antitrust compliance policies may be outside the scope of privilege because they are simply a compilation of rules.