Federal Trade Commission v. Vyera Pharmaceuticals, LLC

Background

The plaintiffs—the Federal Trade Commission and several states—were negotiating with the defendants over access to monitored and recorded communications of Martin Shkreli. The Federal Trade Commission had obtained those communications from the federal Bureau of Prisons. The dispute concerned whether the plaintiffs could obtain and review the documents and whether attorney-client privilege, a legal protection for confidential communications between a lawyer and client, applied.

On August 12, 2020, the plaintiffs asked the court to rule that attorney-client privilege did not apply to the documents. On August 17, Shkreli opposed that request. He argued that the Federal Trade Commission’s collection of his communications from the Bureau of Prisons violated the Privacy Act, 5 U.S.C. § 552a, and asked the court to postpone deciding the privilege issue until it determined whether the collection violated that statute. The plaintiffs filed a reply on August 19. The court also noted that the deadline for substantial completion of document discovery was August 28.

Court’s Orders

The court ordered Shkreli to provide the plaintiffs, by August 25, 2020, at 10:00 a.m., the name of any attorney who represented him and the name of that attorney’s law firm. The court further ordered the plaintiffs to make reasonable efforts to screen from review communications between Shkreli and the identified attorneys.

The court ordered that the plaintiffs may proceed with reviewing the remaining documents produced by the Bureau of Prisons. The opinion cites United States v. Meija in support of that directive. It did not expressly state a final ruling on whether attorney-client privilege applied to every document at issue.

The court rejected Shkreli’s argument that the Privacy Act prevented the Federal Trade Commission from accessing the documents. It stated that, if Shkreli believed he had a Privacy Act claim, his remedy was to file a separate lawsuit against the Bureau of Prisons. The court also rejected Shkreli’s argument under Federal Rules of Civil Procedure 26 and 45 because he had not explained its basis. Finally, the court granted the plaintiffs’ request to file Exhibit 6 to Docket No. 224 under seal.

Classification

This is a procedural order because it primarily resolves document-review, privilege-screening, statutory-access, and sealing issues rather than deciding the underlying antitrust claims. The order includes multiple distinct rulings: it ordered Shkreli to identify his attorneys, ordered screening efforts, allowed review of the remaining documents, rejected his Privacy Act argument, rejected his unexplained discovery and subpoena argument, and granted the sealing request.