Federal Trade Commission v. Vyera Pharmaceuticals, LLC
- Denise Cote
- 1:20-cv-00706
- U.S. District Court · Southern District of New York
- 3
In Federal Trade Commission v. Vyera Pharmaceuticals, Judge Cote ordered Martin Shkreli to explain why plaintiffs could not review prison-monitored lawyer communications.
Martin Shkreli’s ability to assert attorney-client privilege over communications with Kandis Kovalsky, Scott Vernick, and their respective law firms made through Bureau of Prisons-monitored telephone and email systems; the plaintiffs sought access to those communications.
What happened
In Federal Trade Commission v. Vyera Pharmaceuticals, LLC, the Federal Trade Commission and several states sought access to Martin Shkreli’s communications with two attorneys and their law firms. The communications had occurred through telephone and email systems monitored by the Bureau of Prisons.
The court explained that attorney-client privilege protects communications intended to remain confidential. It said communications made through monitored prison systems, when the prisoner knows they are monitored and recorded, are not confidential and therefore are not protected by that privilege.
Judge Denise Cote scheduled a telephone conference and ordered Shkreli to show why the plaintiffs should not be allowed to review the monitored communications with Kandis Kovalsky, Scott Vernick, and their respective law firms. The order did not state that the plaintiffs had already been authorized to conduct that review.
The detailed version
- Federal Trade Commission v. Vyera Pharmaceuticals, LLC · No. 1:20-cv-00706
- Denise Cote
- Sept. 22, 2020
Background
The plaintiffs—the Federal Trade Commission, New York, California, Ohio, Pennsylvania, Illinois, North Carolina, and Virginia—asked the court to require Martin Shkreli to provide a privilege log identifying the basis for privilege claims over communications with attorneys made through systems monitored by the Bureau of Prisons. The plaintiffs later narrowed the request to communications between Shkreli and Kandis Kovalsky of Kang Haggerty and Fetbroyt LLC, Scott Vernick of Fox Rothschild, LLP, and their respective law firms. The plaintiffs had obtained the communications through a subpoena served on the Bureau of Prisons.
Legal standard and analysis
The court stated that the attorney-client privilege covers communications intended to be, and actually, kept confidential. Relying on Second Circuit precedent, it explained that communications made through telephone or email systems monitored by prison authorities are not confidential when the prisoner knows they are monitored and recorded. The court therefore stated that Shkreli’s communications with attorneys through Bureau of Prisons-monitored systems were not protected by the attorney-client privilege.
Order
Judge Denise Cote ordered that a telephone conference be held on September 22, 2020, to allow Shkreli to show why the plaintiffs should not review all of his communications with Kovalsky, Vernick, and their respective law firms that occurred over Bureau of Prisons-monitored systems. The opinion does not state that the court entered a final order authorizing that review; it sets a conference for Shkreli to respond.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.