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SSJR Protects Attorney-Client Communications Identified By Witness During Hearing
4 May 2011
In early 2009, AstraZeneca filed for a preliminary injunction in New Jersey District Court to prevent SSJR client Apotex from launching its generic version of AstraZeneca’s Pulmicort Respules® product. During the hearing, an Apotex witness identified certain attorney communications as a reason for certain actions taken. AstraZeneca asserted this amounted to a waiver of the attorney-client privilege, and moved to compel production of the communications. SSJR opposed on the ground that the attorney-client communications were not placed “at issue” in the case because they were not being relied upon as an “essential element” of Apotex’s defense, and thus, no waiver occurred. The Court agreed, denying AstraZeneca’s motion to compel. AstraZeneca then sought reconsideration, and the Court again agreed with Apotex, declining to compel production of Apotex’s privileged documents. As a result, Apotex is able to maintain the confidentiality of its communications with its attorneys.