Appearances being entered. . . . and we are underway.
The burden is on Mr. Shkreli to establish that some may be withheld, not on privilege — but solely on the grounds of irrelevance — to the FTC’s Daraprim complaint, says Judge Cote.
Mr. Shkreli's counsel explains difficulties in communications with prisoners (yet admits there are 20,000 pieces of communication here) but he acknowledges the law. . . is clear: in the Second Circuit, these are not in any way privileged.
Counsel for the FTC says it collected the vast majority of these materials prior to COVID — in most cases, more than a year before. . . on relevance: it conducted a pre-litigation investigation, where its rights to look are very expansive. . . well beyond Fed. Rule Civ. Proc. 401 relevance.
The Judge has given each side one more day, to meet and confer, as to the universe of what would be relevant -- or lead to arguably relevant evidence -- among these 20,000 pieces of communication. Clearly excluded are personal health matters, or personal family problems discussed in them -- but to the extent that any discuss his business dealings related to Daraprim -- and specifically to the extent that he used the below two lawyers as conduits, to conduct his purely business operations from jail. . . those items will properly both be reviewed by FTC, and potentially used as evidence at trial.
Judge Cote expects to hear from the parties by end of day tomorrow, as to whether there is an agreement. If not, it is clear that she will rule expansively in the FTC's favor -- excluding only communications later than March 13, 2020.
This means -- for all practical purposes -- Martin, Vyera, Phoenixus and Mr. Mulleady have. . . already lost, in Condor's experienced opinion. We may be virtually certain that Martin was -- as ever -- very cavalier (to put it charitably) in the way he expressed his business goals. These are admissions, by a party. This is the end of the case, effectively. Prepare for multi-million dollar settlements -- or perhaps tens of millions in a final verdict.
Court stands. . . adjourned. 5:47 PM EDT. End, live blog.
If Martin's lawyers cannot change the able USDC Judge Cote's mind (highly unlikely). . . Martin, Vyera, and Phoenixus very likely will lose overall, on the merits on antitrust grounds, here (as will Mr. Mulleady, as well).
The central open question then, remaining, is whether this ends up in a parallel criminal indictment, of Martin, on much the same allegations, out of DoJ antitrust division.
Here's the bit -- from the just entered able USDC judge's electronic order:
". . .On September 17, plaintiffs modified this request and now ask for access only for such communications between Shkreli and two attorneys: Kandis Kovalsky (attorney at Kang Haggerty and Fetbroyt LLC) and Scott Vernick (attorney at Fox Rothschild, LLP). . . .
The attorney-client privilege covers communications “that are intended to be, and in fact were, kept confidential.” United States v. Mejia, 655 F.3d 126, 132 (2d Cir. 2011). Communications made over a telephone or email system monitored by the BOP, which “the prisoner knows” is being monitored and recorded by prison authorities, are “not made in confidence and thus constitute[] a waiver of the privilege.” Id. at 133. “The fact that [the calls are] recorded amounts essentially to the presence of an unsympathetic third party -- BOP -- listening in.” Id. at 134. As a result, Shkreli’s communications with attorneys in BOP-monitored systems such as telephone calls and emails are not protected by the attorney-client privilege. This Court exercised its discretion in the management of discovery to require plaintiffs to make reasonable efforts to screen from review BOP-monitored communications between Shkreli and attorneys identified by Skhreli.
[FTC] plaintiffs have substantially narrowed their request, asking only for access to communications between Shkreli and two of his attorneys and their law firms. Given that these communications, which are in the plaintiffs’ hands pursuant to a subpoena served on the BOP, were not confidential, it is hereby ORDERED that a telephone conference will be held on Tuesday, September 22, 2020 at 4:00pm to allow Shkreli to show cause why the plaintiffs may not review all of Shkreli’s communications with Kandis Kovalsky and Scott Vernick and their respective law firms that occurred over systems monitored by the BOP. . . .
High drama, indeed -- as it is quite possible that additional jail time now hangs in the balance. . . for young Martin.
We will (of course!) post an update, when we know the final outcome.
Onward.
नमस्ते
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