CLERKS OFFICE U.S. DIST. ¢ AT ABINGDON, VA IN THE UNITED STATES DISTRICT COURT mu FOR THE WESTERN DISTRICT OF VIRGINIA | “pemoe: □□ □□□ ABINGDON DIVISION BY: s/ FELICIA CLARK DEPUTY CLERK UNITED STATES OF AMERICA, ef ) al., ex rel. REBECCA MILLER, ) ) Plaintiff-Relator, ) Case No. 1:15CV00017 ) V. ) OPINION AND ORDER ) RECKITT BENCKISER ) JUDGE JAMES P. JONES PHARMACEUTICALS, INC., n/k/a ) INDIVIOR INC., ) ) Defendant. ) Argued: Maghan S. B. Oliver, MOTLEY RICE LLC, Mt. Pleasant, South Carolina, for Plaintiff-Relator; Jonathan T. Blank, MCGuIREWoobDs LLP, Charlottesville, Virginia, for Defendant. Rebecca Miller, the plaintiff-relator in this qui tam action under the False Claims Act and similar local statutes, has moved to compel the production of documents that the defendant Reckitt Benckiser Pharmaceuticals, Inc., now known
as Indivior Inc. (hereafter Indivior) contends are protected by attorney-client and work product privileges. The motion will be granted in part and denied in part. I. BACKGROUND. Plaintiff-Relator Miller engaged independent counsel to review her files and identify material over which Indivior might choose to assert privilege. Independent counsel conducted this review and provided those files to Indivior, with Miller’s potentially privileged information redacted. Indivior reviewed those files and
claimed privilege over portions of 68 of the documents. Miller objects to the assertion of privilege as to 66 of the documents. Miller argues that the crime-fraud exception to attorney-client privilege justifies their disclosure. Further, the parties identified seven documents that independent counsel partially redacted and withheld from both parties on the belief that both might claim
a privilege. Those documents are listed in Exhibit C to Miller’s Motion to Compel. After oral argument, I determined that in camera review of the documents was justified to consider what, if any, of the redacted material could be unredacted and released to the parties. I have reviewed the privilege log and the 66 documents subject to the Motion to Compel, as well as the seven documents withheld from both parties. Based on that review, and consideration of the applicable law, I have determined the privilege status of the documents as described below. Il. STANDARD OF REVIEW. Because this case involves federal causes of action, “[t]he common law — as interpreted by United States courts in the light of reason and experience — governs a claim of privilege.” Fed. R. Evid. 501. A. Attorney-Client Privilege. The attorney-client privilege “affords confidential communications between lawyer and client complete protection from disclosure.” In re Grand Jury Subpoena, 204 F.3d 516, 519 (4th Cir. 2000) (quoting Hawkins v. Stables, 148 F.3d 379, 383
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(4th Cir. 1998)). It “applies only to confidential disclosures by a client to an attorney made in order to obtain legal assistance.” J/d. (internal citations and quotation marks omitted). The attorney-client privilege must be “strictly confined within the narrowest possible limits consistent with the logic of its principle.” Jn re Grand Jury Proceedings, 727 F.2d 1352, 1355 (4th Cir. 1984) (internal quotation marks and citation omitted). “The burden is on the proponent of the attorney-client privilege to demonstrate its applicability.” United States v. Jones, 696 F.2d 1069, 1072 (4th Cir. 1982). B. Work Product Privilege. “[T]he work product doctrine belongs to the attorney and confers a qualified privilege on documents prepared by an attorney in anticipation of litigation.” Solis
v. Food Emp'rs Lab. Relations Ass ’n, 644 F.3d 221, 231 (4th Cir. 2011) (citing, inter alia, Hickman vy. Taylor, 329 U.S. 495, 509-14 (1947)). As with the attorney-client privilege, the burden of showing that the work product protection applies lies with the party asserting the privilege. C. Crime-Fraud Exception. The crime-fraud exception exists “to ensure that the ‘seal of secrecy’ between lawyer and client does not extend to communications made for the purpose of getting advice for the commission of a fraud or crime.” United States v. Regan, 281 F. Supp. 2d 795, 804 (E.D. Va. 2002) (internal citations and quotation marks omitted). For
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the crime-fraud exception to overcome a stated privilege, the party seeking discovery must show that the communications (1) were made for an unlawful purpose or to further an illegal scheme; and (ii) reflect an ongoing or future unlawful or illegal scheme or activity. United States v. Lentz, 419 F. Supp. 2d 820, 831 (E.D. Va. 2005). It does not matter “whether the attorney knew that the client was seeking his advice for illegal purposes” or whether the attorney “counseled against the illegal activity.” Id. at 830. The prima facie showing required to satisfy the crime-fraud exception is proof “such as to subject the opposing party to the risk of non-persuasion if the evidence
as to the disputed fact is left unrebutted.” Jn re Grand Jury 2021 Subpoenas, 87 F.4th 229, 254 (4th Cir. 2023) (internal citation and quotation marks omitted). Here, Miller argues that the crime-fraud exception applies to the challenged documents because the redacted portions of those documents contain information about conversations where Indivior executives conspired with counsel to circumvent reporting requirements. She states that the use of counsel to further a future illegal scheme and the “close relationship” between the conversations and that scheme render the material discoverable.
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II. | DOCUMENTS SUBJECT TO MILLER’S MOTION TO COMPEL. I have reviewed the 66 files over which Miller has challenged Indivior’s privilege to determine whether the crime-fraud exception applies as alleged. Many of the documents are essentially duplicates, although some have slight formatting or wording edits. In any event, many of the redacted sections are consistent among versions of the documents. Therefore, where these sections are consistent, I have grouped together multiple versions of the same document for evaluation. The tables below provide instruction to independent counsel as to which portions of the documents can be unredacted and made available to one or both of the parties. To preserve privilege where applicable, I have included minimal discussion of the contents of the redacted materials. 1. Toxicity: Murder, Mayhem and Debauchery: My Life in the Pharmaceutical Industry. The submitted documents include 14 versions of a manuscript written by Miller that she describes as her “book.” The manuscript reads as a narrative account of Miller’s social and professional interactions, much of which is unrelated to this litigation. In three places where the manuscript discusses Indivior’s operations or decision-making, Indivior has asserted attorney-client privilege.
First Redacted Second Redacted Third Redacted Section Section Section
5.
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CLERKS OFFICE U.S. DIST. ¢ AT ABINGDON, VA IN THE UNITED STATES DISTRICT COURT mu FOR THE WESTERN DISTRICT OF VIRGINIA | “pemoe: □□ □□□ ABINGDON DIVISION BY: s/ FELICIA CLARK DEPUTY CLERK UNITED STATES OF AMERICA, ef ) al., ex rel. REBECCA MILLER, ) ) Plaintiff-Relator, ) Case No. 1:15CV00017 ) V. ) OPINION AND ORDER ) RECKITT BENCKISER ) JUDGE JAMES P. JONES PHARMACEUTICALS, INC., n/k/a ) INDIVIOR INC., ) ) Defendant. ) Argued: Maghan S. B. Oliver, MOTLEY RICE LLC, Mt. Pleasant, South Carolina, for Plaintiff-Relator; Jonathan T. Blank, MCGuIREWoobDs LLP, Charlottesville, Virginia, for Defendant. Rebecca Miller, the plaintiff-relator in this qui tam action under the False Claims Act and similar local statutes, has moved to compel the production of documents that the defendant Reckitt Benckiser Pharmaceuticals, Inc., now known
as Indivior Inc. (hereafter Indivior) contends are protected by attorney-client and work product privileges. The motion will be granted in part and denied in part. I. BACKGROUND. Plaintiff-Relator Miller engaged independent counsel to review her files and identify material over which Indivior might choose to assert privilege. Independent counsel conducted this review and provided those files to Indivior, with Miller’s potentially privileged information redacted. Indivior reviewed those files and
claimed privilege over portions of 68 of the documents. Miller objects to the assertion of privilege as to 66 of the documents. Miller argues that the crime-fraud exception to attorney-client privilege justifies their disclosure. Further, the parties identified seven documents that independent counsel partially redacted and withheld from both parties on the belief that both might claim
a privilege. Those documents are listed in Exhibit C to Miller’s Motion to Compel. After oral argument, I determined that in camera review of the documents was justified to consider what, if any, of the redacted material could be unredacted and released to the parties. I have reviewed the privilege log and the 66 documents subject to the Motion to Compel, as well as the seven documents withheld from both parties. Based on that review, and consideration of the applicable law, I have determined the privilege status of the documents as described below. Il. STANDARD OF REVIEW. Because this case involves federal causes of action, “[t]he common law — as interpreted by United States courts in the light of reason and experience — governs a claim of privilege.” Fed. R. Evid. 501. A. Attorney-Client Privilege. The attorney-client privilege “affords confidential communications between lawyer and client complete protection from disclosure.” In re Grand Jury Subpoena, 204 F.3d 516, 519 (4th Cir. 2000) (quoting Hawkins v. Stables, 148 F.3d 379, 383
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(4th Cir. 1998)). It “applies only to confidential disclosures by a client to an attorney made in order to obtain legal assistance.” J/d. (internal citations and quotation marks omitted). The attorney-client privilege must be “strictly confined within the narrowest possible limits consistent with the logic of its principle.” Jn re Grand Jury Proceedings, 727 F.2d 1352, 1355 (4th Cir. 1984) (internal quotation marks and citation omitted). “The burden is on the proponent of the attorney-client privilege to demonstrate its applicability.” United States v. Jones, 696 F.2d 1069, 1072 (4th Cir. 1982). B. Work Product Privilege. “[T]he work product doctrine belongs to the attorney and confers a qualified privilege on documents prepared by an attorney in anticipation of litigation.” Solis
v. Food Emp'rs Lab. Relations Ass ’n, 644 F.3d 221, 231 (4th Cir. 2011) (citing, inter alia, Hickman vy. Taylor, 329 U.S. 495, 509-14 (1947)). As with the attorney-client privilege, the burden of showing that the work product protection applies lies with the party asserting the privilege. C. Crime-Fraud Exception. The crime-fraud exception exists “to ensure that the ‘seal of secrecy’ between lawyer and client does not extend to communications made for the purpose of getting advice for the commission of a fraud or crime.” United States v. Regan, 281 F. Supp. 2d 795, 804 (E.D. Va. 2002) (internal citations and quotation marks omitted). For
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the crime-fraud exception to overcome a stated privilege, the party seeking discovery must show that the communications (1) were made for an unlawful purpose or to further an illegal scheme; and (ii) reflect an ongoing or future unlawful or illegal scheme or activity. United States v. Lentz, 419 F. Supp. 2d 820, 831 (E.D. Va. 2005). It does not matter “whether the attorney knew that the client was seeking his advice for illegal purposes” or whether the attorney “counseled against the illegal activity.” Id. at 830. The prima facie showing required to satisfy the crime-fraud exception is proof “such as to subject the opposing party to the risk of non-persuasion if the evidence
as to the disputed fact is left unrebutted.” Jn re Grand Jury 2021 Subpoenas, 87 F.4th 229, 254 (4th Cir. 2023) (internal citation and quotation marks omitted). Here, Miller argues that the crime-fraud exception applies to the challenged documents because the redacted portions of those documents contain information about conversations where Indivior executives conspired with counsel to circumvent reporting requirements. She states that the use of counsel to further a future illegal scheme and the “close relationship” between the conversations and that scheme render the material discoverable.
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II. | DOCUMENTS SUBJECT TO MILLER’S MOTION TO COMPEL. I have reviewed the 66 files over which Miller has challenged Indivior’s privilege to determine whether the crime-fraud exception applies as alleged. Many of the documents are essentially duplicates, although some have slight formatting or wording edits. In any event, many of the redacted sections are consistent among versions of the documents. Therefore, where these sections are consistent, I have grouped together multiple versions of the same document for evaluation. The tables below provide instruction to independent counsel as to which portions of the documents can be unredacted and made available to one or both of the parties. To preserve privilege where applicable, I have included minimal discussion of the contents of the redacted materials. 1. Toxicity: Murder, Mayhem and Debauchery: My Life in the Pharmaceutical Industry. The submitted documents include 14 versions of a manuscript written by Miller that she describes as her “book.” The manuscript reads as a narrative account of Miller’s social and professional interactions, much of which is unrelated to this litigation. In three places where the manuscript discusses Indivior’s operations or decision-making, Indivior has asserted attorney-client privilege.
First Redacted Second Redacted Third Redacted Section Section Section
5.
MILLER- MILLER- MILLER- MILLER- CTRL00001375 CTRL00001501- | CTRLO0001507 CTRL00001519- 02 20 MILLER- MILLER- MILLER- MILLER- CTRL00000344 CTRL00000470- | CTRL00000476 CTRL00000488- 71 489 MILLER- MILLER- MILLER- MILLER- CTRL00001209 CTRL00001335- | CTRLOO001341 CTRL00001353- 36 54 MILLER- MILLER- MILLER- MILLER- CTRL00001037 CTRL00001163- | CTRLO0001169 CTRL00001181- 64 82 MILLER- MILLER- MILLER- MILLER- CTRL00000871 CTRL00000997- | CTRL00001003 CTRL00001015- 98 16 MILLER- MILLER- MILLER- MILLER- CTRL00000509 CTRL00000635- | CTRL00000641 CTRL00000653- 36 54 MILLER- MILLER- MILLER- Not included in the CTRL00001532 CTRL00001657- | CTRL00001663 document 58 MILLER- MILLER- MILLER- MILLER- CTRL00003011 CTRL00003137- | CTRL00003143 CTRL00003155- 38 56 MILLER- MILLER- MILLER- Not included in the CTRL00001671 CTRL00001796- | CTRLO0001802 document 97 MILLER- MILLER- MILLER- MILLER- CTRL00002847 CTRL00002973- | CTRL00002979 CTRL00002991- Note: (There are | 74 92 two copies of this number. One is shortened version and does _ not include the redacted sections. CTRL00000179 CTRL00000305- | CTRL00000311 CTRL00000323- 06 24
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MILLER- MILLER- MILLER- MILLER- CTRL00000690 CTRL00000816- | CTRL00000822 CTRL00000834- 17 35 MILLER- MILLER- MILLER- Not included in the CTRL00000040 CTRL00000165- | CTRL00000171 document 66 Redaction Indivior holds a]|Indivior holds Indivior does not Instructions: valid privilege | valid privilege hold a __ valid over this redacted | over this redacted | privilege over this material. The | material. The | redacted material Motion to Compel | Motion to Compel] and it will be is denied regarding | is denied regarding | unredacted = and this section. this section. released to Miller. The Motion to Compel is granted regarding this section.
2. Sets of Meeting Notes Beginning Tuesday, March 25, 2014. Several copies of notes from a series of meetings have been submitted in
camera review. The meetings in these documents occurred on Tuesday, March 24, 2014, Wednesday, March 26, 2014, Tuesday, April 9, 2014, Wednesday, May 28, 2014, and Thursday, May 29, 2014. Version Page Numbers of | Page Numbers of | Page Numbers of First Redacted Second Redacted Third Redacted Section Section Section MILLER- MILLER- MILLER- MILLER- CTRL00003175 | CTRL00003175 CTRL00003176 CTRL00003 177- 78 MILLER- MILLER- MILLER- Not included in the CTRL00000032 | CTRL00000032 CTRL00000033 document MILLER- MILLER- MILLER- MILLER- CTRL00002702 | CTRL00002702 CTRL00002703 CTRL00002704- 05
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Note: This copy is | Note: This copy is blacked out blacked out in marker. marker. This page also includes a redacted line from a subsequent meeting that was not redacted in other versions. CTRL00002627 | CTRL00002627 CTRL00002628 document CTRL00003180 | CTRL00003 180 CTRL00003181 document MILLER- MILLER- MILLER- MILLER- CTRL00002822 | CTRL00002822 CTRL00002823 CTRL00002824- 25 CTRL00002648 | CTRL00002648 CTRL00002649 document CTRL00002644 | CTRL00002644 CTRL00002645 document CTRL00002642 | CTRL00002642 CTRL00002643 document CTRL00002632 | CTRL00002632 CTRL00002633 document CTRL00002637 | CTRL00002637 CTRL00002638 document MILLER- MILLER- MILLER- MILLER- CTRL00002614 | CTRL00002614 CTRL00002615 CTRL00002616- 17 CTRL00002611 | CTRLO0002611 CTRL00002612 document MILLER- MILLER- MILLER- MILLER- CTRL00002621 | CTRL00002621 CTRL00002622 CTRL00002623- 24 MILLER- Not included in the | Not included in the | MILLER- CTRL00000029 | document document CTRL00000029- 30
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Redaction Indivior holds aJIndivior holds aJ|Indivior does not Instructions: valid privilege over | valid privilege} hold a valid this redacted | over this redacted | privilege over material. The | material. The | paragraph 1 of this Motion to Compel is | Motion to Compel | section. Paragraph denied regarding | is denied regarding | 1 should — be this section. this section. unredacted and released to Miller. Indivior holds a valid privilege over paragraph 2. Paragraph 2 may remain __ redacted and screened from Miller. = Indivior also holds a valid privilege over the first sentence of paragraph 3. The first sentence may remain redacted. The rest of the paragraph should be unredacted and released to Miller. The Motion to Compel is granted in part and denied in part as to this section.
3. November 11, 2023, Email from Miller to Frazier.
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Redaction Instructions: Indivior holds a valid privilege over the third sentence of this section. The rest of the section is not subject to Indivior’s attorney-client privilege and should be unredacted and released to Miller. The Motion to Compel is granted in part and denied in part as to this section.
4. September 2, 2018, Email from Miller to Frazier.
Redacted Section Redacted Section CTRL00003237 CTRL00003237 CTRL00003238 Redaction Instructions: | Indivior holds a_ valid | Indivior does not hold a privilege over _ this] valid privilege over this redacted material. The| redacted material and it Motion to Compel is|should be released to denied regarding this} Miller. The Motion to section. Compel is granted regarding this section.
5. Unlabeled Document.
Redaction Instructions: Indivior does not hold a valid privilege over this redacted material and it should be released to Miller. The Motion to Compel is granted regarding this section. 6. June 2, 2015, Email from Miller to Leader.
Redaction Instructions: Indivior does not hold a valid privilege over this redacted material and it should be released to Miller. The Motion to
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section.
7. Relator’s Disclosure Statement. The Disclosure Statements in the Court’s possession fall into three main formatting categories for the purposes of redaction. They are separated into those categories below. Category 1 Version Page Numbers of | Page Numbers of | Page Numbers First Redacted Second Redacted of Third Section Section Redacted Section MILLER- MILLER- MILLER- MILLER- CTRL00002798 CTRL00002799 CTRL00002800 CTRL00002801- 02 MILLER- MILLER- MILLER- MILLER- CTRL00002598 CTRL00002599 CTRL00002600 CTRL00002601- 02 MILLER- MILLER- MILLER- MILLER- CTRL00002812 CTRL00002813 CTRL00002814 CTRL00002815- 16 MILLER- MILLER- MILLER- MILLER- CTRL00002791 CTRL00002792 CTRL00002793 CTRL00002794- 95 MILLER- MILLER- MILLER- MILLER- CTRL00002778 CTRL00002779 CTRL00002780 CTRL00002781- 82 MILLER- MILLER- MILLER- MILLER- CTRL00002471 CTRL00002472 CTRL00002473 CTRL00002474- 75 MILLER- MILLER- MILLER- MILLER- CTRL00003183 CTRL00003184 CTRL00003185 CTRL00003 1 86- 87
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MILLER- MILLER- MILLER- MILLER- CTRL00003232 CTRL00003233 CTRL00003234 CTRL00003235- 36 MILLER- MILLER- MILLER- MILLER- CTRL00003225 CTRL00003226 CTRL00003227 CTRL00003228- 29 MILLER- MILLER- MILLER- MILLER- CTRL00003188 CTRL00003189 CTRL00003190 CTRL00003191- 92 MILLER- No _ highlighting; | No highlighting; | MILLER- CTRL00003198 just blacked out| just blacked out | CTRL00003202; text text Note: This section is partially highlighted in this copy. MILLER- MILLER- MILLER- MILLER- CTRL00003193 CTRL00003194 CTRL00003195 CTRL00003196- 97 CTRL00002681 CTRL00002682 CTRL00002683 CTRL00002684 MILLER- MILLER- MILLER- MILLER- CTRL00002593 CTRL00002594 CTRL00002595 CTRL00002596- 97 MILLER- MILLER- MILLER- MILLER- CTRL00002817 CTRL00002818 CTRL00002819 CTRL00002820- Note: Part of this 21 section is unredacted in this copy only. Redaction Indivior holds aJIndivior holds aJ|Indivior holds a Instructions: valid privilege over | valid privilege over] valid privilege this redacted | this redacted | over the 12th material. The | material. The | sentence of this Motion to Compel | Motion to Compel | section. The rest is denied regarding | is denied regarding | of the section is this section. this section. not subject to Indivior’s attorney-client
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privilege and should be unredacted and released to Miller. The Motion to Compel is granted in part and denied in part as to this section.
Category 2 Version Page Numbers of | Page Numbers of | Page Numbers First Redacted Second Redacted of Third Section Section Redacted Section MILLER- MILLER- MILLER- MILLER- CTRL00002605 CTRL00002606 CTRL00002606 CTRL00002607- 08 MILLER- MILLER- MILLER- MILLER- CTRL00002827 CTRL00002828 CTRL00002828 CTRL00002829- 30 Redaction Indivior holds a]|Indivior holds aJ|Indivior holds a Instructions: valid privilege over | valid privilege over] valid privilege this redacted | this redacted] over the 11th material. The | material. The | sentence of this Motion to Compel | Motion to Compel | section. The rest is denied regarding | is denied regarding | of the section is this section. this section. not subject to Indivior’s attorney-client privilege and should be unredacted and released to Miller. The Motion to
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Compel is granted in part and denied in part as to this section. Category 3 Version Page Numbers of | Page Numbers of | Page Numbers First Redacted Second Redacted of Third Section Section Redacted Section MILLER- MILLER- MILLER- MILLER- CTRL00000023 CTRL00000024 CTRL00000025- | CTRL00000026 26 Redaction Indivior holds aJIndivior holds aJ|Indivior holds a Instructions: valid privilege over | valid privilege over] valid privilege this redacted | the 12th sentence of | over this material. The | this section. The | redacted Motion to Compel | rest of the section is | material. The is denied regarding | not subject to| Motion to this section. Indivior’s attorney- | Compel is denied client privilege and] regarding this should be | section. unredacted and released to Miller. The Motion — to Compel is granted in part and denied in part as to this section.
8. Relator’s Supplemental Disclosure Statement.
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MILLER-CTRL00002769 MILLER-CTRL00002769 MILLER-CTRL00003223 MILLER-CTRL00003223 MILLER-CTRL00003260 MILLER-CTRL00003260 MILLER-CTRL00003205 MILLER-CTRL00003205 MILLER-CTRL00003203 MILLER-CTRL00003203 MILLER-CTRL00003 258 MILLER-CTRL00003258 Redaction Instructions: Indivior does not hold a valid privilege over this redacted material and it should be released to Miller. The Motion to Compel is granted regarding this section.
III. |. DOCUMENTS WITH REDACTED MATERIAL NEITHER PARTY HAS SEEN. 1. November 2023 Email Thread Between Miller and Leader. There are several variations of this email thread which include slightly different materials. Even so, the redacted sections align so I will address them together. Version Page Numbers | Page Numbers | Page Numbers | Page Numbers | Page Numbers of First of Second of Third of Fourth of Fifth Redacted Redacted Redacted Redacted Redacted Section Section Section Section Section MILLER- MILLER- MILLER- MILLER- MILLER- MILLER- CTRL00000680 | CTRL00000680 | CTRL00000680 | CTRL00000682 | CTRLO00000683 | CTRL0000068- -82 MILLER- MILLER- MILLER- MILLER- MILLER- MILLER- CTRL00000854 | CTRL00000854 | CTRL00000854 | CTRLO00000856 | CTRLO00000857 | CTRLOO000858 -56 MILLER- MILLER- MILLER- MILLER- MILLER- MILLER- CTRL00002661 | CTRL00002661 | CTRL00002662 | CTRL00002664 | CTRL00002664 | CTRL0000266¢ -63 -65 Note: This version includes some unredacted lines within the section.
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MILLER- MILLER- MILLER- MILLER- MILLER- MILLER- CTRL00002671 | CTRL00002671 | CTRL00002671 | CTRL00002673 | CTRL00002673 | CTRL0000267: -73 -74 Redaction Miller holds a] Miller holds a] Miller holds a] Miller holds a] This section i Instructions: | Valid privilege | valid privilege | valid privilege | valid privilege | highlighted □□ over this | over this | over this | over this | yellow an section. It | section. section. It | section. It | included il should not be | However, should not be] should not be | documents released to | Indivior also | released to | released to | subject to th Indivior. holds a_ valid | Indivior. Indivior. Motion te Indivior does | privilege over|Indivior does | However, Compel not hold a valid | some of this | not hold a valid | Indivior holds a | discussed privilege over | section, privilege. valid privilege | above. As □□□□□ this section. | specifically Therefore, the | over the | above, Indivio Therefore, the | lines 1-2, 13-26, | material can be | sentence holds a_ valic material should | 38-39, 44-46, | unredacted and] beginning privilege ove be released to | and 49-52 of the | released to} line 18 and] the thirc Miller but not to | section. All | Miller but not | continuing sentence of thi: Indivior. other lines | Indivior. through line 20 | section. Th should be of the section.] rest of □ th unredacted and All other lines] section is no released to should be | subject t Miller. unredacted and | Indivior’s released to | attorney-client Miller. privilege — an should bi unredacted anc released te Miller. Th Motion te Compel i granted in par and denied i part as to thi section. 2. Relator’s Disclosure Statement: MILLER-CTRL00002806. This document is similar to the Disclosure Statements discussed above but includes notes and in-text comments from Miller’s prior counsel requesting more information from Miller. It contains yellow highlighting, indicating information that Indivior redacted after review. The yellow highlighting largely tracks the -16-
highlighted sections in the other Disclosure Statements. But because of the added commentary from Miller’s previous counsel, it also contains blue highlighting, indicating information that has been redacted and withheld from both parties. Independent counsel believed that this information potentially fell under Miller’s work product privilege and Indivior’s attorney-client privilege. Because the sections in yellow highlighting track with the yellow highlighting in the Disclosure Statements that do not contain notes from counsel, the yellow sections should be released or redacted just like the Disclosure Statement sections discussed above. The sections in blue highlighting should be disclosed to Miller but not to Indivior. Miller holds a valid privilege over these sections. However, Indivior does not have a valid attorney-client privilege over this material because it is subject to the crime-fraud exception. Accordingly, Miller should receive a copy of this document with the blue highlighted sections unredacted. Those sections should remain screened from Indivior. 3. November 17, 2023, Email Thread. Two variations of this email thread have been provided for review, but the redacted sections match, so they can be discussed together. MILLER- CTRL00000673 only has yellow highlighting which, according to independent counsel’s key, indicates material that Indivior has redacted after review. But it is
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included in Exhibit C’s list of documents that have been screened from both parties. To the extent that a color-coding error was made as to that document, I have considered both Miller’s and Indivior’s privileges as they apply to the highlighted text. MILLER-CTRL00002654 has redacted sections color-coded in blue, which properly indicates that the material has been withheld from both parties. Version Page Numbers of | Page Numbers of | Page Numbers First Redacted Second Redacted of Third Section Section Redacted Section CTRL00002654 CTRL00002654 CTRL00002654 CTRL00002655 CTRL00000673 CTRL00000673 CTRL00000673 CTRL00000675 Redaction Both parties have a| This section | This section Instructions: valid privilege over] contains the same | matches the this section. It | language as | Second Redacted should remain | MILLER- Section in these redacted from both | CTRL00000864 documents. The Miller and Indivior. | discussed above. In | same this context, Miller | instructions holds a valid work- | apply. product privilege over the material. Indivior holds a valid privilege over the third sentence of the — section. However, independent counsel already passed this section to Indivior for review in the MILLER-
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CTRL00000864 document, SO retaining redactions from Indivior here would not have a practical effect. With the exception of the third sentence, this section should be unredacted and released to Miller.
IV. CONCLUSION. Accordingly, Plaintiff-Relator’s Motion to Compel Production of Privileged Documents, Dkt. No. 207, is GRANTED in part and DENIED in part. It is so ORDERED. ENTER: September 9, 2026 /s/_ JAMES P. JONES Senior United States District Judge
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