Days before pharmaceutical head Martin Shkreli and Kaye Scholer partner Evan Greebel were arrested for fraud, an Eastern District judge ruled that their communications were not privileged.
Court papers unsealed this week show that grand jury subpoenas sought communications between Shkreli, who was CEO of biopharmaceutical company Retrophin until September 2014, and Greebel, who was outside counsel to Retrophin.
Greebel was a partner at Katten Muchin Rosenman while Shkreli was at Retrophin.
Retrophin agreed to waive attorney-client privilege to communications between Shkreli and Greebel. However, Shkreli argued that Greebel also represented him personally and Retrophin could not waive personal attorney-client privilege. Retrophin redacted some of the communications.
The Eastern District U.S. Attorney’s office, in a Nov. 17 ex-parte application, argued the crime fraud exception to the privilege applies and that Retrophin should be compelled to provide unredacted documents.
On Dec. 3, Judge Jack Weinstein ruled the documents “were not subject to an attorney-client privilege of the employee,” who was warned that documents created during employment were company property.
“For purposes of this application to unseal, exchanges in redacted emails between the attorney and employee were part of a scheme, conspiracy or fraudulent attempt to commit a securities fraud. The attorney-client relationship and privilege, if any, is voided by the criminal conduct,” Weinstein wrote, adding alternatively, they concerned company business not subject to personal privilege.
Weinstein said Retrophin should provide the government with unredacted documents.
On Dec. 17, prosecutors unsealed an indictment against Shkreli and Greebel that cited their messages (NYLJ, Dec. 18, 2015).
Baruch Weiss, an Arnold & Porter partner representing Shkreli, declined to comment. Greebel’s attorney, Jonathan Sack, a partner at Morvillo Abramowitz Grand Iason & Anello, did not return a message for comment.