Benjamin Brafman, the newly retained attorney for indicted ex-pharmaceutical CEO Martin Shkreli, on Wednesday told a federal judge that he might seek to challenge prosecutors’ use of some emails between Shkreli and a Kaye Scholer attorney.

In early December, Eastern District Judge Jack Weinstein ruled that communications between Shkreli and attorney Evan Greebel were not privileged (NYLJ, Jan. 29). Greebel was a partner at Katten Muchin Rosenman and serving as outside counsel to biopharmaceutical company Retrophin when Shkreli was its CEO. The indictment against both, alleging a fraud scheme, cited their email exchanges.

Brafman told Eastern District Judge Kiyo Matsumoto that Shkreli was a “personal client” of Greebel and might request that the government “may not be permitted” to use some personal emails between Greebel and Shkreli that fell within attorney-client privilege.

Eastern District Assistant U.S. Attorney Winston Paes told Matsumoto that while Shkreli’s $5 million bond was secured by a brokerage account worth $45 million—based on stock in KaloBios Pharmaceuticals at the time of his indictment—the stock price has dropped significantly, and Shkreli’s account recently fluctuated below $5 million. Paes said Shkreli may need to post more assets.

Meanwhile, Brafman said he will accompany Shkreli to Washington D.C. on Thursday to testify at a congressional hearing focused on drug pricing. Brafman has said Shkreli will decline to give an opening statement and invoke his Fifth Amendment privilege against self-incrimination.

Outside court, Brafman, whom Shkreli retained to replace Arnold & Porter, said that as a condition of his representation, Shkreli will no longer speak to reporters. “We want to try this case in the courtroom, and not in the media,” Brafman told reporters.

Greebel appeared in court Wednesday with counsel, Jonathan Sack, a partner at Morvillo Abramowitz Grand Iason & Anello.