Are Antitrust Compliance Programs Protected By Attorney-Client Privilege?

We've previously written about the components of effective antitrust compliance programs and the potential benefits corporations may achieve by adopting them. (Read some of our posts here and here.) In drafting compliance programs, however, corporations should be aware that the attorney-client privilege may not protect a compliance policy from disclosure in litigation.

This fall, in the In re Domestic Drywall Antitrust Litigation (MDL No. 2437), Judge Baylson (E.D. Pa.) ordered CertainTeed Gypsum, Inc., a defendant in an action alleging a conspiracy to fix prices of drywall in the U.S., to produce a copy of its antitrust compliance policy.

CertainTeed argued that its compliance program was privileged because it (1) was a communication, (2) between privileged persons, that (3) was maintained in confidence, and (4) was for the purpose of providing legal advice. CertainTeed also noted the policy benefits of applying the attorney-client privilege to