Friday, March 9, 2012

Defendants' Exchange Of Privileged Litigation Materials During Acquisition Negotiations Did Not Waive Privilege Under Common Interest Doctrine

Following an in camera review, the court denied plaintiff's motion to compel the production of documents listed on defendants' privilege log and withheld from production under a claim of attorney-client privilege. Although the court's in camera review confirmed that the documents were privileged, plaintiff argued unsuccessfully that each defendant's disclosure to a co-defendant waived the privilege because such disclosure was for business and not legal purposes. "The disputed documents at issue were either authored by [one defendant's] outside counsel for [that defendant], or [a second defendant's] outside counsel for [the second defendant]. The documents were subsequently turned over to each respective party by the other during [the second defendant's] negotiations to acquire all of [the first defendant's] products and related intellectual property. . . . Defendants’ proffered intentions for the mutual exchange of the privileged documents between [defendants] establish that these parties had a common legal interest in avoiding or reducing litigation by sharing the legal documents described herein. There may indeed have been an overlap of commercial and legal interests given the purpose of the disclosure, namely wholesale purchase of [one defendant] by [another defendant]. But this overlap does not negate the effect of the legal interest in establishing a community of interest. . . . The Court finds that this mutual interest in valid and enforceable patents fits within the confines of the common legal interests doctrine."

Morvil Technology, LLC v. Ablation Frontiers, Inc., et. al., 3-10-cv-02088 (CASD March 8, 2012, Order) (Skomal, M.J.)

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