Litigation Counsel's Representation of Inventor at Deposition Was Not a "Bona-Fide Attorney-Client Relationship" and Did

Not Trigger Attorney-Client Privilege

The court found that the attorney-client privilege did not apply to plaintiff and a deposed inventor and ordered that if plaintiffs presented evidence from the inventor, defendants would be able to cross-examine the witness about any communications with plaintiff's lawyers about any case involving the patent-in-suit. "[Plaintiff's outside counsel] volunteered his legal assistance to [the inventor] at no charge even though [the inventor] was already represented by a lawyer not involved in [plaintiff's] patent litigation. [Plaintiff's counsel's] only motive in thus volunteering could have been to discourage [the inventor] from giving any testimony at his deposition that might be helpful to [defendants] or other Android affiliates in their patent war with [plaintiff]. . . . [Plaintiff's counsel's] retention agreement with [the inventor] required [him] not to waive attorney-client privilege but gave [plaintiff] the power to waive [the inventor's] attorney-client privilege regarding any communications he had with [plaintiff's counsel]. [The inventor] neither required legal counseling from [plaintiff's counsel] to 'protect' him from [defendants] nor, so far as I can determine from the affidavits, received any. I conclude that no bona fide attorney-client relationship was created and that Apple’s assertion of attorney-client privilege is unfounded."

Apple, Inc. v. Motorola, Inc., et. al., 1-11-cv-08540 (ILND April 23, 2012, Order) (Posner, C.J.)

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