Argument That Past License Was “Discounted” Waives Settlement Privilege As To Communications About The License

The court granted in part defendant's renewed motion to compel plaintiff's communications regarding licensing negotiations after plaintiff put the license negotiations in dispute. "[Defendant] brings this renewed motion because [plaintiff] has now – through its response to a Request for Admission and the deposition testimony of its CEO – argued that the rates on one or more of its prior licenses were 'discounted' in light of business decisions. . . . The Court agrees that, following [In re MSTG Inc., 675 F.3d 1337, 1348 (Fed. Cir. 2012)], [plaintiff] is required to produce the emails and letters regarding its licensing negotiations, whether or not those communications could be considered Rule 408 'settlement' discussions. [Its] production should encompass all such communications, not simply those that [plaintiff] believes address 'substantive' terms of the proposed agreements or which touch on the matters [its] CEO testified to."

Implicit Networks, Inc. v. Juniper Networks, Inc., 3-10-cv-04234 (CAND July 23, 2012, Order) (Illston, J.).