Out RAGE LLC v. New Archery Products Corporation, 3-11-cv-00701 (WIWD December 28, 2012, Order) (Crocker, M.J.).
Thursday, January 3, 2013
No privilege for “business decision about whether and when to unleash . . . patent attorney”
The court granted defendant's motion to compel plaintiff to produce four emails regarding the timing of an infringement claim, rejected plaintiff's claim of privilege, and awarded sanctions. "According to [plaintiff], notwithstanding the facts that no attorney was involved in the discussion, no attorney had provided any input, and in fact, no attorney even had been contacted yet, the discussion still is privileged, apparently because the non-lawyers are talking about talking to their lawyer. This is an alarmingly simplistic view of the privilege. . . . Four senior managers making a business decision about whether and when to unleash their patent attorney (plus a report that the call was made and a message left) doesn’t cut it. . . . Four executives agreeing that they will try to cast a cloud over [a manufacturer's] new launch by getting the patent attorneys involved is not attorney work product."