Settlement Privilege Does Not Apply to Past Licenses

The court granted in part plaintiff's motion to compel further damages discovery. "Plaintiff seeks discovery of information relating to seven licenses, two of which have been relied upon by Defendants’ damages expert for the purpose of calculating a reasonable royalty. . . . [T]he Federal Circuit [has] discussed the Sixth Circuit’s ruling . . . adopting a settlement privilege but declined to adopt such a privilege for patent litigation. . . . In light of the foregoing Plaintiff’s request for discovery is not barred by a settlement privilege nor is there a heightened standard for discovery of documents relating to settlement negotiations. . . . Although certain communications relative to settlement negotiations may be attorney-client communications and/or attorney work-product, at this juncture the Court cannot assume that all of the settlement communications pertaining to Defendants’ licenses are protected by attorney-client privilege and/or attorney work-product. Indeed, that would seem unlikely since communications between the parties to the licenses, or between the parties’ representatives, would not be privileged. . . . The fact that Defendants are relying on only some of the six licenses does not negate the relevance of the license agreements not relied upon by Defendants."

01 Communique Laboratory, Inc. v. Citrix Systems, Inc., 1-06-cv-00253 (OHND December 29, 2014, Order) (Burke, M.J.)