You can't gain access to privileged communications by claiming your discovery request seeks "just the facts."
In a lengthy oral order yesterday, Judge Burke denied a motion to compel responses to interrogatories seeking plaintiffs' communications with their prosecution counsel.
For the first interrogatory, the decision was "not a difficult one." It sought "all facts" provided to prosecution counsel "regarding certain subject matter relevant to Defendants' inequitable conduct defenses and counterclaims." There's no way to respond to an interrogatory like this without revealing the substance of attorney-client communications.
The second was "a bit less sweeping[,]" but not by much. It asked the plaintiffs to identify all prior art and FDA correspondence provided to their prosecution counsel, including details like the day it was sent and who was involved. As Judge Burke put it:
[T]hat type of specificity (e.g., setting out which particular prior art document was discussed between client and counsel on a particular date and time, in the course of the provision of legal advice) would not be included on a typical privilege log. And in the Court's view, requiring such disclosure would go too far over the line[.]
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