When magistrate judges are referred a dispositive matter, they issue an R&R that goes to the district judge. In Delaware, an R&R typically notes the objection period at the end, and the losing party typically (but not always) files objections.
When magistrate judges are referred a non-dispositive matter, they issue an order (and possibly an opinion). The order typically does not mention any review period or process for review.
What parties often forget is that you can object to a magistrate judge's order just as easily as you can to an R&R under FRCP 72. And, in fact, the District Court judges do sustain those objections from time to time. The standard of review is de novo, as Judge Connolly recognized on Friday:
I "may reconsider" [a magistrate judge's] ruling " where it has been shown that [it] ... is clearly erroneous or contrary to law." . . . I exercise de novo review of the Magistrate Judge's legal conclusions.
He sustained an objection to, and reversed, a finding by Judge Fallon that had denied a motion to compel documents discussing the litigation that were exchanged during an acquisition of the defendant (while the litigation was pending).
Judge Connolly held that a non-binding letter of intent to acquire a company is simply insufficient for common interest privilege (which is really an exception to the waiver of the attorney-client privilege) to apply:
[Defendant] has not contended, let alone established, that it and [its acquirer] shared an identical legal interest or that its communications . . . were made for the purpose of securing, advancing, or supplying legal representation. And, of course, that makes sense, as [the defendant and acquirer] were not engaged in legal strategy sessions but instead were negotiating a commercial transaction from the opposite sides of a bargaining table.
Judge Connolly noted that the application of common interest privilege under these circumstances stems from a single case, which which was later adopted only by a minority of courts—and rejected by a majority, all of which he cited.
He rejected the "policy considerations" underlying the application of privilege in these circumstances as being inconsistent with the rule's purpose, and ordered production of the information (except for attorney files or mental impressions, which plaintiff had stated it did not seek).
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