A Blog About Intellectual Property Litigation and the District of Delaware


Entries for tag: Privilege

How Common Is Your Interest?

David M. Fry, April 14, 2021
ANDA Common Interest Privilege

Earlier today, Judge Burke unsealed an interesting order addressing the applicability of the common-interest doctrine to communications between a generic pharmaceutical company and its API manufacturer.

No attorneys directly participated in most of the underlying communications, but the defendants argued that they shared "a common legal interest" with their API manufacturer in avoiding a lawsuit "and that their communications furthered that interest." Although Judge Burke found that this "argument has some initial, superficial appeal[,]" in that "the subject of these communications is in some sense legal in nature[,]" he concluded that any shared legal interest came too late:

when one contextualizes the communications with regard to what was happening in the relevant time period, Defendants have not met …
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Judge Andrews Strikes Down "Frivolous" Privilege Claims

Jeff Castellano, Dec. 8, 2020
Privilege Discovery Dispute

Last week, Judge Andrews ruled on claims of privilege by Express Mobile ("EM") in Shopify, Inc. v. Express Mobile, Inc., C.A. No. 19-439-RGA, finding that several of the claims were "frivolous," and ordering a revised privilege log and supporting lawyer declarations "so that I know who to blame should Express Mobile continue to baselessly assert claims of privilege."

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District Judge Reverses Magistrate, Orders Production of Purported Common Interest Material

Andrew E. Russell, Dec. 6, 2020
FRCP 72 Common Interest Privilege

Corporations, looking down at the tattered remains of their common interest privilege
Corporations, looking down at the tattered remains of their common interest privilege Foggy skyscrapers, Matthew Henry, Unsplash

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 …

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Court Permits Deposition Questions on Litigation Financing Arrangements

Andrew E. Russell, Oct. 5, 2020
Depositions MTC

I thought this was interesting. Last week Judge Burke granted a motion to compel a plaintiff's witness to respond on questions about the plaintiff's litigation financing arrangements.

Apparently plaintiff's attorneys instructed the witness not to answer at the deposition, but in the discovery dispute they only argued that the information is irrelevant, and did not raise privilege. Since relevance is not a valid justification for an instruction not to answer under FRCP 30, the Court permitted defendant to re-ask the question and held that plaintiff's witness must answer.

About Those Redacted Versions

I say plaintiff "apparently" objected only on reasonableness grounds because plaintiff never filed the redacted version of its sealed letter brief—a common problem.

If parties continue …

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Judge Burke Rejects Attempt to Probe Communications with Prosecution Counsel

David M. Fry, Aug. 19, 2020
Privilege

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 …

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