Powertech Technology Inc v. Tessera, Inc.

Filing 168

ORDER by Judge Claudia Wilken DENYING 157 MOTION FOR RELIEF FROM NONDISPOSITIVE PRETRIAL ORDER. (ndr, COURT STAFF) (Filed on 10/4/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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POWERTECH TECHNOLOGY, INC.,

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United States District Court
For the Northern District of California

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Plaintiff,

No. C 11-6121 CW
ORDER DENYING
MOTION FOR RELIEF
FROM
NONDISPOSITIVE
PRETRIAL ORDER
(Docket No. 157)

v.
TESSERA, INC.,
Defendant.
________________________________/

Plaintiff Powertech Technology, Inc. (PTI) moves for relief

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from a nondispositive discovery order of the Special Master issued

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on September 5, 2012.

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objections de novo and DENIES PTI’s motion for relief.

Docket No. 157.

The Court considers PTI’s

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PTI objects to the Special Master’s order on three bases.

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First, PTI challenges the order that it provide further deposition

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testimony from C.C. Liao, D.K. Tsai and P.C. Lee and an unredacted

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transcript of Mr. Lee’s deposition testimony.

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testimony at issue was protected under the common interest

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doctrine because it concerned a privileged communication with

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non-party Elpida.

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itself, but instead is an exception to the general rule of waiver

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when privileged communications are disclosed to third parties.

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Nidec Corp. v. Victor Co., 249 F.R.D. 575, 578 (N.D. Cal. 2007).

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“‘The common interest privilege . . . applies where (1) the

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communication is made by separate parties in the course of a

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matter of common [legal] interest; (2) the communication is

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designed to further that effort; and (3) the privilege has not

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been waived.’”

PTI argues that the

The common interest doctrine is not a privilege

Id. (quoting United States v. Bergonzi, 216 F.R.D.

487, 495-96 (N.D. Cal. 2003) (formatting in original).

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course, since it is an anti-waiver exception, it comes into play

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only if the communication at issue is privileged in the first

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instance.”

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the material is privileged, has not identified any privileged

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material that was put in issue by the deposition questions and

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testimony.

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recently-produced privilege log were protected by attorney-client

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privilege and the work product doctrine, it has not shown that

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United States District Court
For the Northern District of California

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these particular documents were the subject of the testimony at

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issue.

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privileged material does not mean that all of their communications

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concerned such material.1

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the existence of any underlying privilege with respect to the

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deposition testimony and questions.

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Id.

“Of

PTI, who bears the burden of establishing that

Although PTI contends that certain documents in its

That PTI and Elpida may have communicated about some

Accordingly, PTI has not demonstrated

Second, PTI contends that it should not be required to

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identify and produce the documents used to refresh Mr. Lee’s

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recollection.

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options to an adverse party when a witness uses a writing to

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refresh memory before testifying, if the court decides that

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justice requires the party to have those options.

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612(a)(2).

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inspect it, to cross-examine the witness about it, and to

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introduce in evidence any portion that relates to the witness’s

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testimony.

Federal Rule of Evidence 612 provides certain

Fed. R. Evid.

These options include to have the writing produced, to

Fed. R. Evid. 612(b).

The testimony at issue is

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In this Order, the Court expresses no opinion as to whether
the documents identified in the privilege log were withheld
properly.
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central to the disputed issues in this case.

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justice requires that Tessera be allowed the opportunity to cross-

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examine Mr. Lee regarding any discrepancies between his memory and

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the writings.

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selection of documents to refresh Mr. Lee’s memory, as opposed to

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the documents themselves, is itself privileged information, the

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options set forth in Rule 612 necessarily require that the

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documents be identified and PTI waived any privilege that might

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exist over its selection by using the documents to refresh Mr.

United States District Court
For the Northern District of California

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The interest of

Further, to the extent that PTI argues that its

Lee’s recollection.
Finally, PTI argues that it should not be required to produce

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a “full privilege log” by a date certain while Defendant Tessera,

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Inc. has no corresponding deadline to complete its privilege log.

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However, the Special Master’s order did not require PTI to provide

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a full privilege log by a date certain; instead, it required PTI

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to do so only for documents withheld in reliance on the common

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interest doctrine.

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IT IS SO ORDERED.

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Dated:

10/4/2012

CLAUDIA WILKEN
United States District Judge

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