Mformation Technologies, Inc. v. Research in Motion Limited et al

Filing 274

ORDER by Magistrate Judge Howard R. Lloyd granting in part and denying in part 165 defendants' Motion to Compel Withdrawal of Privilege Claims. (hrllc2, COURT STAFF) (Filed on 8/9/2010)

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Mformation Technologies, Inc. v. Research in Motion Limited et al Doc. 274 1 2 3 4 5 6 7 8 9 10 NOT FOR CITATION IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION MFORMATION TECHNOLOGIES, INC., Plaintiff, v. RESEARCH IN MOTION LIMITED and RESEARCH IN MOTION CORPORATION, Defendants. / No. C08-04990 JW (HRL) ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO COMPEL WITHDRAWAL OF PRIVILEGE CLAIMS [Re: Docket No. 165] *E-FILED 08-09-2010* United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendants Research in Motion Limited and Research in Motion Corporation (collectively, RIM) move for an order compelling plaintiff Mformation Technologies, Inc. (Mformation) to withdraw allegedly improper claims of privilege.1 Mformation opposes the motion. Upon consideration of the moving and responding papers, as well as the arguments of counsel, this court issues the following order: A. Mformation's Procedural Objection Preliminarily, Mformation argues that the instant motion should be denied because RIM failed to properly meet-and-confer. See CIV. L.R. 37-1(a). The record presented indicates that After the instant motion was filed, Mformation withdrew its privilege claims as to a number of documents on its privilege log. And, RIM has withdrawn its motion as to privilege log entries 4-6, 83, 100, 110, 136, 218, 219, 222, 226, 236-239, 324, 325, 329, 500501, 581, 586-587, 660, 669, 788-797, 817, 841, 862-864, 1023, 1027-1030, 1083, 1283, 1305, 1408-1409, 1411-1412, 1414-1415, 1423-1424, 1497, 1503, 1505, 1516, 1578, 1600, 1635, 1636, 1637, 1639, 1641, 1643, 1669, 1676, and 1692. (See Docket No. 207, Reply at 2). 1 Dockets.Justia.com 1 2 3 4 5 6 7 8 9 10 the parties exchanged a number of written communications and held at least two telephone conferences. Accordingly, this court declines to deny RIM's motion on this basis. B. Common Interest Doctrine RIM's motion sought withdrawal of privilege claims as to documents that Mformation reportedly withheld on the basis of the common interest doctrine. These documents apparently included those shared with current and potential investors, as well as certain financial institutions. At the motion hearing, Mformation confirmed that it is not asserting the common interest doctrine as to any documents. Mformation also stated that it will not object to deposition questions on the basis of the common interest doctrine. Based on plaintiff's representations to the court, RIM agrees that this portion of its motion is moot. C. Attachments to Emails Sent to Third Parties (Privilege Log Entries 918, 945, 965) At oral argument, Mformation confirmed that these entries have been withdrawn from its privilege log. RIM noted that it has not yet been able to review plaintiff's document production, but stated that it will accept Mformation's representation to the court. The parties shall meet-and-confer to resolve discrepancies, if any, in Mformation's document production. RIM's motion as to these privilege log entries is denied as moot. D. Privilege Log Entries that Do Not Identify a Legal Source With respect to privilege log entries 26, 38, 499, 510, and 1375, Mformation agrees to amend them to identify the legal source of the information in question. Accordingly, RIM's motion is granted as follows: Mformation shall amend these privilege log entries to clearly identify the legal person or entity involved. Mformation's amended privilege log shall be served within 14 days from the date of this order. E. Documents Recalled in April 2010 On February 17, 2010, RIM sent Mformation a notice specifically identifying nine Mformation documents that appeared to be privileged. That letter also generally noted that other privileged documents may have been produced. Two days later, Mformation recalled the nine identified documents. Then, after having initiated another search on April 7, 2010, Mformation recalled an additional 55 documents that it claimed were privileged and had been 2 United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 inadvertently produced. RIM contends that (a) Mformation simply took too long to initiate a search for privileged documents in its production, (b) plaintiff's second recall therefore is untimely, and (c) the privilege, consequently, has been waived. A disclosure of privileged materials does not operate as a waiver if the disclosure is inadvertent; the holder of the privilege took reasonable steps to prevent disclosure; and the holder promptly took reasonable steps to rectify the error. FED. R. EVID. 502(b). Additionally, pursuant to the parties' stipulated protective order, an inadvertent production of privileged materials will not constitute a waiver "provided that the Producing Party notifies the Receiving Party in writing within ten (10) calendar days after discovery of such inadvertent production or disclosure." (Docket No. 51, 5.7). Here, defendant argues that documents are electronically stored and any privileged documents could have been readily identified by plaintiff. For its part, Mformation says that it took pains to review (a) its entire document production (comprising, this court is told, some 3.6 million pages) to identify any privileged materials that were inadvertently produced, as well as (b) its entire production process to help ensure that privileged materials would not be disclosed on a going-forward basis. Mformation says that the additional 55 documents were recalled within 9 days after it discovered that they had been inadvertently produced. (Thakur Decl. 7). Although Mformation was perhaps not as diligent as defendant would have liked, on the record presented, this court declines to find that Mformation waived the claimed privilege as to those 55 documents. Accordingly, RIM's motion on this issue is denied. SO ORDERED. Dated: August 7, 2010 HOWARD R. LLOYD United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 UNITED STATES MAGISTRATE JUDGE 3 1 2 3 4 5 6 7 8 9 10 5:08-cv-04990-JW Notice has been electronically mailed to: Aaron D. Charfoos Amardeep Lal Thakur Bradford John Black Carl John Blickle Eugene Goryunov Gina Ann Bibby Justin E. Gray acharfoos@kirkland.com athakur@foley.com, dgrimes@foley.com bradford.black@kirkland.com carl.blickle@kirkland.com egoryunov@kirkland.com gbibby@foley.com, cphillips@foley.com, mlagdameo@foley.com jegray@foley.com, dgrimes@foley.com Linda S. DeBruin ldebruin@kirkland.com, bridgett.ofosu@kirkland.com, kathleen.cawley@kirkland.com, margaret.burke@kirkland.com Marc Howard Cohen marc.cohen@kirkland.com, frank.carlow@kirkland.com, julie.bueno@kirkland.com Maria A. Maras maria.maras@kirkland.com United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Meredith Zinanni meredith.zinanni@kirkland.com, cassandra.milleville@kirkland.com, kimberly.davenport@kirkland.com Michael Anthony Parks Shawn Edward McDonald mparks@kirkland.com SEMcDonald@foley.com Counsel are responsible for distributing copies of this document to co-counsel who have not registered for e-filing under the court's CM/ECF program. 4

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