Elan Microelectronics Corporation v. Apple, Inc.

Filing 306

Declaration of Derek C. Walter in Support of Apple's Reply to Elan's Opposition to Motion to Compel filed byApple, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K)(Mehta, Sonal) (Filed on 6/21/2011)

Exhibit H

Page 1

IN RE JUNIPER NETWORKS, INC. SECURITIES LITIGATION; THE NEW
YORK CITY EMPLOYEES' RETIREMENT SYSTEM, et al., Plaintiffs, v. LISA C.
BERRY, Defendant.
Case No.: C 06-4327 JW (PVT),Case No.: C 08-00246 JW (PVT)
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF
CALIFORNIA, SAN JOSE DIVISION
2009 U.S. Dist. LEXIS 118859

December 9, 2009, Decided
December 9, 2009, Filed
PRIOR HISTORY: In re Juniper Networks Secs. Litig.,
264 F.R.D. 584, 2009 U.S. Dist. LEXIS 101192 (N.D.
Cal., Oct. 16, 2009)
COUNSEL: [*1] For Robert L. Garber, on behalf of
himself and all others similarly situated, Plaintiff:
William M. Audet, LEAD ATTORNEY, Audet &
Partners, LLP, San Francisco, CA; Alfred Glenn Yates,
Jr., Law Office of Alfred G. Yates Jr, P.C, Pittsburgh,
PA; Jason T. Baker, Alexander, Hawes & Audet, LLP,
San Jose, CA; Mark C. Gardy, Gardy & Notis, LLP,
Englewood Cliffs, NJ; Robert C. Schubert, Schubert
Jonckheer Kolbe & Kralowec LLP, San Francisco, CA.
For New York City Pension Funds, LEAD PLAINTIFF,
Plaintiff: Neil L. Selinger, LEAD ATTORNEY, Lowey
Dannenberg Cohen, P.C., White Plains, NY; Richard
Bemporad, LEAD ATTORNEY, David C. Harrison,
Richard W. Cohen, Lowey Dannenberg Cohen & Hart,
P.C., White Plains, NY; Barbara J. Hart, Jeanne
D'Esposito, Michael Goldklang, Sung-Min Lee, Todd S.
Garber, PRO HAC VICE, Lowey Dannenberg Cohen &
Hart, P.C., White Plains, NY; Deborah A. Rogozinski,
PRO HAC VICE, Lowey Dannenberg Cohen & Hart,
White Plains, NY; Dustin Lamm Schubert, Willem F.
Jonckheer, Schubert Jonckheer Kolbe & Kralowec LLP,
San Francisco, CA.
For Iron Workers' Local # 850, et al., Plaintiff: Mark

Cotton Molumphy, LEAD ATTORNEY, Cotchett, Pitre
& McCarthy, Burlingame, Ca.
For Jeanne M. Calamore, [*2] Plaintiff: Reed R.
Kathrein, Hagens Berman Sobol Shapiro LLP, Berkeley,
CA.
For Lowey Dannenberg Bemporad & Selinger, PC,
Consol Plaintiff: Richard Bemporad, Lowey Dannenberg
Cohen & Hart, P.C., White Plains, NY.
For Lowey Dannenberg Cohen, P.C., Lowey Dannenberg
Cohen & Hart, P.C., Consol Plaintiffs: David C.
Harrison, Lowey Dannenberg Cohen & Hart, P.C., White
Plains, NY.
For Juniper Networks, Inc., Defendant: Emily R.
Schulman, LEAD ATTORNEY, PRO HAC VICE,
Wilmar, Cutler, Pickering, Hale and Dorr, LLP, Boston,
MA; Jeffrey B. Rudman, LEAD ATTORNEY, PRO
HAC VICE, Wilmer Cutler Pickering Hale and Dorr
LLP, Boston, MA; Jonathan Acker Shapiro, LEAD
ATTORNEY, PRO HAC VICE, Wilmer Cutler Pickering
Hale and Dorr LLP, Palo Alto, CA; Nina F. Locker,
LEAD ATTORNEY, Crystal Mothershead Gaudette,
Wilson Sonsini Goodrich & Rosati, Palo Alto, CA;
Jennifer Jean Lee, Wilson Sonsini Goodrich Rosati, SF,
CA; Joni L. Ostler, Wilson Sonsini Goodrich & Rosati,
Professional Corporation, Palo Alto, CA; Kirke M.

Page 2
2009 U.S. Dist. LEXIS 118859, *2

Hasson, Robert John Nolan, Pillsbury Winthrop Shaw
Pittman LLP, San Francisco, CA; Lawrence Allen Cox,
Arnold & Porter, Los Angeles, CA; Scott B. Schreiber,
PRO HAC VICE, Arnold & Porter LLP, Washington,
[*3] DC; Steven Guggenheim, Wilson Sonsini et al, Palo
Alto, CA.
For Marcel Gani, William R. Hearst, III, Scott Kriens,
Stratton Sclavos, Pradeep Sindhu, William R. Stensrud,
Defendants: Crystal Mothershead Gaudette, Wilson
Sonsini Goodrich & Rosati, Palo Alto, CA; Jennifer Jean
Lee, Wilson Sonsini Goodrich Rosati, SF, CA; Joni L.
Ostler, Wilson Sonsini Goodrich & Rosati, Professional
Corporation, Palo Alto, CA; Steven Guggenheim, Wilson
Sonsini et al, Palo Alto, CA.
For Robert M. Calderoni, Kenneth Goldman, Vinod
Khosla, Kenneth Levy, Defendants: Crystal Mothershead
Gaudette, Joni L. Ostler, Wilson Sonsini Goodrich &
Rosati, Palo Alto, CA; Jennifer Jean Lee, Wilson Sonsini
Goodrich Rosati, SF, CA; Steven Guggenheim, Wilson
Sonsini et al, Palo Alto, CA.
For Ernst & Young LLP, Defendant: David Michael
Friedman, LEAD ATTORNEY, Viviann C Stapp,
Latham & Watkins, LLP, San Francisco, CA; Patrick
Edward Gibbs, LEAD ATTORNEY, Andrew Milton
Farthing, Latham & Watkins LLP, Menlo Park, CA;
Peter Allen Wald, LEAD ATTORNEY, Latham &
Watkins, San Francisco, CA.
For Lisa C. Berry, Consol Defendant: James Neil
Kramer, Melinda Haag, Rebecca Felice Lubens, LEAD
ATTORNEYS, Nancy E. Harris, Orrick, Herrington [*4]
& Sutcliffe, LLP, San Francisco, CA; Mozhgan Saniefar,
LEAD ATTORNEY, Orrick Herrington & Sutcliffe, San
Francisco, CA.
For Hirro Hadjeri, Movant: Patrice L. Bishop, LEAD
ATTORNEY, Stull, Stull & Brody, Los Angeles, CA.
For Boston Retirement Board, Movant: Michael M.
Goldberg, Glancy & Binkow LLP, Los Angeles, CA;
Peter Arthur Binkow, Glancy Binkow & Goldberg LLP,
Los Angeles, CA.
For Erste-Sparinvest Kapitalanlagegesellschaft m.b.H.,
Movant: Joseph M. Barton, LEAD ATTORNEY, Corte
Madera, CA.
For Artisan Partners Limited Partnership, Consol 3rd Pty

Dft: Jon Michaelson, K&L Gates LLP, Palo Alto, CA.
For Morgan Stanley, Interested Party: Eric Gregory
Wallis, Reed Smith Crosby Heafey LLP, Oakland, CA.
For Barclays Global Investors, N.A., Miscellaneous:
Jennifer Lloyd Kelly, Fenwick & West LLP, San
Francisco, CA.
For Brienne Fisher, Miscellaneous: Zesara C. Chan,
LEAD ATTORNEY, Felicia Ann Draper, Shartsis Friese
LLP, San Francisco, CA.
JUDGES: PATRICIA V. TRUMBULL, United States
Magistrate Judge.
OPINION BY: PATRICIA V. TRUMBULL
OPINION
ORDER
RE
PARTIES'
MID-DEPOSITION
DISPUTE
REGARDING
ASSERTION
OF
ATTORNEY-CLIENT PRIVILEGE AND WORK
PRODUCT PROTECTION
On November 4, 2009, this court issued an interim
order soliciting additional [*5] briefing to be submitted
by Lead Plaintiff and the Audit Committee of the Board
of Directors of Juniper Networks, Inc. (the "Audit
Committee") regarding privilege and work product
objections to deposition questions regarding what
non-party deponent Brienne Fisher told the Audit
Committee when it interviewed her. Lead Plaintiff and
the Audit Committee have now submitted the additional
briefs and declarations. Based on all briefs and
declarations submitted by the Lead Plaintiff and the Audit
Committee, and the file herein,
IT IS HEREBY ORDERED that the motion for
protective order filed by the Audit Committee is
DENIED, and its privilege and work product objections
are OVERRULED for the reasons stated herein.
IT IS FURTHER ORDERED that Lead Plaintiff's
motion to compel the deposition testimony is
GRANTED. The parties and non-party Fisher shall
promptly meet and confer to set a date for the resumption
of Fisher's deposition in order to answer questions about
the communications that occurred during the Audit
Committee's interview of Fisher.

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2009 U.S. Dist. LEXIS 118859, *5

I. THE INFORMATION
PRIVILEGED

SOUGHT

IS

NOT

The attorney-client privilege is strictly construed,
because it impedes full and free discovery of the truth.
[*6] See Weil v. Investment/Indicators, Research &
Management, 647 F.2d 18, 24 (9th Cir. 1981).
Attorney-client communications in the presence of a third
party who is not the agent of either are generally not
protected by the privilege. See Weatherford v. Bursey,
429 U.S. 545, 554 n. 4, 97 S. Ct. 837, 51 L. Ed. 2d 30,
(1977) (citing 8 J. Wigmore, Evidence s 2311, pp.
601-602 (McNaughton rev. ed.1961)). Moreover, the
voluntary disclosure of a privileged attorney
communication to a third party constitutes waiver of
privilege. Weil, 647 F.2d at 24.
The "joint defense" or "common interest" doctrine is
"an extension of the attorney client privilege." See Waller
v. Financial Corp. of America, 828 F.2d 579, 583 n. 7
(9th Cir. 1987).
"It serves to protect the confidentiality of
communications passing from one party to
the attorney for another party where a joint
defense effort or strategy has been decided
upon and undertaken by the parties and
their respective counsel. Only those
communications made in the course of an
ongoing common enterprise and intended
to further the enterprise are protected. 'The
need to protect the free flow of
information from client to attorney
logically exists whenever multiple clients
share a common [*7] interest about a
legal matter,' and it is therefore
unnecessary that there be actual litigation
in progress for the common interest rule of
the attorney-client privilege to apply." See
U.S. v. Schwimmer, 892 F.2d 237, 243-44
(2nd Cir. 1989) (citations omitted).

The burden of establishing that the "joint defense" or
"common interest" doctrine applies is on the party
asserting the privilege. See, e.g., U.S. v. Bay State
Ambulance and Hosp. Rental Service, Inc., 874 F.2d 20,
29 (1st Cir. 1989). Among other things, the party
asserting the a claim resting on the common interest
doctrine must show that "the communication in question

was given in confidence and that the client reasonably
understood it to be so given." See U.S. v. Schwimmer, 892
F.2d at 244 "It is fundamental that the 'joint defense
privilege cannot be waived without the consent of all
parties to the defense.'" See John Morrell & Co., 913
F.2d 544, 555-56 (8th Cir. 1990). 1
1 The Audit Committee makes much of the fact
that the employer in Morrell was able to
unilaterally waive privilege as to four otherwise
protected documents that it had turned over to the
employee class. However, those documents were
created by the employer [*8] prior to--and
separate and apart from--the common interest
communications that occurred between the
employer and the employee class and their
attorneys. Different rules apply to waiver with
regard to pre-existing privileged documents that
are shared in the course of joint defense or
common interest endeavors than apply to
communications that occur during a joint defense
or common interest meeting itself.
As to the pre-existing privileged documents
that are shared in the course of joint defense or
common interest endeavors, the original holder of
the privilege for such documents naturally retains
the right to waive the privilege. See Morrell, 913
F.2d at 555-56.
With regard to communications that actually
occur during a joint defense or common interest
meeting, all parties must agree to any waiver of
the privilege. Otherwise, for example, a criminal
defendant could decide after the fact to testify at
trial as to admissions made by his co-defendant
during their joint defense meetings. That is not the
law. See, United States v. McPartlin, 595 F.2d
1321, 1336 (7th Cir. 1979) ("McPartlin was
entitled to the protection of the attorney-client
privilege, because his statements were made in
confidence [*9] to an attorney for a co-defendant
for a common purpose related to both defenses").
Thus, if the Audit Committee's interviews with
Juniper's employees and former employees were
protected by the common interest doctrine, it
would have been required to obtain the
employees' consent before disclosing to a third
party, such as its outside auditors or the SEC, the
substance of the statements made by those

Page 4
2009 U.S. Dist. LEXIS 118859, *9

employees during the interviews.
In the present case, the Audit Committee has not
carried its burden of establishing that the communications
that occurred during the Audit Committee's interview of
Fisher were privileged. The communications occurred in
the presence of Fisher's attorney (a third party who was
not the agent of either Juniper or its attorneys), and the
Audit Committee has not shown that the "joint defense"
or "common interest" doctrine applies.
Fisher's statements during her interview with the
Audit Committee do not appear to have been made in the
course of an "ongoing common enterprise" 2 between
Fisher and the Audit Committee. The fact that Fisher may
have had some legal interests that were similar to the
Audit Committee's legal interests is insufficient to show
that a joint [*10] strategy was actually decided upon and
undertaken by her, the Audit Committee and their
respective counsel. Moreover, the fact the Audit
Committee expressly informed Fisher that it could waive
the privilege (which it erroneously assumed would attach
to the communications) demonstrates that there was no
such common enterprise. On the contrary, the Audit
Committee claimed the exclusive right to decide whether
or not to disclose information from the interview to
others. The Audit Committee's express reservation of the
right to disclose Fisher's statements to others shows that
Fisher had no reasonable expectation that her statements
would be kept confidential. Absent such an expectation
of confidentiality, no common interest based privilege
attached. See U.S. v. Schwimmer, 892 F.2d at 244.
2 In Hewlett-Packard Co. v. Bausch & Lomb,
Inc., 115 F.R.D. 308, 311 (N.D. Cal. 1987), relied
on by the Audit Committee, did involve an actual
"common enterprise" -- the negotiations for a
potential sale of a division of one company to
another company. The court held that disclosure
of a privileged attorney opinion letter to the
potential buyer did not waive the privilege
because the disclosure was necessary [*11] to the
sale negotiations. No such common enterprise has
been shown in the present case. Moreover, that
case involved a pre-existing privileged document
rather than communications that occurred during a
joint defense or common interest meeting.
In any event, even if the attorney-client privilege
initially attached to the communications, the Audit
Committee's disclosure of the substance of the

communications to Juniper's outside auditors effected a
waiver of the privilege. See Weil v. Investment/Indicators,
Research & Management, 647 F.2d at 24; see also, U.S.
v. Ruehle, 583 F.3d 600, 612 (9th Cir. 2009) ("any
voluntary disclosure of information to a third party
waives the attorney-client privilege"). The cases cited by
the Audit Committee all involved a finding of no waiver
of work product protection, not attorney-client privilege.
In fact, in Merrill Lynch & Co. v. Allegheny Energy, Inc.,
229 F.R.D. 441 (S.D.N.Y. 2004), Merrill Lynch
conceded that disclosure of otherwise privileged
information to its independent auditors waived the
attorney-client privilege. See, id. at 444.
II. THE AUDIT COMMITTEE HAS NOT
ESTABLISHED THAT INFORMATION SOUGHT
IS PROTECTED WORK PRODUCT
With regard to the [*12] assertion of work product
protections, the Audit Committee has not shown that the
interview occurred in anticipation of litigation. The Audit
Committee submitted no declarations showing that the
purpose of its interviews was in any way related to
litigation. Its entire factual showing amounts to nothing
more than pointing out that litigation was pending at the
time the interview occurred. However, the mere fact that
a company has a committee conduct an investigation at
the same time that litigation is pending is insufficient to
show that the purpose of the investigation is in any way
connected to the litigation.
As Lead Plaintiff points out, work product protection
is available only for information that would not have
been generated "but for" litigation. See Kintera, Inc. v.
Convio, Inc., 219 F.R.D. 503 (S.D.Cal 2003), quoting
Kelly v. City of San Jose, 114 F.R.D. 653, 659 (N.D.Cal.
1987). As the court explained in Kelly,
"The work product doctrine does not
apply to information collected or
communications made in the normal
course of business. It applies only to
material generated primarily for use in
litigation, material that would not have
been generated but for the pendency or
imminence [*13] of litigation." See Kelly
v. City of San Jose, 114 F.R.D. at 659,
citing Hickman v. Taylor, 329 U.S. 495,
67 S. Ct. 385, 91 L. Ed. 451 (1947).

Page 5
2009 U.S. Dist. LEXIS 118859, *13

There is no evidence in the record that the Audit
Committee would not have interviewed Fisher "but for"
the pending litigation, or that the Audit Committee has or
had any role at all with regard to the pending litigation.
Thus, there is no basis for a finding that the Audit
Committee is anything other than an "audit committee"
within the meaning of 15 U.S.C. section 7201(3), or that
it has any purpose other than a business purpose of
overseeing Juniper's accounting and financial reporting
processes and Juniper's audits of its financial statements.
See 15 U.S.C. § 7201(3). Thus, work product protection

does not apply, and the work product objection is
overruled.
Dated: 12/9/09
/s/ Patricia V. Trumbull
PATRICIA V. TRUMBULL
United States Magistrate Judge