Elan Microelectronics Corporation v. Apple, Inc.

Filing 327

Letter from Jared Bobrow Regarding July 5, 2011 Hearing on Apple's Motion to Compel and Elan's Supplemental Privilege Logs. (Bobrow, Jared) (Filed on 7/6/2011)

201 Redwood Shores Parkway
Redwood Shores, CA 94065-1134
[phone] tel
[phone] fax

Weil, Gotshal & Manges LLP

Jared Bobrow
650-802-3034
[e-mail]

July 6, 2011
The Honorable Paul Singh Grewal
280 South First Street
Courtroom 5, 4th Floor
San Jose, CA 95113
Re:

Elan v. Apple, C-09-01531 RS (PVT)

Dear Judge Grewal:
I write in response to Elan’s July 6, 2011 letter regarding the supplemental privilege logs it
submitted just days before the parties’ July 5, 2011 oral argument on Apple’s motion to compel. In its
letter, Elan argues that in camera review of the withheld documents is not necessary because Elan’s last
minute revisions to the logs allegedly “resolve” any privilege issues. Dkt. No. 325 at 2. The premise
behind Elan’s position—that it should be taken at its word on these issues—is not well taken.
The timing and content of Elan’s revised privilege logs strongly suggest that the entries simply
are not credible. It was only after Apple moved to compel that Elan changed its position and concluded
that roughly 600 documents that it previously logged as privileged were, in fact, not privileged.
Moreover, it was only after Apple filed its motion and demonstrated that Elan had failed to show
involvement by U.S. attorneys that Elan “revised” the logs to state that U.S. lawyers were involved. For
example, in its July 2010 privilege log, Elan described Item 404 as “Document prepared at direction of
Elan legal department and/or counsel in anticipation of litigation and/or for purposes of
seeking/providing legal advice.” One year later, in response to Apple’s motion, Elan changed the
description to state unequivocally that a U.S. attorney was involved: “Document prepared under the
instruction of U.S. counsel for purposes of conducting infringement analysis on Synaptics’ U.S. patents
in anticipation of the Elantech v. Synaptics litigation.” Those descriptions differ significantly, and the
differences suggest that the log entries simply are not credible.
In any event, Elan is wrong that its revised privilege logs adequately substantiate a claim of
privilege. Indeed, as noted during oral argument, Elan’s revised privilege logs still fail to identify by
name even a single attorney that was involved in or that requested any of the disputed communications
that Elan continues to withhold. In this regard, Elan’s revised privilege log entries fail to include even
the most basic information to back up a privilege claim. Therefore, in Apple’s view, Elan has failed to

Hon. Paul Singh Grewal
July 6, 2011
Page 2

Weil, Gotshal & Manges LLP

establish a prima facie claim of privilege and the documents on which Apple moved to compel should
be produced. At the very least, Apple respectfully requests that the Court conduct an in camera review
of the categories of documents discussed at yesterday’s hearing.
Respectfully submitted,

/s/ Jared Bobrow
Jared Bobrow