Leader Technologies Inc. v. Facebook Inc.

Filing 248

ORDER re discovery; briefing on the assertion of privilege shall take place on 3/1/10 (opening), 3/8/10 (answering) and 3/10/10 (reply); oral argument will be held on 3/12/10 at 3:30 pm in courtroom 6C. Signed by Judge Leonard P. Stark on 2/22/10. (ntl) (ntl). Modified on 3/3/2010 (ntl).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
Leader Technologies Inc,
Plaintiff,
Civ. No. 08·862-JJF-LPS

v.
Facebook Inc.,
Defendant.

ORDER
At Wilmington this 22nd day of February, 2010,
The Court, having reviewed the documents submitted by Leader in camera, concludes as
follows:
1.

As represented by Leader, the two "Neyer" documents (Exhibit I: Neyerl03 and

Exhibit 2: Neyer208-18) are logged as entries 386 and 317, respectively, on Leader's original
privilege log of November 20, 2009.
2.

With respect to the "IP Investments" documents that are logged on Leader's

supplemental privilege log of January 15,2010, Leader has apparently redacted information on
two distinct bases. First, it has redacted information as "Redacted Not Relevant." See, e.g.,
IPll 01, IPI 104, IPI 108-09. Each of these redactions solely relates to concerns of IP Investments,
not Leader. As such, all of the information in the IP Investments documents which Leader has
redacted as "Redacted Not Relevant" is, in fact, not relevant to this litigation. Second, Leader
has redacted other information simply as "Redacted." See, e.g., IPIlI7, IPll72, IPI184. It
appears that Leader has used the "Redacted" designation when it has redacted information
relating to Leader's assessment of its proposed litigation against Facebook. It is the Court's

understanding that these redactions are based on Leader's assertion of a "common interest" or
"joint defense" privilege which Leader believes exists between it and third-party potential
sources of financing for the instant litigation.
3.

Leader has accurately and carefully distinguished among its redactions of the IP

Investment documents between those that are plainly not relevant (marked "Redacted Not
Relevant") and those that are arguably relevant but for which Leader asserts a privilege (marked
"Redacted"). The Court further understands that the IP Investment e-mails that appear on
Leader's supplemental privilege log did not appear on Leader's original privilege log because
Leader has taken the position that all communications with third parties regarding potential
financial arrangements with respect to litigation to enforce the patent-in-suit are not relevant.
4.

The Court requires additional assistance from the parties in order to reach a

decision as to whether Leader's assertion of a "common interest" or "joint defense" privilege is
legally applicable to the instant circumstances. Accordingly, IT IS HEREBY ORDERED THAT
the parties shall file briefs and appear for argument as follows:
a)

Leader's opening brief in support of its assertion of privilege, not to
exceed 15 pages, is due by March 1, 20 I O.

b)

Facebook's answering brief opposing Leader's assertion of privilege, not
to exceed 15 pages, is due by March 8, 2010.

c)

Leader's reply brief in support of its assertion of privilege, not to exceed 5
pages, is due by March 10, 2010.

d)

Oral argument with respect to Leader's assertion of privilege will be held
on March 12,2010 at 3:30 p.m. in Courtroom 6C.

5.

This Order has been filed under seal. The parties are to meet and confer and

provide the Court with a proposed publicly available version ofthis Order no later than February
25, 2010. The Court will release a publicly available version of this Order thereafter.
Delaware counsel are reminded of their obligations to inform out-of-state counsel ofthis
Order. To avoid the imposition of sanctions, counsel shall advise the Court immediately of any
problems regarding compliance with this Order.