Performance Pricing, Inc. v. Google Inc. et al

Filing 241

MOTION to Compel Production of Documents by Third Parties Neal Cohen and Vista IP Law Group, LLP by AOL LLC, Google Inc.. (Attachments: # 1 Joint Stipulation Regarding Defendant Google Inc. and AOL LLC's Motion to Compel Production of Documents by Third Parties Neal Cohen and Vista IP Law Group, LLP, # 2 Declaration of Emily C. O'Brien in Support of Motion to Compel, # 3 Exhibit A, # 4 Exhibit B, # 5 Exhibit C, # 6 Exhibit D, # 7 Exhibit E, # 8 Exhibit F, # 9 Exhibit G, # 10 Exhibit H, # 11 Exhibit I, # 12 Exhibit J, # 13 Exhibit K, # 14 Exhibit L, # 15 Exhibit M, # 16 Exhibit N, # 17 Exhibit O, # 18 Exhibit P, # 19 Declaration of Christin Cho in Opposition to Motion to Compel, # 20 Errata 1, # 21 Exhibit 2, # 22 Exhibit 3, # 23 Proposed Order Granting Defendant Google Inc. and AOL LLC's Motion to Compel)(O'Brien, Emily) Modified on 9/25/2009 (sm, ). Modified on 9/25/2009 (sm, ).

Performance Pricing, Inc. v. Google Inc. et al

Doc. 241 Att. 1

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l QUINN EMANUEL UR^UHART OLIVER & HEDGES, LLP Charles K. Verhoeven { ar No. 170151) charlesverhoeven qutnnemanuel.com 2 David A Perlson^$ar No. 209502) davidppe^Isv^@quinnemanuel.com 3 Jennifer A: I{ash (Bar No. 203 679) enniferkash^qumnemanueLcom 4 5 ^ C a lifornia reef, 22nd F l oar S San Francisco, California 941 i 1 Telephone: [phone] Facsimile: {415) 875=6700 7 Attorneys for Defendant Google Inc. and AOL LLC 8 DOVEL & LUNER LLP Greg Dovel (Bar No. 135387) 9 greg doveIlaw.com Ch as i n Cho (B ar N o. 238173) la christen^adovellaw.com . li 201 Santa JVlonica Boulevard, Suite 600 Santa Monic California 90401 12 Telephone: ^ 10 656-706b F acsim il e: ^310^ 656 -- 7069 13 Attorneys for Neal Cohen and Vista IP _ 14 Law Group, LLP 15 16 '' 17 18 PERFORMANCE PRICING, INC., 19 20 21 22 23 24 25 26 27 28
O ID02 .S l3DSI3060451.1

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CV09 -6283 GAF (CTx)

Plaintiff,
vs. GOGGLE INC. and AOL LLC,

DISCOVERY MATTER 'JOINT STIPULATION REGARDING DEFENDANT GOGGLE INC. AND AOL LLC'S MOTION TO COMPEL .PRODUCTION OF DOCUMENTS BY THIRD PARTIES NEAL COHEN AND VISTA IP LAW GROUP, LLP -

Defendants.

.IOINT STIPULATION ^E: DEFENDANT GOGGLE INC. AND AOL LLCS MOTION TO COMPEL PRODUCTION

Dockets.Justia.com

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TABLE OF CONTENTS
Page

4 DEFENDANTS' PRELIMINARY STATEMENT ..................................................... I 5 FACTUAL AND PROCEDURAL BACKGROUND ................................................ 1 6 I. 7 II. COHEN'S FIRST FOUR PRIVILEGE LOGS CONTAINEDIMPROPER ASSERTIONS OF WORK PRODUCT PROTECTION............ 2 COHEN ADDS NEW ATTORNEY-CLIENT PRIVILEGE CLAIMS AND REMOVES WORK PRODUCT PROTECTION CLAIMS ...................3

9 LOCAL RULE 37-1 PRE-FILING CONFERENCE OF COUNSEL ........................4 10 COHEN'S INTRODUCTORY STATEMENT .................:.........................................4 11 FACTUAL AND PROCEDURAL BACKGROUND ................................................ 4 12 ARGUMENT ................^--...................................._......_........---------...-.--..............13 I. 14 II. 15 16 B_ l7 18 C. 19 20 21 III. 22 A. 2^1 24^ 25 26
3. The size of the production weighs against Ending waiver ..._ ..... 15 privilege is not expressly claimed .......-· ............................................ .... 10

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COHEN'S PRIVILEGE LOG ENTRIES AT ISSUE .......................................6 DEFENDANTS' POSITION ....................................................................... ......6 A_ Law demonstrates that the Court should grant Defendants'
motion to coz-npel the production of documents ............................... ...... 6

Cohen waived attorney-client privilege for a number of
documents by failing to ex ressly claim it, only to claim it later to mask i mp roper c l aims o f- w o rk pro d uc t protec t ion ....................... ...... 8

Withholding documents does not preserve privilege , where that

D.

Defendants ' proposal to resolve the issue at the conference of counsel ............................................................................................... .... 10

COHEN'S POSITION ...................·---...............----................------------..:........ .... ll Controlling Ninth Circuit law ........................................................... .... ll 1. 2. The objections here enable the litigant and the court to evaluate the claun of privilege .................·--------.................---......12 The timeliness of the objection and accompanying information weigh against waiver ......................................... ..... i2

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01002.513a5l3060451.1 _j.. .^OENT STIPULATION R£: DEFENDANT GOOGLE INC. AND AOL LLC`S MOTION TO COMPEL PRODUCTION

The other circumstances weigh against waiver . ......:............. ..... l5

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O1002 . 513D5f3060451.1

DEFENDANTS' CONCLUSION .............................................................................. 16 COHEN'S CONCLUSION ........................................·--...--------------------..................._..16 APPENDIX ...................................................^---------------^.._............................--------..... 18

JOINT STIPULATION RE: DEFENDANT GOGGLE iNC. AND AOL LLC'S MOTION "1'O COMPEL PCLODUCTiON

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Pursuant to Fed. R. Civ. P. 37 {a} and Local Rule 37-2.1, Defendants Google

2 j Inc. and AOL LLC ("Defendants "} and Third Parties Neal Cohen and Vista IP Law 3

Group, LLP {collectively "Cohen ")submit the following j oint stipulation regarding

4 Defendants ' Motion to Compel Production of Documents by Cohen. 5

DEFENDANTS' PRELXMXNARY STATEMENT Courts have held that the failure to expressly make a claim of privilege results

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7 in the waiver of that privilege, in particular where the addition of a claim of S attorney-client privilege or work product protection is made to avoid the production 9 of documents. This is exactly what happened here. For the documents at issue in 10 this motion, Cohen either raised for the first time, or re-raised claims of attorney-11 client privilege after previously dropping them, only after Defendants had objected I2 to Cohen's ur^proper work product claims. This conduct-plainly aimed to avoid 13 production of documents with a tardy claim ofprivilege-waived any attorney14 client privilege because Cohen was required to claim that privilege consistently, and 15 at the outset. Cohen should be required to produce these documents for which 16 attorney-cli^tit privilege was waived. 17 181
Factual and Procedural Bac round On September 27, 2007, Performance Pricing, Inc . brought a patent

19^'^ infringement action in the Eastern District of Texas against Defendants.l

20

Performance Pricing, lnc. is a subsidiary of Acacia Patent Acquisition Corporation,

21 which is itself a subsidiary of Acacia Research Corporation, created by Acacia in 22 order to license and enforce the patent-at-issue. Ferformance Pricing alleges that 23 Defendants infringe various claims of United States Patent No_ b,97S,253, titled 24 "Systems and Methods for Transacting Business Over A Global Communications 25 26 ^ Plaintiff also brought claims in this action against A9.com, Inc., Yahoos Inc., Microsoft Corporation, and IAC Search & Media, inc. All other defendants have 27 since been dismissed. 28
O 5002.5130513060451,1 a, --- --IOINT STIPULATION RE: DEFENDANT GOOGLS INC. AND AOL, LLC'S MOTION TO COMPEL PRODLICI70A

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Network Such as the Internet ," U.S. Patent No. b,978,253 issued to named i nventor
Wayne Lin on December 20, 2005. Neal Cohen prosecuted the patent. I. COHEN'S FIRST FOUR PRIVILEGE LOGS CONTAINED CTION.

On October 22, 2008, Defendants served subpoenas on Mr. Cohen and his

6 Iaw firm, Vista IP Law Group, LLP. (Declaration of Emily C. O'Brien {"O'Brien 7

Dec."), Exs. A-B.} On November 7, 2008, Neal Cohen and Vista (collectively

8' "Cohen"} submitted a joint privilege log for documents withheld from praduciion. 9 {Id., Ex_ C.) This log had several deficiencies, including lumping multiple i0 documents into a single entry. {Icy) Cohen also asserted work product protection 11 for every entry in the log even though the log provided no suggestion these

12 documents were prepared in anticipation of litigation. {Icy ) 13

On November 25, 200$, Defendants requested that Cohen address these and

14 other privilege log deficiencies . (Id., Ex. D.) On January 9, 2009, Plaintiff's 15

counsel served a supplemental Cohen privilege log that continued to improperly claim work product protection for all documents, with no information regarding the

16
18

I7 specific litigation for which these documents were allegedly created. {Icir , Ex. E_)
Defendants then took the deposition of Mr. Cohen on February 11. (Icy, Ex.

I9 F.) Cohen admitted that he was not aware of ^ specif c anticipated litigation

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during the prosecution of the patent-at-issue and that he had not done any work on

21' any litigation for Mr. Lin other than appearing at the deposition. {IcI at 2 ].:5-9, 22 22:1-20.)

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After Mx. Cohen's deposition, Plaintiffs counsel assured Defendants that a

24 third privilege log would address the improper designation of documents as 25 protected under the work product doctrine. (I^r^ , Ex. G at 2) It did not. Cohen's 2b only concession was to remove the improper assertion of work product from three 27 ^, documents, and replace it with claims ofattorney-client privilege for two of those 28 documents. (Icy' , Ex. H at 26_) At the same tilne, he added belated claims of
016D2 .51305f3964451.1 ^^ dOII+IT STIPULA'170N Rs : DEFENDANT-GOQGLE INC_ AND AOL LLC'S MOTION TO COI^tP>;L PROD[fCTION

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11 attorney-client privilege for some docut^ents, and removed attorney-client privilege 2^ for other documents. (Id, at 6, 14-15.)
3 After Defendants again complained regarding Cohen's improper work product

4 assertion, Plaintiff s counsel provided a fourth log with nine documents that had 5 previously been withheld removed and produced. (Id, Ex. l; Ex. J at 21, 35-6.} 6 II. 7

COHEN ADDS NEW ATTORNEY-CLIENT PRIVILEGE rr.AlMfi

On May 18, Plaintiff's counsel produced yet another revised Cohen privilege
9 log. {Id, Ex. K.) For all documents in the fourth privilege log where he had only

la claimed work product protection, Cohen added new claims ofattorney-client 11 privilege, or re-raised claims previously withdrawn, in his fifth privilege log. (See, 12 e.g., icy at 14-15, 17, 24-5, 27-8, 3 1, 35-6.) 1-Ie simultaneously removed claims of 13 work product protection for many of these documents. (Id } However, Cohen 14 continued to claim work product protection for other documents that were not 15 entitled to the protection. (See, e.g., id at 6, 16-18, 20, 3 l.) i6
Defendants' counsel responded to this revised log on May 22, pointing out the

17 privilege log's continued deficiencies, including the continuing improper assertions 18 of work product protection. (ld., Ex. L.} On May 29, Plaintiff's counsel produced 19 yet another revised Cohen privilege log. (Id., Ex. M.} In that sixth log, Cohen 20 removed his assertion of work product protection for all documents except for one, 21' but maintained his claims ofattorney-client privilege. {Id) 22Defendants' counsel and Plaintiff s counsel conducted a meet and confer on

23 June 4, and Defendants followed up by letter on June S_ {Id., Ex. N.) Defendants 24 indicated that attorney-client privilege had been waived for all documents where 25 Cohen had failed to timely assert the privilege in earlier logs, or had removed and 26 then tried to reclaim the attorney-client privilege. Defendants demanded production 27 of all documents where attorney-client privilege had been waived. (Id) 1'laintifFs 28 ^ counsel refused.
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On June [2, Plaintiffs counsel produced one additional document and served

2 a seventh Cohen privilege log that continued to assert attorney-client privilege for 3 documents where the privilege was waived. {Id, Ex. O.) The parties were thus at

4 an impasse regarding this issue. S 6 Local Rule 37-1 Pre-fling Conference of Counsel Pursuant to Local Rule 37-1, the parties conducted apre-filing conference of

7 counsel by letter (June 8, 2009) and telephonically (June 4, 2009). (Id., Ex. N.} S 9 i0 11 COHEN`S INTRODUCTORY STATEMENT ractYia [ and Procedural Baclcl; rouncl The subject of this litigation is U.S_ Patent No. 6,978,253 (the `2S3 patent), which describes a method for "conducting business transactions over the Internet,

l2 allowing buyers to reduce the price of the selected productlservice based on the I3 buyer's performance during a collateral activity" Plaintiff Performance Pricing, I4 which is the exclusive licensee with all substantial rights in the invention, asserts lS that Google's AdWords system infringes the `253 patent. 16 Neal Cohen is an attorney with Vista IP Law Group. His practice includes

l7 both patent prosecution and litigation. He was hired by Wayne Lin, the inventor of I$ the `2S3 patent, to prosecute the `253 patent. [n addition to prosecuting the patent, 19 Mr. Lin also consulted with Mr. Cohen regarding litigating the patent claims against 20 infringers, including specifically against Google. See exh. F at 21: l4- l$, 22:5-20 21 (stating that work done for Lin included work done "in anticipation of some

22 litigation"}.
23 On October 22, 2008, Defendants served subpoenas on Mr. Cohen and Vista

24 IP Law Group (collectively "Cohen"). IVIr. Cohen and Vista timely submitted a

25 joint privilege log that listed each document withheld from production. The log 2b listed the dates of the documents (with the exception of certain documents that had 27 multiple dates}, the author{s), the recipient{s}, a description of the documents, and 28 the pnvilege(s} claimed. See exh. C. The documents were not listed separately, but
Qt002 ,5 t3U5I3t)60451.t .1 JOINT STIPULATION RE. DEFENDANT' GOGGLE INC. AND ADL LLC'S MOT10N T'O COMPEL PRODUCTION

1 instead listed in groups for the folders under which they were found. Id Ninety2 seven docuiT^ent folders were listed in the log. a
On November 25, 2048, Defendants requested that Cohen supplement his

4 privilege log with additional information, claiming that the descriptions in the log 5 were inadequate. Cohen timely supplemented the log_ See exh. E. 6 On February 11, 2009, Defendants took the depasition of Mx. Cohen. During

7 that deposition, 1Vlr. Cohen stated that he had done work for Mr. Lin "in anticipation 8 of litigation" and that he had documents which were "prepared in anticipation of 9 litigation." Exh. F at 21:10-18, 22:5- l2; see also exh. F at 22:15-20 (stating that 10 work was done "in anticipation of some litigation"); exh. 1 at 196-197 {stating that 11 Cohen was consulted with regard to litigation against specif c parties). 12 Following the depasition, Defendants again requested a revision of the Cohen

13 privilege log. They insisted that each document be logged separately (instead of 14 grouped in folders as they previously were}, and claimed that work product had been 15 improperly asserted. The Cohen log was revised to add a separate entry for each 16 ^ document as requested by Defendants. See Exh. H. In addition, each entry .was 17 I reviewed to check for errors. 18 This pattern repeated itself several times, with Defendants insisting that the

19 Cohen log was deficient, and Cohen attempting to revise the log to Defendants' 20 satisfaction. During the process of revisions, some eiTOrs in the claim of privilege 21 were found, and revised. Of the approximately 300 documents logged, 11 non22' privileged documents were found to be inadvertently logged as privileged, and those 23 documents were produced. Defs. at 4:35; Defs. at 5: l; Exh. I and J. In addition, 24 some attorney-client privileged documents were found to have been incorrectly 25 Togged as "worl^ product," and vice versa. Those mistakes were corrected, and a 26 ^^ new privilege log was produced. See, e.g., Exh. K and M. 27 Defendants suggest throughout their motion that Cohen improperly asserted

28 work product, but the facts show otherwise . Mr. Lin anticipated suing Google and
0100351305!306045 I . I -L

.POINT STIPUE.ATION RE: pEEENOANT GOOQLE ANC. AtJD AOL i.LC`S MOTION TO COMPEL PROi]UCTION

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other infringers of the `253 patent, and consulted with Mr. Cohen as litigation

2 counsel. Mr. Cahen repeatedly asserted in his deposition that he worked for Mr. 3 Cohen "in anticipation of some litigation," and asserted work product based on that 4 relationship. See exh. F at 21: 10-18, 22:5-12, 22:15-20 (stating that work done for 5 Lin was done "in anticipation of some litigation"); exh. 1 at 196-197 (stating that he 6 had knowledge of a specific litigation). Significantly, Defendants do not challenge 7 any of the work product designations in the Cahen privilege log. See Defs. position. 8 Thus, the only issue before this Court is Defendants' challenge to assertion of the 9 attorney-client privilege. 10 11 ARGUMENT Set Earth below is a list of the Cohen privilege log entries at issue, followed

12 by the parties' contentions as to these entries, including a statement of how each 13 party proposed to resolve the dispute over that i ssue at the conference of counsel. 14 Due to the size of the privilege log entries, the full text of each entry is provided in 15 the Appendix at the end of this stipulation. lb I. 17 COHEN ' S PRIVILEGE LOG ENTRIES AT ISSUE
Privilege log entries 1-27, 2-5, 2-6, 2-11, 7-1, 7-2, 7-3, 7-4, 7-5, 7-6, 7-7, 9-1,

18 9-2, 10-1, 10-2, 10-3, 10-4, 10-5, 10-6, 10-7, i l-9, 26-4, 26-5, 26-6-7, 26-8-9, 2619 i 0-11, 26-12-14, 26-15-16, 26-17-18, 26-19-18, 26-20, 29-1, 29-2, 30-1, 30-2, 30-3, 2a 30-4, 30-5, 30-6-7, 30-10-11, 30-14, 30-15, 30-16, 30-17-19, 30-20, 30-21, 30-2221

23, 30-24, 30-25-26, 30-27-32, 30-33-34, 30-35, 30-36-37, 30-38, 30-39-40, 43, 72

22 and s0. 23 II. 24 2S 26 Federal Rule of Civil Procedure Rule 26{b }( S) requires that a party asserting a DEFENDANTS' POSITION
A. Law demonstrates that the Court should rant Defendants' motion to compe t e pro uchon o ocuments.

27 privilege or protection " make the claim expressly" . The Advisory Committee Notes 28 to the 1993 Amendments of Rule 2b state that a parry's failure to notify other parties
01002 . 5! 3 0 513 0604 5 1.! ST^IPLlLATIOI^ ! RE: DEFENDAhtT CrOpGl.E Ii^fC- AN[3 AOL LLC' S MOTION TO CQivlPBL P120DUCTlQ>`

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that it is withholding documents because of an assertion of a privilege or work product protection "may be viewed as a waiver of the privilege or protection." Fed. R. Civ. P. 26, Advisory Committee Notes, 1993 Amendment, reprinted in

4 Thomsan/West, United States Code Annotated Title 28 Federal Rules of Civil S

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Procedure , at 37 (West 2008 Sapp.).
Courts have held that the failure to expressly make a claim of privilege results in the waiver of that privilege, evert where documents have not been produced, in

8 particular where the addition of a claim ofattorney-client privilege or work product 9: protection is made to avoid the production of documents _ See Lockheed Martin 10 Corp. v. L-3 Comm'ns Corp., No. 05- 1580 , 2007 WL 2209250, *7 (M.D. Fla..luly
11 I' 29, 2007}. 12 13 For example, in Lockheed ^t^lartin, Plaintiff served original and supplemental privilege logs iri which it claimed only work product protection over a narx^ber of

14 documents. Lockheed Martin, N07 WL 2209250 at *6_ Defendants filed a motion

15 to compel production ofthese documents. In response to the motion to compel, 16 Lockheed served a new privilege log that, for the first time, claimed attorney-client 17 privilege over those same documents . Id at * 6 and n. 1. The Court found that l8 Lockheed had "waived its assertions of the attorney - client privilege in the present 19 case by failing to state them expressly in its original and supplemental privilege 20 logs." Id. at *7. 21 Similarly, in In re Honeywell the Court found Honeywell to have waived its

22^' claims of attorney work product by not raising them until after Plaintiff's had moved 23 to compel the production of documents previously withheld on grounds of attorney24 client privilege. In re .lloneywelllntern., Inc. Sec. Litig., 230 F.R.D. 293 (S.D.N.Y. 25 2003). The Court recognized that "parties should not be permitted to re-engineer 26 their privilege logs to align their privilege assertions with their legal arguments . _ . 27 Such a practice undermines the very purpose of privilege logs, and promotes the 28
01002.5130513060451.1 -^_ _ .POINT STIPULATION RE: DEFENDANT GOGGLE 1NC. AMID AOL LLC^S MOTION TO COMPEL PROI)UCTIOr

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kind of gamesmanship that courts discourage in discovery." In re Honeywell, 230 F.R.D. 293 at 299-300. B.

As in Lockheed and Honeywell, Cohen's tardy assertions ofattorney-client

i 6i privilege are nothing but a transparent effort to avoid producing three sets of 7^ documents. Over the course of many months, Defendants objected to Cohen's claims of work product protection for a number of documents, including related to 9 the prosecution of the patent-at-issue. Cohen failed to resolve this issue, despite 10 multiple iterations of his privilege log. Then, having finally admitted after months 11 of dispute that his documents were not entitled to work product protection, Cohen

12 belatedly asserted attorney-client privilege for all but one of these documents. 13

The documents for which Cohen made tardy claims of attorney-client

14 privilege fall into the following three categories: 15 16 17 18 19 20 21 22 23 24 25 26 27 28
01002.5130513060451.! ^^ JOINT STIPULATION RE: DEFENDANT GOOGI.E INC. AND AOL LLC'S MOTION TO COMPEL PRODEICT[ON

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o Categ_r^r 1: (Documents 43, 72, and 80): Cohen failed to assert
attorney-client privilege in his first four logs and did so for first time in his fifth log, six months after his first log and only after Defendants complained regarding Cohen's improper work product assertions, which he simultaneously dropped in his fifth log. (O`Brien Dec., Ex. C at ^-6; Ex. F at 9, 16-17; Ex. J at 30, 35-6; Ex. K at 31, 35-6.)

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Category 2: {Documents 1--27, 7-1, 7-2, 7-3, 7-4, 7-5, 7-6, 7-7, 9-1, 92, 11-9, 26-4, 26-5, 26-6-7, 26-8-9, 26-10-11, 26- i 2-14, 26-i 5-16, 2617-18, 26-19-18, 26-20, 30-1, 30-Z, 30-3, 30-4, 30-5, 30-6-7, 30-10-11, 30-14, 30-15, 30-16, 30-17-19, 30-20, 30-21, 30-22-23, 30-24, 30-2526, 30-27-32, 30-33-34, 30-35, 30-36-37, 30-38, 30-39-40): These documents were initially in entries for which Cohen claimed attorneyclient privilege for a large group of documents . {Id., Ex. C at 2, 4.} After Defendants objected to this improper grouping , Cohen produced

l 2 3 4 S 6 7 S 9 10
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his third privilege log, which logged each document separately_ {i'd.,
Ex. J.) This third privilege log did not assert attorney-client privilege

for ___y of these documents, but did assert work product protection. a {ld., Ex. H at 6, 13-14, l6, 23-24, 2b-27.) Cohen then only asserted attorney-client privilege for one of these documents in his fourth log. {Id , Ex..T at 7.} After Defendants continued to point out the improper nature of the work product claims, he then reasserted attorney-client privilege for the remainder of these documents in his fifth log. {Id., Ex. K at 14-15, l7, 24-5, 27-$.} Cateaor^3= {entries 2-5, 2-b, 2-l 1, 10-1, 10-2, 10-3, 10-4, 10-5, 10-6,
10-7, 29-1, 29-2}: For these documents, Cohen failed to assert

l2 l3 14 15
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attorney-client privilege in his original and second privilege log. {Icy, Ex. C at 2, 4; Ex. E at i-2, 6.} After Defendants complained that Cahen's assertions ofwork product protection were improper, Plaintiff added or substituted claims ofattorney-client privilege for these
documents for the first tune in his third privilege log, served almost

17 l$

five months after the original privilege log. {1'd., Ex. H at 6, l4-lS, 26.) '' It is clear for each of these categories that Cohen only added claims of

l9 attorney-client privilege after Defendants objected that Cohen's documents were not 20 entitled to work product protection. For all but one of the first and second set of 21 documents, this addition ofattorney-client privilege came at the same time Cohen 22 withdrew his improper work product protection claims. For the third set of 23 documents, this addition came somewhat earlier, but still four months after 24 Defendants frst objected to Cohen's claims ofwork product irrununity, and one 25 month after Cohen's deposition, where Defendants made clear that his claims of 26 work product protection were improper. Cohen should not be allowed to re27 engineer his privilege log in response to Defendants' legal arguments and objections.

2$ Instead, Cohen should be precluded from asserting attorney-client privilege for all
01U4"!.5130513^6U451.1 (^

JOINT ST[P[1LATI0N RE: DEFENDANT GOOGLE INC. AND AOL LLC^S MOTION TO COMPEL PR0D11CTI0A

l documents where he did not expressly claim it or where he withdrew only to later 2 reassert those claims. See In re Honeywell, 230 F.R.D. 293 at 299-300. 3 4 5
Plaintiffs counsel claims that Cohen did not waive attorney-client privilege
C. 'VUithholdin doc^zments does not reserve rivile a where that prrvY ege >ts not express y e a^n^e

6 because the documents have not yet been produced. (4'$rien Dec., ^ 15.E This is 7 inaccurate. Cohen had a duty to assert attorney-client privilege for all documents 8' that he alleged were sa protected. Cohen's original and revised privilege logs 9 contained many documents for which he alleged privilege as attorney-client 10 communications. Cohen chose to not allege attorney_client privilege, and to 11 withdraw claims ofattorney-client privilege, for the documents-at-issue. He cannot 12 now claim privilege that he has failed to properly assert simply because the 13 documents have not yet been produced. 14 In In re Honeywell , the Court found that Honeywell had waived its claim of

15 work product protection by failing to assert it in its initial privilege logs. 230 F.R.D. lb 293 at 299-300. The Court ordered the production of all documents for which 17 Honeywell had waived work product protection, even though Honeywell had 18 previously withheld these documents . 1`d. Similarly, Cohen should be ordered to 19 produce all documents far which he did not properly claim attorney-client privilege. 20 Cohen's withholding of those documents does not protect him from having waived 2i the privilege_ These documents should therefore be produced.

22
23 24

D.

Defendants ' counse .

ro osai t© resolve the issue at the conference of

At the June 4, 2009 conference of counsel, Defendants requested that Cohen

25 produce all documents for which attorney-client privilege had been waived. 26 Plaintiffs counsel refused, necessitating this Motion to Compel. 27 28
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COHEN'S POSrT)<ON A. Controlling Ninth Circuit law.

3

The controlling Ninth Circuit law rejects any per se rule in assessing waiver

4 of privileges. Instead, in assessing waiver, "a district court should make acase-by5 case determination, taking into account the following factors: the degree to which
6 the objection or assertion of privilege enables the litigant seeking discovery and the 7 court to evaluate whether each of the withheld documents is privileged {where

8 providing particulars typically contained in a privilege log is presumptively 9 sufficient and boilerplate objections are presumptively insufficient); the timeliness 10 of the objection and accompanying information about the withheld documents l 1 (where service within 30 days, as a default guideline, is sufficient); the magnitude of 12 the document production; and other particular circumstances of the litigation that 13 make responding to discovery unusually easy ... or unusually hard" Burlington 14 Northern & Santa Fe Ry. v. United States District Court, 408 F.3d 1142, 1149 {9th 15 Cir. 2005); Tibble v_ Edison Intl, 2008 U_S. Dist. LEXIS 106999, 5-7 {C.D. Cal_ 16 Dec. 30, 2008) (finding no waiver under the circumstances}.
17 Defendants make no attempt to apply the controlling legal standard. Instead,

18 their position rests entirely on two out of circuit district court opinions that do not 19 address, much less apply, the controlling law.

20

Defendants motion must be denied because all of the factors identified by the

21 Ninth-^Circuit weigh against waiver. Each of these factors is addressed in turn 22 below. 23 24 For example, the Honeywell case cited by Defendants rested on a Iocal rote in the Southern District of New York, "S.D.N.Y. Civil Rule 46(e){1} ...which 25 provide[d] that `any ground not stated in an objection within the time provided by 26 the Federal Rules of Civil Procedure, or any extensions thereof, shall be waived,"' which the court interpreted as a per se rule. In re Honeywell Int'1, Inc. Sec. Litig., 27 230 F.R.D. 293, 299 {S.D.N.Y. 2003}.
28 otoo2. stsosr3a^oast.t ^,
IOINT STIPULATION R£: DEFENDANT GDOGLE INC. AND AOL LLC'S iviOTION TO COMPEL PRODUCTI01,'

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X. The obiectianis here enable the litigant and the court t© evaluate the claim of nrivile^e. First, the Cohen log enables "the litigant seeking discovery and the court to See Burlington

4 evaluate whether each of the withheld documents is privileged."

5 Northern & Santa Fe Ry. v. United States District Court, 40$ F_3d 1142, i i49 {9th 6 Cir. 2005). ^ 7

-_

Exhibit O, for example, clearly states the document number, the date of the

8 document, the author(s), recipient(s), descriptions of the documents, and the 9 privileges claimed. Exh. O; see also exh. M, exh. ^, exh. H, exh. E, and exh. C. In 10 addition, the first page of the log contains a list thatmakes clear the relationships 11

betrx^een the relevant persons listed. See, e.g. exh. O {stating that .Tocelyn Lee, for

l2 example , is a senior paralegal at Vista IP Law Group). Based on this information, 13 Defendants have ample information to assess whether the documents at issue are 14 privileged. 15

In addition, to the extent that Defendants have argued that the original Cohen

16 log was necessarily deficient because it grouped the documents by file, rather than 17 document - by-document , that argument fails because it has been rejected by this 18 Court. See Moreno v. Baca ,, 2007 U. S. Dist. LEXIS 1.5432, *4 n. 1 (C.D. Cal. Feb. 19 16, 2007) (no requirement ofdocument-by-document listing ); see also .Imperial

20 Corporation ofAmerica v. Durkin, 174 F.R.D_ 475, 47$ {S.D. Cal. 1997). 21 22 23 24 25 26 27 28
aiaaz.s ^ sosr^o6oas i . i

2. The timeliness of the objection and accompanyin^ information weigh a^air^ist waiver. Second, the timeliness of the objection and the accompanying information weigh against waiver. See Burlington Northern & Santa Fe Ry_ v_ United States District Court, 408 F.3d 1142, i 149 {9th Cir. 2005) { timeliness of the objections is a

^ factor).
It is undisputed that the original Cohen log was timely served In particular,

^^ the very first privilege log served by Cohen asserted the attorney-client privilege
- 1 G-

JOINT STIPULATION RE: DEFENDANT GOOGLE iNC. AND AOL LLC`S MOTION TO COMPEL PROI^UCTIOT

1^ against nearly all of the documents now in dispute . In addition, to the extent that 2' Cohen' s log contained errors, Cohen made timely corrections in a good faith attempt 3^ to cure any inaccuracies . Cohen repeatedly supplemented the log each time that the 4 Defendants requested more information in a good faith attempt to cure, which 5 weighs against finding waiver. See EEOC v. Safe^vay Store, Inc_, 2042 U. S. Dist. 5 LEXIS 25200, 7-8 {N.D. Cal. Sept. 16, 2002} (" an improper Blanket assertion of 7 privilege might be excused if the defendant had taken the time to correct its error 8 prior to the discovery. hearing on the issue" ( alterations and internal quotation rriarks 9 omitted } (quotitxg Eureka Financial Corp. v. Hartford Acci. & Indem. Co., 136

la
11

F.R.D. 179, 184 (E.D. Cal. 1991}). Moreover, Defendants stipulated to, and the court in which the action is

12 k pending entered, a protective order stating that even where a mistake is made and a 13 privileged document is inadvertently produced , " na waiver of privilege" results. See 14 Cho decl. ^(3; exh. 2 at 19, ¶29 ("If any party inadvertently or unintentionally 15 produces materials protected under the attorney-client privilege , work product 16 ixmmunity, or other privilege, doctrine, right, or immunity, any holder of that 17 privilege, right, ar immunity may obtain the return of those materials'by notifying 18 the recipients} promptly after the discovery of the inadvertent or unintentional 19 production and providing a privilege log for the inadvertently or unintentionally 20 produced materials_"}. This provision governs Defendants as well as any third party 21 producing information in response to a subpoena in the litigation , and any holder of 22 a privilege . Exh. 2 at 2 ^ 1 {stating that the provisions relating to confidential 23 information apply to " information or material produced for or disclosed to a 24 I receiving party that a producing party, including any patty to this action and 25 nonparty producing_in,formation or material voluntarily or pursuant to a subpoena 26 or a court order ..." (emphasis added)}. Therefore, this provision extends the time 27!, period for expressly asserting a privilege and allows a privilege to be asserted even 28 aver inadvertent production of a document.
01002 , S 130513060451.1

Accordingly, agoad-faith and timely

JOINT STIP[JLATION RE: DEFENDANT GOGGLE TNC. AND AOL LLC'S MOTION TO COMPEL PRODUCTION

^

^.

1

correction of the privilege log is sufficient. Here, the challenged documents were

2 mis-lagged, but never produced, and the error was promptly corrected. Thus, 3 waiver is inappropriate. 4 Finally, even without a protective order that expressly allowed for the

5 clawback of inadvertently produced documents, California courts applying the Ninth 6 Cixcuit law have found no waiver even where the errors in the privilege log were 7 considerably more severe and a corrected log was served six months later. In EEQC

8 v. Safeway Store, Safeway responded to a discovery request with a boilerplate 9 objection based on the attorney client privilege and/or work product (without 10 specifying which one), and supplemented that objection with a detailed privilege log it only six months later. EE4C v. Safeway Store, Inc., 2002 U.S. Dist. LEXIS 25204, 12 4-6 (N.D. Cal. Sept. 16, 2002}_ The Court found no waiver, reasoning that the 13 parties were "both aware that Safeway was asserting the attorney-client privilege 14 and/or the work-product doctrine as to certain documents" from the outset. Id at *7 15 -S. 16 The same reasoning applies here -although the Cohen log contained some

17 ^ mistaken assertions of privilege which were later corrected, all parties were "aware 18 that (Cohen was asserting the attorney-client privilege ancUor the work product 19 doctrine as to certain documents" from the day that Cohen served his first log. 20 Thus, this weighs against waiver . See also A_ Farber & Ptnrs., Inc. v. Garber, 234 21 F.R.D. 186, 193 (C. D. Cal. 2006) (giving a party that served defective objections an 22' opportunity to serve^a revised , corrected log); EEOC v_ Safeway Store, Inc., 2002 23! U.S. Dist. LEX.IS 25200, 6 (N.D. Cal. Sept. 16, 2002) ("Minor procedural 24 violations , good faith attempts at compliance , and other such mitigating 25 ^ circumstances militate against finding waiver."}. 26 27 28
01002.5130513060451.1

^I

-14
1OINT STIPULAT3ON RE: DEFENDANT GOOGLS INC. AND AOL LLC'S MOTION TO COMPEL PRO>)UCT1ON

^..

^..

1

3. The size of the production weighs against f ndin^ waiver.

2 3

Third, the "magnitude of the document production" weighs against finding waiver. See Burlington Northern ^c Santa Fe Ry. v. United States District Court,

4 408 F.3d 1'142, 1149 (9th Cir. 2005). Here, the resulting privilege log was forty S pages long, malting the proper logging of many documents a daunting task. See

^ exh. Q. In light of this, the fact that some items were incorrectly logged on earlier
7 iterations is understandable. 8 9 4. The other circumstances weigh against waiver. Fourth, the "other particular circumstances of this litigation that make ^

10 responding to discovery unusually easy or ...unusually hard" weigh in favor of 11 denying this motion. See Burlington Northern & Santa Fe Ry. v. United States 12 District Court, 408 F.3d 1142, 1149 (9th Cir. 2005). 13 First, that the holder of the privilege at issue is the client, Mr. Lin, and not Mr. 14
Cohen weighs against finding waiver. "The focal point of privilege waiver analysis 15 should be the holder's disclosure of privileged communications to someone outside

16 the attorney-client relationship." Tennen6aum v. Deloitte &Touche, 77 F.3d 337, 17 341 (9th Cir, 1996} (emphasis added}. Here, the holder of the privilege is Wayne 18 Lin, Cohen's client -not Cohen. See Tennenbaum v. Deloitte &Touche, 77 F.3d 19 337, 339 {9th Cir. 1996) (stating that the client, Glen Ivy, holds the privilege}; KL 20 Group v. Case, Kay & Lynch, 829.F.2d 909, 91$ {9th Cir. 1987} ("the client is the. 21 holder of the attorney-client privilege" under California law).

22 23

It is undisputed that Wayne Lin has always asserted attorney-client privilege with respect to his communications with Mr. Cohen. In response to a subpoena in

24 this liti g ation ^ Mr. Lin and his com an^ PricePlaY, P roduced aPrivilege to g PY 25 asserting attorney-client privilege for confidential communications between Mr. 26 Cohen and Nlr. Lin. See exh. 3. Defendants do not assert that Mr. Lin ever waived 27 this privilege by disclosing the privileged conununications to someone outside the 28
otooz . sl3osr3osoast.i ^r
.JOINT STIP{JLATION IZE: DEFENDANT CAOGLE TNC. AND AOL LLC'S MOTION TO COMPEL PAODUCTiOt

1 2

attorney-client relationship. See Defs. position; see also Tennenbaum v. Deloitte & Touches 77 F_3d 337, 341 {9th Cir. 1996} {waiver analysis focuses on whether the

3 "holder's disclosure of privileged communications to soiTleone outside the attorney4 client relationship" {emphasis added)j. This weighs against finding waiver. 5 In addition, that Cohen is a third party to this litigation, and that the

6 documents in question are^several years aid, weighs against Ending waiver. These 7 facts made it more difficult for Cohen to retrieve the documents, recall the matter,

8 and readily assess the different claims of privilege that applied. Thus, this factor also 9 weighs against finding waiver. 10
11 12

DEFENDANTS` CONCLUS)[ON
1~or the foregoing reasons, Defendant Google Inc. and AOL LLC's Motion to Compel should be granted. The Court should therefore:

13

Order the production of documents corresponding with privilege log entries

14 1-27, 2^5, 2-6, 2--11, 7-1, 7-2, 7-3, 7-4, 7-5, 7-6, 7-7, 9-1, 9-2, 10-1, 10-2, 10-3, 10-4, l5 10-5, 10-6, 10-7, 11-9, 26-4, 26-5, 26-6-7, 26-8-9, 26-10-11, 26-12-14, 26-15-16, 16 26-17-18, 26-19-18, 2b-20, 29-1, 29-2, 30-1, 30-2, 30-3, 30-4, 30-5, 30-6-7, 30-1017 11, 30-14, 34-1.>, 30-16, 30-17-19, 30-20, 30-21, 34-22-23, 30-24, 30-25-26, 30-271$ 32, 30-33-34, 30-35, 30-36-37, 30-38, 30-39-40, 43, 72 and 80; and 19 Order Cohen to pay all costs and relief afforded under Federal Rule of Civil

20 Procedure 37, including the costs and fees incurred by Defendants Google inc. and 2l 22 23 24 25 26 27 28
01 002 5 1 3 0 5130 6045 1.1 - ^ ^_ JOINT $TIPIJi,AT1ON RE: DEFENDANT CAOGLE INC. AND AOL LLC^S MOTION TO COMPEL PRODUCTION

AOL LLC related to this motion. COHEN'S CONCLUS)<ON For the foregoing reasons, Defendants' motion to compel should be denied.

^^^

/^^^

-

}

,

l ^ DATED: August , 2009 t
. ^' 4

QUINN EMANUEL URQUHART OLXVER & HEDGES. L P

By

D -

A. Perlson

Attorneys far Defendant Google Inc. and AOL LLC -

i

DATED: August . 2009

DO

c 1[

By Attorne s for Nea! Cohen and Vista IP Law Group, LLP

_'^-

.1] 1
1 l^

1^ · 1` 1f 1^ if 1S 2( 2l 2^ 2. 2^

^^

1

Appendix
2 3 '^# 4 5 b, 7' 8 -5 9 10 ii 12 13 ld 15 16 17 18 19 20 21 22 23 24 2S 26 27 2^
O1(}02.513051306045E.1

ate

uthor

ecipient

escription

rivile e{s} lazm

1-27

713 ll02

MC

812/01

MC

L

-b

8113101

MC

etter concerning the film of the C-_ Supplemental Appeal Bri e ^nc udtng confidential ommun^cations between client and ttorney. etter concerning the Final Office AJC Act i on rece i ved 8 12 101 including onf^dential communications etween client and attorney. C etter concernin the Response fter Final filed ^/13/O1 including anfidential communications etween client and attorney.
etter concerning prosecution C

-11

117107

MC

epresentation for the purpose of egal advice and including onfidenhal communications
etween client and attorney.

-l

MC^on ehal of L)

O

ocument concerning Japanese atent prosecution representation or the purpose of legal advice and
including confidential ornmunicat4ons between client

IC

-2 7-3

MC^ on ehal of L) ^
MC^on ehal of WL)

O

O

d attorney. C ocument concerning legal ^nvaices related to Japanese patent pplication including confidential mmunications between client and ttorney. A/C Document concerning US patent pplication status related to apanese patent application 'ncluding confidential mmunications between client and
ttorney.

-4

ehal of
MC on

MC^on

O

-5

O

ocument concerning Japanese . atent application process including nfidential communications etween client and attorney. ocument concerning preliminary

C

C

.^OiNT STIPL=[.ATiON RE: DEFENDANT C.OOGLE [NC. AND AOL LLC'S MOTION TO COMPEL PRODUCTION

1 2 3 4 5 -7 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 -2 / 17100 MC on O

atent application including

-6

MC^on ehal of

O

onfidentzal communica#ions etween clie^it and attorney. ocument concerning legal ^nvoices related to .lapanese patent pplication including confidential ommunications between client and ttorney.
etter concerning US ppatent pplication related to .iapanese

C

C

12/14/01

ehal of L} PY MC^ on ehal of ^

atent prosecution. etter concerning Power of ttorney forms and International
relimin Examination report elated toKorean patent application

C

10-1

121/00 /211aa
12/13/99

MC

ncluding confidential communications between client and ttorney. rafts of User Agreement 'ncluding confidential communications between client and
attorney.

C

10-2

MC

wL

Drafts of User Agreement A/C ncluding confidential communications between client and
attorney.

10-3

MC

WL

ocument concerning Iegal esearch regarding business models for the purpose o^t' legal advice and including confidential
ominunzcatzons between client

C

10-4

11/10/99

MC

WL

nd attorney. raft of licensing document for the urpose of legal advice and inclu di ng confi d enti al coznmunzcations between client
and attorney.

C

22
23 24 25 26 27 28
0 [602, 513051306045 3.1

10-5

9128199

MC

10-6

125199

MC

WL

Draft of licensing document for the IC u ose of legal advice and ncluding confidential ommunications between client nd attorney. Draft of licensing document for the /C u ose of legal advice and ncluding con#-idential
ominunzcations between client nd attorney.

10-7

124199

MC

WL

raft of Licensing document for the ur ase of legal advice and
1 ^-

C

.^OINT STlPElLATION RE: p):F$NDANT GOOGLE lNC. AND AOL LLC'S MOTION TO COMPEL PRODUCTION

.w-^-..

1 2 3 4 S 6 7' :8 9 10 lI 12 13 14 1s lb 17 18 19 b-12-14 71s/00 b-15-16 &!22100 O O 6--10-11 14!00 O 6-8-9 711.2100 6-6-7 128101
6-s

conununications between client nd attorney_

11-9 6-4

I10I00
12/01

MC(on

aiwanes

ocument related to Taiwanese

eh) f of L
O

attorney atent application. MC^on tter concerning publication of ehal of apanese patent application ^ ncluding confidential ommun^cations between client and
ttorney.

C

C

12/01

MC^on Email concerning Japanese patent ehal of rosecution process for the purpose L) of leg al advice and including oniidential comm un i ca ti ons etween client and attorney_ MC^on O ocument concerning Japanese ehal ofatent prosecution process status L} including confidential ommunxcatxons between client and ttorney. MC^on O Document concerning legal invoice ehal of e Japanese patent ap licatian } "ncluding confidential ommunications between client and
ttorne y.

C

C

C

MC^on Document concerning legal invoice ehal of e Japanese patent application ) i nc ludi ng canfident^al ommunicatxons between client and
ttorney.

C

20
21 22I 23 24 25 26 27 6-17-18

MC(on Document concerning filing of ehal of apanese patent application } ^ ncluding confidential ommun^cations between client and
ttorney.

C

MC^on ehal of L}

etter concerning filing of Japanese atent application including onfidenhal communicarions etween client and attorney.

C

121100

MC^on ehal of L)

O

Document concerning filing

eadlines for Japanese patent pplication including canfident^al ommunications between client and ttorney.

C

28
01002 . 51305]060451.1
_ ^{ V"

10INT STIPULATION RE: DEFENDANT COOCLE INC. AND AOL LLC'S MOTION TO COMPEL PI20DUCTION

^^

^^

1 2 3 4 5 b 7

6-19

121140

MC^on ehal of

O

ester concerning filing of Japanese

C

L) 6-20 /21/00 O

atent application including nfidential communications etween client and attorney. MC^on Letter concerning filing of Japanese
atent application including onfidential communications

C

ehal of }

9-1

!13100

MC

L

etween client and attorney. ^. Draft of license agreement ^ncluding confidential ommunications between client and
ttorney.

IC

8 ',9-2 9^ 10 11 12 13 14 15 1b 17 18 19 20 36-5 21 22 23 24 25 26 27 28
01002.5 1 30 51306045! . ]

113100

MC

raft of license agreement ^ncluding confidential ommunications between client and ttorney.

C

i0-1

10/13/04

30-2

^

communications between client nd attorney. mail concerning representation re 10/11/04 onesry & JE^on eh f of ocean patent application including atent 10/13/04 JE {on eh f of L) 1016104 e-Chang ang , ocean
atent

mail concerning to istical details onesry & JE on eha^f of e 1Gorean p atent application atent 'ncluding confidential L}

C

C

30-3

etween client and attorney. mail concerning representation re onesty Patent Korean patent application Including
onfidential communications

L}

onfidential communications

C

30-4

ounsel
10/19/02 MC (on ehal#^ of

etween client and attorney. /C MC (on ester concerning deadlines and ehalf of osts re Korean patent application including confidential L} oininunications between client and attorney.
PY Email concerning representation re

/C

L) 0-6-7 10/18/02 MC

ocean patent appscatian including confidential communications

etween client and attorney.
PY, WL Email concerning representation re ocean patent application including confidential communications etween client and attorney. MC^on Letter concerning fle transfer of ehal of ocean patent application including confidential communications L} etween client and attorney. MC(on etter concerning logistical details ehal of e Korean patent application C

0-10-11 10/17/02

PY

C

0-14

7/29102 YPY

C

W l,1 -

.iOINT STIPULATION RE: DEFENDANT GOGGLE INC . AND AOL LLC' S MOTION TO COMPEL PRODUCTION

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 2I 22 23^' 24 25 26 27 28
0]002 .51305l3060451.E

L}

omznunications between client nd attorney.

0-15

7 /29/02 YPY

MC( on Letter concerning priority AIC ehal of ocuments re Korean patent application including confidential ommuntcations between client and
attarney-

0-16

/17102

Y

ehalf of

MC( on

otter concerning public disclosure

' ncluding confidenhal ommunications between client and
ttorney.

f Korean patent application

/C -.

0-17-19 12/29/01

PY

MC^on ehal of L)

otter concerning filing of Korean

atent application including onfidenhal communications
etween client and attorney. .

C

0--20

12/26/01

onest & atent

0-21

12/25/01

PY
_

MC^on Letter concerning filing of Korean AJC ehal of atent application including ^) onfidenhal communications etween client and attorney. MC^on otter concerning preparation of C eh al o f fi li ng Korean patent application } ^ ncluding confidential onununxcahons between client and
ttorney. PY Document concerning preparation C

0-22-23 12/24/01

MC^on ehal of } MC^on ehal of

f filing Korean patent applxcahon including confidential communications between client and
ttorney.

0-24

12 / 14/01

PY

Letter concerning Power of ttorney forms re Korean patent pplication including confidential ommumcations between client and
ttorney.

IC

0-25-26 12/14/01

MC ( on ehal of L} MC^on ehal of L) PY

PY

otter concerning f ling of Korean atent application including anf dential communications etween client and attorney.
mail concerning preparation of

C

0-27-32 1219101

PY

A/C

Q-33-34 i l/'15/01

filing Korean patent application incl u di ng c on fidential ommunications between client and ttorney. MC^on otter concerning filing of Korean ehal of atent application including L) nfidenhal communications etween client and attorney.

C

JOINT STiP[1LATION RE: DEFENDANTGOOGLE INC. AND AOL LLC^S MOTION TO COMPEL PILODIJCTlOh

^.

1 2 3 4 5

0-35

11/15/01

PY

mail concerning Korean patent MC(on ehalf of application process including L}

A/C

0-36-37 L 1!15101

PY

0-38 6 7
S

1 I/14101

MC

0-39-40 I 1/1/01

onest & atent

9 10 11 12 13 14 l5' 0
3130107 MC

3

1010b105

MC

onfidential cornznunications etween client and attorney. C MC^on etter concerning legal casts re ehal of ocean patent application including onfidential communications L} etween client and attorney. C onest & mail concerning representation re vrean patent application including atent confidential communications etween client and attorney. C MC^on Letter concerning Koreanpatent ehal of pp lication including con adential communications between client and L) attorney. ocument relating to draft ofpatent C L drawings including confidential ommuntcations between client and
attorney.

2

3129/07 LL

MC

mail concerning filing of patent
documents including confidential conununicatians between client and attorney.

C

16
17 18 19 20 21 22 23 24 2S

LS, JI.;L Email concerning draft of claims including confidential communications between client and ttorney.

C

2b

2^

z^
01902. SI30513(164451 . 1 ^^ _ _^_ _.

101NT STIPULA"f'[ON RE: DEEENDAN'C GOOGL£ INC. AND AO[, LLC`S MOTION TO COMPEL PRODlSCT103