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, ).

y

z

Dockets.Justia.com

[^ll I^11)l ^fi^d^gl^^ trial ta^vvers: salt traltcise¢
5(llpliliarni75^;;s:^7._'sniiilin'^r.^:it,I^.':7S;Cl.^:.^.(^;7iiiimii:7 1^lII3 r;^ ^-Ii>i8?-_,^ ^-^.a4',:i^^a';-:..,,.

June 8.2009

Vt.a Et^ec'eno^vtc M:ut, Greg Dovei Christin Cho Dowel & Luner LLP 201 Santa Monica Boulevard . Suite 600 Santa hlonica _ CA 90401

Re:

Performance Pricing. Inc. v. Goot;le Inc. et al.

Dear Greg & Christina I write to memorialize our meet and confer on June 4, 2009 regarding privilege !og issues in the Aerformance Pricing. Inc. v. Google Inc. et al. matter. During our call. we discussed the revised privilege logs of Performance Pricing, PricePIay/Wayne Lin. and Neal Cohen/Vista lP Law Group that «^ere served on May 29; 2009. First, we discussed the issue of tivaiver of attorney-client privilege or work product protection. In particular- we noted that Neal CohenNista IP Law Group had asserted attorney-client privilege for a number of documents in.the May ! 8 and May 29; 2009 privilege logs, where attorney-client privilege had not been asserted in the previous logs. It was only after we had complained multiple times that documents in the Cohen privilege log were not entitled to work product protection----and after multiple iterations of that privilege log---that Cohen removed the assertion of work product protection. and added an assertion of attorney-client privilege For these documents. Having failed to previously assert attorney-client privilege for these documents, Cohen has waived the privilege and these documents must be produced. Specifically, Cohen must produce documents corresponding with privilege log entries 21, 43, 72, and 80. Additionally; Cohen must produce documents corresponding with privilege log entries, for which Cohen did not assert attorney-client privilege in his 3.18.2009 or 4.18.2009 privilege logs
^csin^r emastaet Z£rituEt2r; u6;^er v ttstlt^^s, t^^t
..' 47

. 41042.5 i 145/2 46 14 8 6, E 7-., t^ ,^ ...: ,i..l ! ..:, ... ... ,. ^ ,. . ^ .... 4-. ^+,

5.57 -iSll :'.;

Si 5 +4··'_

N(

N

PAGE

^-^ ^

1-27.7-1, 7-2, 7-3. 7-4, 7-S, 7-b. 7-7.9-1, 9-2, 11-9, 26-4.26-5, 26-6-7, 26-8-9.26-10- 11; Ib-1214.26-15-16. 26-17-18; 26-19-18, 26-20, 30-1; 30-2, 30-3; 30-4, 30-5, 30-6-7. 30-10-1 I. 30-]^1, 30-15. 30-l6, 30-1-19, 30-20, 30-21, 30-22-23. 30-24; 30-25-26; 30-27-32, 30-33-34, 30-35, 303b-37, 30-38, 30-39-40. Finally, Cohen must produce documents corresponding to the following privilege log entries, for which Cohen did not assert attorney-client privilege in his origins[ or fErst revised privilege logs: 2-5, 2-6; 2-! 1, 10-1, 10-2; 10-3, 10-4, l0-^, 10-6, 10-7.29-1.29-2. Moreover, both PricePlay and Performance Pricing have improperly asserted work product protection or attorney-client privilege in later privilege lags for documents ^ti·here this was not originalh^ asserted in their first privilege log. These protections or privileges were thus waived. PricePlay must produce documents corresponding with bates numbers P 21956-66; 22026-7, 22l 15-6, and 22496-508. Similarly, Performance Pricing must produce documents corresponding ^^^ith bates numbers P 93 3 6-7, 9318-9, 9348-9, 9357-8, 9364-74, 9375-83; 1 123840. 1 131 ^-23.1 1333-44, 12200- l , 12202-4, 12262-3, ! 2268-77, 12287-92, 12325, 13499-500, 13501, 13504-^. 13>06-7, 13526-7; 15534, 17435. 17440-2, 17443-4, 17505-10, 18428-30. 18431-33; 18436-7, 18475-b, 18499-501, 18502-b, 1851 t-8, 19836-8; 19841-2, 19843-4, 199048. i 9909- 16. f 99l 7-22. 208 16.9700-2. ] 3522-3.2 1138. 8086_ and 1 1387-400. Plaintiff asked that ^.°e provide authority for the position that the failure to assert privilege or protection in the ear}ier logs waived the privilege or protection, absent disclosure of the documents. While we continue to believe that such case la.v is unnecessary given l;ederal Rule of Civil Procedure Rule 26(b)(5)'s requirement that a party asserting a privilege or protection to "make the claim expressly".' eve direct Plaintiffs attention to the fo[lowing case. See Lockheed Martin Corp, i·. L-3 Coi^zj2a'ns Corp., No. OS-1580. 2007 VJL 2209250. *7 (M.D. Pia. July 29. 2007) {finding that Lockheed Martin had "waived its assertions of the attorney-client privilege in the present case by failing to state them expressly in its original and supplemental privilege logs", after plaintiff tried to serve a new privilege log asserting attorney-client privilege}. if you continue to believe that it was appropriate for you to later assert attorney-client privilege or work product doctrine for documents where it had not been previously asserted, please provide us with ease law in support of your position. Because they have waived attorney-client privilege or work product protection for the documents listed above, eve expect Plaintiff; Mr. Lin and Mr. Cohen to produce these documents no Eater than the end of this week. Second, we discussed the issue ofthe privilege log descriptions remaining inadequate. We agreed to provide examples of descriptions that we believed needed to be corrected, and you

' We further note that the Advisory Comm ittee Notes to the 1993 Amendments of Rule 26 state that a party's failure to notify other parties that it is withholding documents because ofan assertion of a privilege or work product protection "may be viewed as a waiver of the privilege or protection."

01602 .51305(2961485.1

2

PAGE

^

agreed to address these issues by the end of the Eveek. The parties agreed that at that point, we .·^ould either accept these descriptions as they .were or move to compel. Consistent «' ith our discussion, .ve note that the descriptions in the Cohen privilege log remain inadequate . Cohen's log contains multiple iterations of the same descriptions , such that it is impossible to assess his claims ofattorney- client privilege. For example , numerous entries contain the description "Letter concerning patent prosecution far the purpose of legal advice and including confidential communications behveen client and attorney ." See, e.g, I-I, I-2, 1-3, 1-4, !-5, 1-6. I-7. I-8, 1-9, I-10; 1-1 ]; 1-12; f-13; I-14; 1-15, 1-16, 1-17, I-18. 1-19. 1-20 , I-21, 122, 1-23, 1-24, 1-25, i-t6, }-27, 2-5, 2-6.2-I I, 3-I, 3-2, 3-3, 3-4, 3-5, 3-6; 3-7. 3-8.3-9, and 3I0. Cohen also repeatedi}· uses a number of similar descriptions , such as for example "Document concerning patent prosecution for the purpose of legal advice and including confidential communications bet-veen client and attorney"_ "Email chain concerning patent prosecution for the purpose of legal advice and including confidential communications between client and attorne }·' ; and "Email concerning patent prosecution for the purpose of legal advice and including confidential communications between client and attorney ." These descriptions are insufficient, and da noE alio .v us to assess Cohen' s claims as required by Federal Rule ofCivil Procedure 45(d}(2}. Indeed , this is illustrated b}' the fact that Cohen uses one of these descriptions regarding " patent prosecution " for documents dated after the prosecution of the'253 Patent had ended and the patent had issued . See, e.g,, 83, 84, 85, 86 , 87. 88, 89.90.91, 42, and 93. Cahen's abbreviation section defined " patent " as the'253 Patent. These documents could not possibly be about the '253 Patent prosecution , given that they are dated so long after the '253 Patent had already issued . Therefore . these descriptions are wrong and must be revised. _. Cohen's log must be amended to provide descriptions that are sufficient to assess his claims of ----- priviiege.z Finally, .while we did not discuss it during our meet and confer, .ve noticed that the 5.18 and 5.29 versions of the Cohen log contained additional entries that were not contained in the earner logs. See 26-22, 26-23-24, 26-25, 26-26. 26-27.26-28-29, 26- 30, and 26-31-33. Please explain the addition of these entries.

` Please note that while.ve continue to believe that the PricePlav and Performance Pricing privilege logs contain inadequate descriptions for many of the same issues. we will address them separately depending an the resolution of the issues on the Cohen log.

01002 ,5 E305f^461485.1

^

^XHI^I^ _._^^.^-PACE z ^^

11^

'y;:ja0^'^.

^..

%.

As al^^^ays_ we remain ^yillin^ to meet and confer to resale any discovery issues, and hope that you similarly remain ^t^illing to «°ork together on these issues in a timely and efficient manner. if you 6elieye that a telephone conference ti+^ould result in a more expeditious resolution of this issue , please let me kno^^^ so we can setup a time to discuss. Cordially.

Isl Emily C. O'Brien
Emily C_ O'Brien

61x62 . 5 E 365f2461486. E

PAGE

^^