Judge Joseph J. Farnan, Jr.: Privilege Issues
Privilege disputes are often a hot topic of intellectual property litigation. In WebXChange Inc. v. Dell, Inc., Judge Farnan ruled on a number of disputes sounding in the assertion of the attorney-client privilege, attorney work product doctrine and clergy-communicant privilege. C.A. Nos. 08-132-JJF, 08-133-JJF, Memo. Op. (D. Del. Feb. 16, 2010). One dispute involved the assertion of the attorney client privilege as to documents that were described in plaintiff’s privilege log as “notes memorializing confidential communications with counsel.” Id. at 7 (internal citations omitted). The court did not find a waiver of privilege, however, it did require the plaintiff to “supplement its privilege log entries” for all documents that are “drafts of confidential communications made to any attorney, or notes of memos to counsel regarding confidential communications.” Id. Further, plaintiff must “identify the actual communication to an attorney (listed within the privilege log) to which the drafts, notes and memos pertain.” Id. at 8.
Another dispute, involved the plaintiff’s assertion of the clergy-communicant privilege for certain emails that were sent to two Hindu gurus to allegedly obtain legal and spiritual advice concerning the litigation. Id. at 10. Plaintiff further argued that they copied certain third parties on the email “in furtherance of the blessings.” Id. at 11. The court accepted plaintiff’s representations and denied defendants’ motion to compel.
Finally, the court found the crime-fraud exception inapplicable to patent-prosecution documents that were withheld by plaintiff because defendants had not made a prima facie showing of fraud. Specifically, the court found that a mere restatement of the defendants’ inequitable conduct allegations is not sufficient to overcome the assertion of the attorney-client privilege based on this exception. Id. at 12-13.