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Special Master Seitz: Decision on objections to instructions that 30(b)(6) witness not answer questions

Special Master Seitz recently decided Defendants’ Objections to Plaintiff’s Instructions Not to Answer Questions at Deposition of Plaintiff’s Rule 30(b)(6) Witness. One of the four issues decided involved counsel for Plaintiff instructing the witness not to answer questions regarding communications between himself and a U.S. attorney employed as General Counsel of another entity. Id. at 2. Plaintiff argued that the communication was protected by the attorney-client privilege or, alternatively, the community of interest privilege. Id. Defendants objected because there was no attorney-client relationship, the communications were not described with particularity as required under Fed. R. Civ. P. 26(b)(5)(A)(ii) and the community of interest privilege does not apply because there is not a direct parent-subsidiary relationship between plaintiff and the other entity. Id. Special Master Seitz found that the attorney-client privilege did not apply and that the Plaintiff and its “sister subsidiary” could not be treated as a single entity for purposes of the community of interest privilege. Id. at 3. Moreover, Special Master Seitz noted that the witness, as Plaintiff’s corporate representative at a 30(b)(6) deposition may have spoke to the attorney to gather facts regarding the issues in dispute, but “those facts cannot be protected from disclosure simply because a lawyer provides that information to a corporate witness.” Id. at 4.

Special Master Seitz also addressed objections to counsel for Plaintiff’s instruction that the witness not answer questions regarding conversations with an employee of its sister subsidiary, questions regarding communications with a Swiss attorney employed as in-house counsel at Plaintiff, and questions relating to the witness’s preparation to testify about Plaintiff’s asserted reasonable royalty. Id. at 4-9.

Inventio AG v. ThyssenKrupp Corporation, et al., C.A. No. 08-874-ER (D. Del. June 3, 2010)

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