In a recent memorandum order, Judge Sue L. Robinson found that a plaintiff’s communications with its patent monetization consultant were properly withheld as privileged or work product protected. Walker Digital, LLC v. Google, Inc., Civ. No. 11-309-SLR (D. Del. Feb. 12, 2013). Although the patent monetization consultant clearly “was not retained to provide legal services[,]” id. at 2 n.3, the Court explained that, based on a review of an advisory services agreement and a common interest agreement, “Walker Digital and IPNav do share a common legal interest and, therefore, any Walker Digital communications protected by the attorney-client privilege or work product doctrine do not lose that protection simply because they have been disclosed to IPNav.” Id. at 2.
The Court also granted in part the plaintiff’s motion to compel the production of paper versions of materials previously produced in redacted form. The Court denied the motion to the extent it related to documents with redactions labeled “Redacted – Source Code”, finding that such redactions at least put the plaintiff on notice that the unredacted information could be accessed on the source code computer. Id. at 1 n.1. However, with respect to documents produced with unlabeled redactions, the Court explained that “Google was not justified in simply redacting the information without offering an alternative means of reviewing it. Although Google has now made the unredacted versions available on the source code computer, this effort is too little, too late, for these documents.” As a result, the Court ordered Google to produce paper versions of these documents with source code unredacted. Id. at 2.