Having recently issued a decision relating to plaintiff’s privilege log on July 19, discussed here (“the July 19 decision”), Special Master Paul M. Lukoff issued a second Opinion and Order “devoted to two additional issues, as well as a continuation” of the issues in the July 19 decision. Robocast, Inc. v. Apple, Inc., C.A. No. 11-235-RGA; Robocast, Inc. v. Microsoft Corporation, C.A. No. 10-1055-RGA, slip. op. at 2 (D. Del. Jul. 30, 2013).
Special Master Lukoff first assessed which communications of a Canadian lawyer (Pozner) who functioned as plaintiff’s Director of Business Development were protected by the attorney-client privilege. Judge Andrews had previously ruled that these documents were not privileged and ordered them produced, and plaintiff continued to withhold some of them. Id. at 1. But the Special Master concluded that, before Judge Andrews, the parties had not briefed the specific question now before him: whether plaintiff could still claim privilege where Pozner specifically functioned as a “conduit or adjunct to lawyers.” Id. at 2-3. Special Master Lukoff concluded that most of Pozner’s communications with attorneys were privileged as he was “actively engaged in securing, and integral to the consideration by [plaintiff] of, of legal advice.” Id. at 3-4. But where Pozner communicated with non-lawyers without outside counsel being party to these communications, “there was greater opportunity to find that his involvement, having already lost any patina of protection in terms of attorney-client privilege” due to Judge Andrew’s decision, “was for business rather than legal reasons.” Id. at 4.
Defendant also argued that there were more than 1,000 log entries that were inadequate under Rule 26(b)(5)(A) and their documents should be produced. Generally Special Master Lukoff found that plaintiff’s descriptions were sufficient as he “had no reason to doubt plaintiff’s counsels’ representation . . . they they’ve described as well as they can documents which they’re certain came from an outside law firm, but whose metadata . . . provided no further insights as to which firm and which attorney within that firm was the originator.” Id. at 4. Special Master Lukoff then conducted the same “item-by-item determination” present in the July 19 decision, as to whether the presence of third parties on these additional log entries waived privilege. See id. at 5-7.