Mformation Techs., Inc. v. Research in Motion Ltd.
Mformation Techs., Inc. v. Research in Motion Ltd.
2010 WL 3154441 (N.D. Cal. 2010)
August 9, 2010
Lloyd, Howard R., United States Magistrate Judge
Summary
RIM argued that documents were electronically stored and any privileged documents could have been readily identified by plaintiff. The court noted that Mformation had taken pains to review its entire document production and production process to help ensure that privileged materials would not be disclosed on a going-forward basis. The court declined to find that Mformation waived the claimed privilege as to documents recalled in April 2010.
Additional Decisions
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NOT FOR CITATION
MFORMATION TECHNOLOGIES, INC., Plaintiff,
v.
RESEARCH IN MOTION LIMITED and Research in Motion Corporation, Defendants
MFORMATION TECHNOLOGIES, INC., Plaintiff,
v.
RESEARCH IN MOTION LIMITED and Research in Motion Corporation, Defendants
No. C08–04990 JW (HRL)
United States District Court, N.D. California, San Jose Division
August 09, 2010
Counsel
Shawn Edward McDonald, Amardeep Lal Thakur, Gina Ann Bibby, Foley & Lardner LLP, San Diego, CA, Justin E. Gray, Foley & Lardner LLP, Madison, WI, for Plaintiff.Aaron D. Charfoos, Carl John Blickle, Eugene Goryunov, Linda S. Debruin, Maria A. Maras, Meredith Zinanni, Michael Anthony Parks, Kirkland & Ellis, LLP, Chicago, IL, Bradford John Black, Kirkland & Ellis LLP, San Francisco, CA, Marc Howard Cohen, Kirkland & Ellis LLP, Los Angeles, CA, for Defendants.
Lloyd, Howard R., United States Magistrate Judge
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO COMPEL WITHDRAWAL OF PRIVILEGE CLAIMS
NOT FOR CITATION
*1 Defendants Research in Motion Limited and Research in Motion Corporation (collectively, RIM) move for an order compelling plaintiff Mformation Technologies, Inc. (Mformation) to withdraw allegedly improper claims of privilege.[1]Mformation opposes the motion. Upon consideration of the moving and responding papers, as well as the arguments of counsel, this court issues the following order:
Preliminarily, Mformation argues that the instant motion should be denied because RIM failed to properly meet-and-confer. See CIV. L.R. 37–1(a). The record presented indicates that the parties exchanged a number of written communications and held at least two telephone conferences. Accordingly, this court declines to deny RIM's motion on this basis.
RIM's motion sought withdrawal of privilege claims as to documents that Mformation reportedly withheld on the basis of the common interest doctrine. These documents apparently included those shared with current and potential investors, as well as certain financial institutions. At the motion hearing, Mformation confirmed that it is not asserting the common interest doctrine as to any documents. Mformation also stated that it will not object to deposition questions on the basis of the common interest doctrine. Based on plaintiff's representations to the court, RIM agrees that this portion of its motion is moot.
At oral argument, Mformation confirmed that these entries have been withdrawn from its privilege log. RIM noted that it has not yet been able to review plaintiff's document production, but stated that it will accept Mformation's representation to the court. The parties shall meet-and-confer to resolve discrepancies, if any, in Mformation's document production. RIM's motion as to these privilege log entries is denied as moot.
With respect to privilege log entries 26, 38, 499, 510, and 1375, Mformation agrees to amend them to identify the legal source of the information in question. Accordingly, RIM's motion is granted as follows: Mformation shall amend these privilege log entries to clearly identify the legal person or entity involved. Mformation's amended privilege log shall be served within 14 days from the date of this order.
On February 17, 2010, RIM sent Mformation a notice specifically identifying nine Mformation documents that appeared to be privileged. That letter also generally noted that other privileged documents may have been produced. Two days later, Mformation recalled the nine identified documents. Then, after having initiated another search on April 7, 2010, Mformation recalled an additional 55 documents that it claimed were privileged and had been inadvertently produced. RIM contends that (a) Mformation simply took too long to initiate a search for privileged documents in its production, (b) plaintiff's second recall therefore is untimely, and (c) the privilege, consequently, has been waived.
*2 A disclosure of privileged materials does not operate as a waiver if the disclosure is inadvertent; the holder of the privilege took reasonable steps to prevent disclosure; and the holder promptly took reasonable steps to rectify the error. FED. R. EVID. 502(b). Additionally, pursuant to the parties' stipulated protective order, an inadvertent production of privileged materials will not constitute a waiver “provided that the Producing Party notifies the Receiving Party in writing within ten (10) calendar days after discovery of such inadvertent production or disclosure.” (Docket No. 51, ¶ 5.7).
Here, defendant argues that documents are electronically stored and any privileged documents could have been readily identified by plaintiff. For its part, Mformation says that it took pains to review (a) its entire document production (comprising, this court is told, some 3.6 million pages) to identify any privileged materials that were inadvertently produced, as well as (b) its entire production process to help ensure that privileged materials would not be disclosed on a going-forward basis. Mformation says that the additional 55 documents were recalled within 9 days after it discovered that they had been inadvertently produced. (Thakur Decl. ¶ 7). Although Mformation was perhaps not as diligent as defendant would have liked, on the record presented, this court declines to find that Mformation waived the claimed privilege as to those 55 documents. Accordingly, RIM's motion on this issue is denied.
SO ORDERED.
Footnotes
After the instant motion was filed, Mformation withdrew its privilege claims as to a number of documents on its privilege log. And, RIM has withdrawn its motion as to privilege log entries 4–6, 83, 100, 110, 136, 218, 219, 222, 226, 236–239, 324, 325, 329, 500–501, 581, 586–587, 660, 669, 788–797, 817, 841, 862–864, 1023, 1027–1030, 1083, 1283, 1305, 1408–1409, 1411–1412, 1414–1415, 1423–1424, 1497, 1503, 1505, 1516, 1578, 1600, 1635, 1636, 1637, 1639, 1641, 1643, 1669, 1676, and 1692. (See Docket No. 207, Reply at 2).