Congress, in creating the Patent Office, has expressly permitted both patent attorneys and patent agents to practice before that office. The registered patent agent is required to have a full and working knowledge of the law of patents and is even regulated by the same standards, including the Code of Professional Responsibility, as are applied to attorneys in all courts. Thus, in appearance and fact, the registered patent agent stands on the same footing as an attorney in proceedings before the Patent Office. Therefore, under the congressional scheme, a client may freely choose between a patent attorney and a registered patent agent for representation in those proceedings. That freedom of selection, protected by the Supreme Court in Sperry, would, however, be substantially impaired if as basic a protection as the attorney-client privilege were afforded to communications involving patent attorneys but not to those involving patent agents. As a result, in order not to frustrate this congressional scheme, the attorney-client privilege must be available to communications of registered patent agents.
[W]hether, in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation. But the converse of this is that even though litigation is already in prospect, there is no work product immunity for documents prepared in the regular course of business rather than for purposes of litigation.
[A] subject matter waiver (of either privilege or work product) is reserved for those unusual situations in which fairness requires a further disclosure of related, protected information, in order to prevent a selective and misleading presentation of evidence to the disadvantage of the adversary ... [S]ubject matter waiver is limited to situations in which a party intentionally puts protected information into the litigation in a selective, misleading and unfair manner.
*11 The first is when proof of a party's legal contention implicates evidence encompassed in the contents of an attorney-client communication-for example, when a client uses reliance on legal advice as a defense or when a client brings a legal malpractice action. See State v. Campbell, 913 S.W.2d 832, 837 (Mo.Ct.App.1995); see also People v. Mitchell, 454 Mich. 145, 560 N.W.2d 600, 612 n. 27 (Mich.1997) (defendant who asserts ineffective assistance of counsel waives attorney-client privilege). The second is when a client's testimony refers to a specific privileged document. See, e.g., Charles Woods Television Corp. v. Capital Cities/ABC, Inc., 869 F.2d 1155, 1162 (8th Cir.1989) (applying Missouri law to find no at-issue waiver when witness testified generally about an issue and never mentioned any particular communication); McCarthy[v.Belcher], 340 N.W.2d at 850 (attorney-client privilege waived when client testifies on direct examination about a communication).
Implied waiver deals with an abuse of a privilege .... Where society has subordinated its interest in the search for truth in favor of allowing certain information to remain confidential, it need not allow that confidentiality to be used as a tool for manipulation of the truth-seeking process.... [A party asserting attorney-client privilege] cannot be allowed, after disclosing as much as he pleases, to withhold the remainder.
Ordinary work product includes raw factual information. SeeGundacker v. Unisys Corp., 151 F.3d 842, 848 n. 4 (8th Cir.1998). Opinion work product includes counsel's mental impressions, conclusions, opinions or legal theories. See id. at n. 5. Ordinary work product is not discoverable unless the party seeking discovery has a substantial need for the materials and the party cannot obtain the substantial equivalent of the materials by other means. See Fed.R.Civ.P. 26(b)(3). In contrast, opinion work product enjoys almost absolute immunity and can be discovered only in very rare and extraordinary circumstances, such as when the material demonstrates that an attorney engaged in illegal conduct or fraud.
After the lawsuit started, I knew I have to save any evidence I had, including documents on my computer or phone. I have not deleted any evidence or documents or other information on my computer or phone related to this lawsuit.
Plaintiff shall complete the SMS Rule 30(b)(6) deposition on ESI issues, including what SMS did to preserve information on its server once it received notice of plaintiff's claims, whether there has been destruction or deletion of responsive evidence in the ordinary course of business or for any other reason, what is available on archives and backups, and what SMS did to search the server (including archives and backups) for responsive documents, including the Gonzalez memos. In addition, plaintiff shall cover during the SMS Rule 30(b)(6) deposition the nature, date and scope of the search SMS conducted on the hard drive of Gonzalez's work computer. Plaintiff may renew her motion to compel a mirror image of SMS's server and Gonzalez's work computer after completion of the Rule 30(b)(6) deposition if the information she receives so warrants. Plaintiff shall issue its Rule 30(b)(6) notice as to the topics she wishes to cover at the deposition on or before October 20, 2010. As part of this notice, she must provide how much time will be needed for the continuation of the Rule 30(b)(6) deposition.
the sole purpose of permitting him to examine the hard drive for the presence of the Gonzalez's allegedly fabricated memos. If Lanterman finds any such documents, files or fragments of these documents or any information bearing on their deletion, this material shall be delivered by Lanterman to SMS's counsel for review for privilege and confidentiality. All non-privileged material shall then be produced to plaintiff.
*36 After the lawsuit started, I knew I have to save any evidence I had, including documents on my computer or phone. I have not deleted any evidence or documents or other information on my computer or phone related to this lawsuit.
In reviewing the December 2, 2010 transcript of Mr. Spore's deposition, I notice that Mr. Spores stated that he created a logical image of a ‘specified partition’ (the F partition) on the server. This is not the same as a forensic image of all data contained on the sever. This means that Mr. Spore imaged a ‘specified’ server partition and that only documents and data stored on the that partition have been preserved.
Inspection or testing of certain types of electronically stored information or of a responding party's electronic information system may raise issues of confidentiality or privacy. The addition of testing and sampling to Rule 34(a) with regard to documents and electronically stored information is not meant to create a routine right of direct access to a party's electronic information system, although such access might be justified in some circumstances. Courts should guard against undue intrusiveness resulting from inspecting or testing such systems.
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