We come to a different conclusion regarding the other Olympus Partners employees who, unlike Messrs. Conroy and Haddad, do not also hold positions with FFR. In doing so, we note that Olympus Partners is not necessarily the same as “Olympus” (or Olympus Growth Fund V, L.P., for that matter). It appears that both RTC and FFR have defined Olympus broadly or narrowly depending on what best suits them at the time. For instance, when asserting earlier in this litigation that Olympus owned and managed FFR, RTC defined “Olympus” as Olympus Growth Fund V, L.P.; Olympus Advisors, LLC; and affiliated investment funds (doc. # 133 at 1 n.1). Then, to define “Olympus” in a separate proceeding involving FFR’s petition to institute an inter partes review (IPR) against one of the patents-in-suit, RTC added Olympus Partners, L.P. to this list of entities (doc. # 227-2 at 32 n.1). FFR, for its part, identified both Olympus Advisors, LLC (which it also referred to as Olympus Partners) and Olympus Growth Fund V, L.P. as separate, non-parties when moving to quash subpoenas that RTC served on these entities (doc. # 72 at 1). Now, for the question of whether a privilege has been waived, the roles are reversed: RTC wants to define “Olympus” narrowly, while FFR wants to define “Olympus” broadly.
*7 We decline to resolve this dispute based on what one party or the other asserted elsewhere about the FFR-Olympus relationship when addressing different issues. See In re Knight-Celotex, LLC, 695 F.3d 714, 721 (7th Cir. 2012) (“Judicial estoppel is a matter of equitable judgment and discretion”). Instead, we have sought to determine the actual relationship between FFR and Olympus Partners, and for that, we look to the decision of the Patent Trial and Appeal Board (“PTAB”) in denying FFR’s petition to institute an IPR, which contains an explanation from a neutral third-party (the PTAB) about the relationship between FFR, Olympus Partners, and the other Olympus entities (see doc. # 155-5: IPR Denial).
As set forth in the PTAB’s decision, FFR is solely owned by FFR DSI Intermediate Holdings, Inc., which, in turn, is owned by FFR DSI Holdings, Inc. (IPR Denial, at 6; see also doc. # 17 (stating that FFR is wholly owned by FFR DSI Intermediate Holdings)). The majority shareholder of FFR DSI Holdings, Inc. is Olympus Growth Fund V, L.P. (IPR Denial, at 7). Olympus Advisors LLC, which does business under the name Olympus Partners, is a private equity and venture capital firm that provides advisory services to Olympus Growth Fund V, L.P. (Id. at 6-8). Looking at this in the opposite direction, i.e., from top to bottom, Olympus Partners (the entity at issue) provides “advisory services” to Olympus Growth Fund V, L.P., which is the majority shareholder of FFR DSI Holdings, Inc., which owns, through FFR DSI Intermediate Holdings, Inc., FFR.
Thus, the question is whether FFR has shown that, given this relationship, communications to and from Olympus Partners’ employees (at least those who are not also board members or officers of FFR) are encompassed by FFR’s attorney-client privilege. We find that it has not.
In doing so, we do not quarrel with the general proposition “that confidential documents shared between members of a corporate family do not waive the attorney-client privilege.” In re JP Morgan Chase & Co. Sec. Litig., No. 06 C 4674, 2007 WL 2363311, at *6 (N.D. Ill. Aug. 13, 2007). But FFR has not shown that Olympus Partners is a member of FFR’s “corporate family.” Olympus Partners is not in a typical parent-subsidiary or shareholder relationship with FFR. Instead, it provides “advisory services” to an entity that is in that sort of relationship—Olympus Growth Fund V., L.P., which is the majority shareholder of an entity that indirectly owns FFR.
Ultimately, it was FFR’s burden to show that disclosure to Olympus Partners did not waive its attorney-client privilege. Glenwood Halsted LLC v. Vill. of Glenwood, No. 11-CV-6772, 2013 WL 140794, at *2 (N.D. Ill. Jan. 11, 2013) (the party asserting the privilege bears the burden of establishing “that the document was not disclosed to non-privileged recipients”); Square D Co. v. E.I. Elecs., Inc., 264 F.R.D. 385, 390 (N.D. Ill. 2009) (“The party asserting the privilege bears the burden of showing that the privilege ... has not been waived”). FFR could have attempted to do so by spelling out its relationship with Olympus Partners—one where Olympus Partners provides advisory services to an entity that indirectly owns a majority of FFR—and then arguing that case law supports extending the attorney-client privilege to communications between entities in identical or similar set-ups. Instead, FFR chose to merely rely on RTC’s assertions about the “Olympus” relationship with FFR and case law that addresses, in general terms, the attorney-client privilege in the context of corporate relationships. In these circumstances, and given that the attorney-client privilege must be construed narrowly, Evans, 113 F.3d at 1461, FFR did not meet its burden. FFR must therefore produce any withheld documents or information that was disclosed to or by employees of Olympus Partners who are not also board members or officers of FFR.
As part of its motion raising the overarching issues discussed above, RTC has requested our in camera review of 30 documents withheld or redacted by FFR (Pl.’s Mot. at 4-6). These documents correspond to FFR’s log entries 2, 68, 78, 169, 229, 304, 305, 310, 312, 313, 366, 410, 528, 566, 682, 814, 856, 860, 869, 977, 984, 995, 1033, 1048, 1055, 1066, 1068, 1083, 1085, and 1087 (Id.). FFR asserts attorney-client privilege over all these documents (Def.’s 2d Am. Priv. Log at 1, 10, 12, 21, 31, 47, 48, 55, 67, 87, 90, 102, 109, 112-14, 122-23, 125-28). We address FFR’s privilege assertion with respect to each document below.
*11 Log entry 2 (redactions to FFR007553): This log entry represents seven redactions to a document that includes a timeline of events with additional comments. FFR describes the redactions as “reflecting legal analysis and advice from counsel regarding intellectual property strategy and analysis” (Def.’s 2d Am. Priv. Log at 1).
We agree with FFR’s privilege assertion for many of the redactions, and we find the redactions for the following timeline entries proper: 4-11-2012, 8-13-2014, 9-24-2014, 10-2-2014, and 2-20-2015. But the remaining two redactions, i.e., the redaction for timeline entry 2-2015 and the redaction of item 3 on the list of “Lessons Learned and Lessons Proven,” are not proper. None of this information reflects legal analysis or advice from an attorney, as FFR asserts. Thus, FFR must produce FFR007553 without these latter two redactions.
Log entries 68 (redactions to FFR009994) and 78 (redactions to FFR010008): The corresponding documents are two versions of an operations and marketing overview document. Log entry 68 represents three redactions, and log entry 78 represents five redactions. FFR describes the redactions on both documents as “reflecting legal analysis and advice of counsel regarding intellectual property strategy” (Def.’s 2d Am. Priv. Log at 10, 12).
None of the redactions corresponding to log entries 68 and 78 fit this description. Instead, the redacted passages merely refer to or describe business projects or strategies that appear to involve the review and monitoring of intellectual property. See ChampionsWorld, LLC v. U.S. Soccer Fed'n, 276 F.R.D. 577, 589 (N.D. Ill. 2011) (“[C]ommunications regarding business strategy are not governed by the attorney-client privilege”); see also Harmony Gold U.S.A., Inc. v. FASA Corp., 169 F.R.D. 113, 115 (N.D. Ill. 1996) (explaining that for the attorney-client privilege to apply, legal advice “must be the predominant element in the communication” and that the privilege “will not apply where the legal advice is incidental to business advice”). Nowhere do we see legal advice or analysis disclosed. Thus, FFR must remove the redactions from FFR009994 and FFR010008.
Log entry 169: This document contains analyses of patents that would typically come from an attorney or be prepared for an attorney, and FFR describes it as an attachment “reflecting legal analysis and advice of counsel regarding patents” (Def.’s 2d Am. Priv. Log at 21). Based on our review of the document, we find FFR’s assertion of attorney-client privilege appropriate.
Log entry 229 (redactions to FFR016541): The corresponding document is a spreadsheet that contains two redactions. The first redaction conceals everything on a sheet titled “Develop a market-leading Intellectual Property Capability,” and the second redaction conceals a sentence on a sheet titled “Pull Out, Drop Down Shelf (PODD).”
FFR says this redacted information “reflect[s] legal analysis and advice of counsel regarding intellectual property analysis and strategy” (Def.’s 2d Am. Priv. Log at 31). It does not. A mere reference to intellectual property in a document does not equate to the conveyance of legal analysis and advice, and nothing in the two redactions represented by log entry 229 reveals any legal analysis or advice. FFR must produce FFR016541 without redaction.
*12 Log entries 304 and 305: Log entry 304 is an August 8, 2012 email from Stan Burson, FFR’s president and CEO, to Messrs. Haddad and Conroy, and log entry 305 is the attachment to that email. The attachment contains an attorney’s proposed revisions to a document, and the email requests input from Messrs. Haddad and Conroy about the proposed revisions. We find that these two documents have been properly withheld as subject to the attorney-client privilege.
Log entry 310: This document is nearly identical to the document corresponding to log entry 305. We find that it is privileged for the same reasons as log entry 305.
Log entry 312: This is an email sent from FFR’s president and CEO on August 13, 2012 to attorneys and another FFR officer. Although the email was sent to attorneys, it does not disclose anything governed by the attorney-client privilege. Rather, the email only says that it is attaching documentation for an upcoming conference call without disclosing the subject matter of the documentation or the conference call. Thus, it is not privileged, and we order FFR to produce the document. See Towne Place Condo. Ass’n v. Phila. Indem. Ins. Co., 284 F. Supp. 3d 889, 895 (N.D. Ill. 2018) (“Merely communicating with a lawyer or copying a lawyer on an otherwise nonprivileged communication, will not transform the non-privileged communication or attachment into a privileged one, even if the otherwise non-privileged communication was at the behest of the lawyer”); McCullough v. Fraternal Order of Police, Chi. Lodge 7, 304 F.R.D. 232, 237 (N.D. Ill. 2014) (“[S]imply copying a lawyer on an otherwise nonprivileged communication will not transform the non-privileged document into a privileged one”).
Log entry 313: This is the attachment to the August 13, 2012 email corresponding to log entry 312. It is a 27-page collection of emails sent among various FFR employees. FFR has withheld it on the basis that it was “prepared for the purpose of requesting legal analysis and advice from counsel regarding product samples legal strategy” (Def.’s 2d Am. Priv. Log at 48), and it does appear that the emails were collected and sent to attorneys for discussion at an upcoming conference call.
However, that does not make the email attachment privileged. The emails are communications between various FFR employees—none of whom are attorneys—and none of the communications say anything touching upon the need or desire for legal analysis or advice. True, the attachment contains some markings that presumably identify certain emails that are particularly relevant, but these markings do not rise to the level of a communication meant to be protected by the attorney-client privilege. In short, the emails themselves do not contain anything that could be reasonably deemed to be privileged, and non-privileged documents do not become privileged simply because they are sent to an attorney. See Towne Place Condo. Ass’n, 284 F. Supp. 3d at 895; McCullough, 304 F.R.D. at 237; Muro v. Target Corp., No. 04 C 6267, 2006 WL 3422181, at *5 (N.D. Ill. Nov. 28, 2006) (“Attachments which do not, by their content, fall within the realm of the privilege cannot become privileged by merely attaching them to a privileged communication with the attorney”). We order FFR to produce the document corresponding to log entry 313.
Log entry 366 (redaction to FFR018057): FFR describes this redaction as concealing information that “reflect[s] legal analysis and advice of counsel regarding intellectual property analysis and strategy” (Def.’s 2d Am. Priv. Log at 55). The redacted information does not do so; it merely identifies, as part of the agenda for a meeting, a current challenge that involves intellectual property. FFR must produce FFR018057 without redaction.
*13 Log entries 410 (redactions to FFR018530) and 528 (redactions to FFR019029): These entries correspond to three redactions applied to two versions of a product development update document. FFR describes these redactions as protecting “legal analysis and advice of counsel regarding intellectual property strategy, analysis, issues and activities” (Def.’s 2d Am. Priv. Log at 67, 87).
FFR must remove the first redaction to both documents, which is under the “Project Missed/Delayed Opportunity” section. The redacted information does not reflect legal analysis or advice, and it is similar to many other redactions that we are requiring FFR to remove. FFR must also remove the third redaction to both documents, which is under “Patent Issues and Activities.” The redacted information merely reports the status of certain patents and patent applications; it does not, in contrast, contain any legal analysis of those patents and patent applications or render any legal advice based on the status of those patents and applications. FFR, however, need not remove the second redaction to both documents, which is located under “16. PZSS Slow Feed Pusher.” The redacted information here reflects legal advice or analysis and is properly redacted on the basis of attorney-client privilege.
Log entry 566: This document is an unmarked, publicly-available patent application publication. The document itself is not a request for or transmission of legal advice, and it contains no attorney notes or other markings that could reasonably constitute an attorney-client communication. Nor is the document privileged simply because it is attached to another purportedly privileged communication. Muro, 2006 WL 3422181, at *5. Thus, the document corresponding to log entry 566 is not privileged, and we order FFR to produce it.
Log entry 682 (redactions to FFR038099):
FFR identifies this document as a September 16, 2015 email communication from Mike Brinkman to Thad Brej (Def.’s 2d Am. Priv. Log at 102), but, in fact, the document is an email chain consisting of three emails. The redacted portion at issue is found in the first email of this chain, which was sent on September 10, 2015. FFR describes the redacted portion as “reflecting legal analysis and advice of counsel regarding intellectual property analysis” (Id.).
We disagree. The September 10, 2015 email summarizes what happened at a meeting held that day among several FFR employees—Greg Bird, Shane Obitts, Mark Crawford, Mike Brinkman, Thad Brej, and Lance Hutt—so presumably the redacted information represents something that was done or discussed by these individuals during the meeting. But none of these individuals are attorneys (Def.’s 2d Am. Priv. Log, at “Names and Capacities of Persons on FFR’s Second Amended Privilege Log”), and there is no indication from the document that the redacted information was relayed to the group by an attorney. Rather, it appears that the meeting attendees themselves carried out the discussion and activity that has been redacted. FFR must remove the redaction corresponding to log entry 682.
*14 Log entry 814 (redaction to FFR079633): This log entry relates to information redacted from an operations meeting document. FFR identifies the author as Suzanne Jakubec, who is the CEO’s executive assistant, and describes the redacted portion as “reflecting legal analysis and advice of counsel regarding intellectual property issues and activities” (Def.’s 2d Am. Priv. Log at 109; id., “Names and Capacities of Persons on FFR’s Second Amended Privilege Log,” at 2).
The redaction is improper. Even if FFR showed that the redacted information was provided by an attorney—which it has not done, as the author of the document is not an attorney—the information merely reports the status of certain patents and patent applications. It does not contain any legal analysis of those patents and patent applications or render any legal advice based on the status of those patents and applications. FFR must produce FFR079633 without redaction.
Log entry 856 (redactions to FFR048378): This entry corresponds to redactions applied to a Strategic Growth Planning Meeting presentation authored by Paul Bloom, an FFR employee who is not an attorney (Def.’s 2d Am. Priv. Log at 112; id., “Names and Capacities of Persons on FFR’s Second Amended Privilege Log,” at 1). FFR characterizes the redacted information as “reflecting legal analysis and advice of counsel regarding intellectual property strategy” (Def.’s 2d Am. Priv. log at 112).
We agree with this characterization with respect to the redaction on page 77 under “Costs to exit:,” and FFR can maintain this redaction. But FFR must remove all other redactions to FFR048378, i.e., the nearly full-page redaction on page 64 and the redaction to the first bullet point under “Steps to exit:” on page 77. The information redacted on page 64 merely describes a product or project of FFR’s without disclosing any legal analysis or advice, and the information redacted on page 77 under “Steps to exit” is at a level of detail similar to what one would expect on a privilege log. In short, neither of these latter two redactions conceals information protected by the attorney-client privilege.
Log entry 860: FFR identifies this document as a February 4, 2016 email communication from Mike Verdile, FFR’s vice president of sales and a non-attorney, to several other non-attorney FFR employees (Def.’s 2d Am. Priv. Log at 113; id., “Names and Capacities of Persons on FFR’s Second Amended Privilege Log”). In actuality, the document is an email chain consisting of three emails, none of which contains attorney-client privileged information. The earliest email is from an attorney (Jay Moldovanyi) to FFR employees, but it merely identifies the document attached to the email and refers to the subject matter of a prior report from counsel without getting into the details of any legal advice. The latter two emails involve no attorneys, and there is no indication that these emails were sent as “prepar[ation] for the purpose of requesting additional legal analysis and advice of counsel regarding intellectual property review and strategy” (Def.’s 2d Am. Priv. Log at 113). FFR must produce the emails corresponding to log entry 860.
Log entry 869: This entry corresponds to (1) an email with attachments sent by an attorney, William Berndt, to Mr. Burson, another attorney, and other FFR employees, and (2) Mr. Burson’s forwarding of the email and attachments to his executive assistant. The first email reflects legal advice from Mr. Berndt, and the second email implicitly does so as well. We find FFR’s assertion of attorney-client privilege appropriate for this log entry.
*15 Log entries 977 and 984: The document for log entry 977 is an email communication from Mr. Moldovanyi and the document for log entry 984 is a communication sent from a law firm. FFR accurately describes both these documents as “reflecting legal analysis and advice of counsel regarding patent issues” (Def.’s 2d Am. Priv. Log at 122). FFR’s assertion of attorney-client privilege over these two documents is proper.
Log entry 995 (redactions to FFR052558): This document is a spreadsheet titled “FFR-SDI Charter Template.” FFR identifies Jerry Szpak, a senior project engineer at FFR who is not an attorney, as the author of the redacted information, but it does not identify a recipient (Def.’s 2d Am. Priv. Log at 123; id., “Names and Capacities of Persons on FFR’s Second Amended Privilege Log,” at 3). The redacted information at issue falls under different sections, which are titled “Project Description (business case),” “Project Deliverables,” “Project Scope,” “Project Risks / Additional Comments,” and “Key Project Milestones.” FFR describes the redacted information as “privileged and confidential [information] requesting legal analysis and advice from counsel regarding patent issues and Power Zone Pre-Set” (Def.’s 2d Am. Priv. Log at 123).
The information redacted from FFR052558 is not privileged. First, there is no indication that the information was sent to or intended for review by an attorney, so FFR has not shown that it is a “request[ ]” for “legal analysis and advice from counsel.” Second, although the redacted information refers to legal terminology, it does not reflect legal analysis or advice. To the contrary, the legal references are so high level that they are like the descriptions that would appear in a privilege log without waiving any applicable privilege. Thus, we order FFR to remove its redactions from FFR052558.
Log entry 1033 (redactions to FFR079686): FFR has redacted several entries in a 243-page “New Product Flow” spreadsheet on the basis that they disclose a “request for legal analysis and advice of counsel regarding patents” (Def.’s 2d Am. Priv. Log at 125). The redacted information does not implicate the attorney-client privilege. For one thing, there is no indication that the spreadsheet was sent to or intended for review by an attorney, so FFR has not shown that it is a “request for legal analysis and advice of counsel.” As is the case with log entry 995, FFR has not identified a recipient for the redacted information, let alone an attorney recipient who would potentially give legal analysis and advice about it (Id.). Moreover, the redactions, which are all found in a “Product Status” column, merely indicate that as part of a certain product’s development, either a particular attorney is to review a particular set of patents or a patent needs to be reviewed by an attorney. Identifying the fact (but not the substance) of an attorney’s patent review as a step in product development does not disclose the type of information protected by the attorney-client privilege. Thus, FFR must produce FFR079686 without any redactions.
Log entry 1048 (redaction to FFR052084): This entry represents a redaction on a document that was sent to several individuals from Olympus Partners—Robert Morris, Jim Conroy, Pete Tedesco, and Matt Boyd (Def.’s 2d Am. Priv. Log at 126). As discussed above, the presence of Messrs. Morris, Tedesco, and Boyd, i.e., Olympus Partners employees who are not also board members or officers of FFR, waives any attorney-client privilege that may have applied to the redacted information. FFR must produce FFR052084 without redaction.
*16 Log entries 1055 (redaction to FFR052282), 1066 (redaction to FFR052415), 1083 (redaction to FFR052576), 1085 (redaction to FFR052562), and 1087 (redaction to FFR052566): All these entries correspond to a redaction found under a section titled “Professional Fees” in an income statement regarding product development. The redacted information in each document is similar, and the redactions corresponding to log entries 1066, 1085, and 1087 conceal the same exact information (just in three different documents). FFR describes the redacted information in these log entries as “privileged and confidential [information] reflecting legal analysis and advice of counsel regarding” patents or intellectual property issues and activities (Def.’s 2d Am. Priv. Log at 126-28).
None of the information redacted by FFR with respect to these log entries is protected by the attorney-client privilege. First, the redacted information identifies a law firm and a category of engineering and legal expenses or services, both followed by a monetary amount. But the identity of a client ordinarily “does not come within the scope of the [attorney-client] privilege,” BDO Seidman, 337 F.3d at 811, so the identities of the attorneys working for FFR are likewise not privileged. See also Nat’l Union Fire Ins. Co. v. Conti Ill. Grp., Nos. 85 C 7080, 7081, 1988 WL 79521, at *2 (N.D. Ill. July 22, 1988) (the identification of “persons who participated in legal work” does “not fall within attorney-client privilege”). In fact, FFR’s privilege log already identifies several law firms that employ the attorneys with which its employees have communicated, including the name of the law firm that was redacted in the documents at issue (see Def.’s 2d Am. Priv. Log, at “Names and Capacities of Persons on FFR’s Second Amended Privilege Log”).
Second, the charges for a law firm’s services and the amount of other services or expenses (even if, in part, legal) are not privileged pieces of information. See Leonard-Allen, 739 F.3d at 953 (“[I]nformation about attorneys’ fees ... falls outside the scope of the [attorney-client] privilege because fees are incidental to the substance of representation”); Pandick Inc. v. Rooney, No. 85 C 6779, 1988 WL 61180, at *2 (N.D. Ill. June 3, 1988) (finding that attorney time-sheets and billing statements that did not disclose “[t]he substance of the work performed or matter discussed” were not privileged); Phillips v. Nexstar Broad. Grp., Inc., No. 3:12-CV-69-RLY-WGH, 2013 WL 840789, at *1 (S.D. Ind. Mar. 6, 2013) (noting that most courts addressing the issue have found that billing statements for legal services are discoverable).
Third, the remaining statements simply comment on the preceding monetary amounts and other expenses. We see nothing in these statements that can be reasonably read as disclosing a lawyer’s thinking or a communication for the purpose of receiving legal advice. See Bey, 772 F.3d at 1101; Leonard-Allen, 739 F.3d at 953. Thus, we order FFR to remove its redactions from FFR052282, FFR052415, FFR052576, FFR052562, and FFR052566.
Log entry 1068 (redactions to FFR052634): This entry corresponds to five redactions applied to an “Acquisition Candidates” spreadsheet that was sent by Paul Bloom of FFR to Messrs. Conroy, Haddad, and Burson, none of whom are attorneys (Def.’s 2d Am. Priv. Log at 127; id., “Names and Capacities of Persons on FFR’s Second Amended Privilege Log”). FFR describes the redactions as “requesting legal analysis and advice from counsel regarding patents” (Def.’s 2d Am. Priv. Log at 127).
These redactions are improper as well. The document was not sent to an attorney, so it is unclear how it can contain a “request[ ]” for “legal analysis and advice from counsel.” More substantively, though, none of the redacted portions reflect anything that could be reasonably construed as a request for legal analysis or advice. Thus, we order FFR to remove its redactions from FFR052634.
FFR moves to compel RTC to produce withheld documents that were shared with third parties (Def.’s Mot. at 3-4). For ease of reference, we have grouped these documents, which have been submitted for our in camera review, into four categories.
Category 1 (log entries 1242, 1946, 2831): These are communications that RTC describes in its Rule 37.2 response as “[e]mail[s] at the direction of legal counsel to consultant providing information for the purpose of obtaining consultant’s assistance with trial preparation re:” potential or pending litigation (Def.’s Mot. at 3-4; Pl.’s Rule 37.2 Resp. at 4). RTC describes entry 1242 as a January 9, 2008 email sent by Richard Nathan (RTC’s CEO) to William Spizman; entry 1946 as a September 19, 2016 email sent by Pierre-Alain Weill to Mr. Nathan, and entry 2831 as an October 13, 2016 email sent by Ed Tchai to Mr. Nathan (Pl.’s Orig. Priv. Log at 83, 130, 200).
In its original privilege log, RTC identified only attorney-client privilege as a basis for withholding these documents, and in its Rule 37.2 Response, RTC did not indicate that it was adding work product as a basis for withholding (Pl.’s Orig. Priv. Log at 83, 130, 200; Pl.’s Rule 37.2 Resp. at 4). Nonetheless, at the parties’ subsequent meet and confer, RTC’s counsel suggested that it was withholding these documents because of both attorney-client privilege and work product (8/13/19 Tr. (Part 2) at 82:8-87:23), and RTC added work product assertions in the portions of the privilege log we received with its submission of documents for in camera review. RTC’s counsel further specified that the Category 1 documents were communications with consultants or experts with respect to trial preparation that were protected from disclosure under Federal Rule of Civil Procedure 26 (Id. at 84:22-85:21, 86:24-87:13). RTC contends that, in any event, these communications are not relevant (Id. at 89:13-23; Pl.’s Rule 37.2 Resp. at 4).
*19 The only timely assertion of privilege made by RTC was attorney-client privilege, and based on our in camera review, this privilege does not apply because none of the documents reflect a “lawyer’s thinking” or a communication “made for the purpose of eliciting the lawyer’s professional advice or other legal assistance.” Leonard-Allen, 739 F.3d at 953. Moreover, as already discussed, RTC has forfeited any claim that the documents it logged are not relevant to this litigation. Accordingly, RTC must produce the Category 1 documents.
Category 2 (log entries 3918-3963): This category consists of an email sent by Jamie Bauer to John Ward at RTC (log entry 3918) and attachments to that email (log entries 3919-3963) (Def.’s Mot. at 4; Pl.’s Orig. Priv. Log at 272-74; Pl.’s Rule 37.2 Resp. at 3). According to RTC, Mr. Bauer is a “joint inventor with RTC employees on patents unrelated to this case” and Mr. Bauer and RTC “were jointly prosecuting the patents and developing prosecution strategies with Banner & Witcoff and Brown & Michaels PC attorneys” (Pl.’s Rule 37.2 Resp. at 3). RTC contends that the documents in this category are neither “relevant to any issue in this case nor ... responsive to any of FFR’s Requests for Production” (Id.). Nonetheless, RTC agreed to update its privilege log as follows:
• Log entry 3918: “Non-responsive email chain providing information for the purpose of obtaining legal advice of attorney Joseph J. Berghammer from Banner & Witcoff, Ltd. re: patent prosecution”
• Log entries 3919-3963: “Attachments to non-responsive email chain providing information for the purpose of obtaining legal advice of attorney Joseph J. Berghammer re: patent prosecution”
There is no indication that Mr. Bauer is employed or retained by RTC in any manner; so, despite his alleged joint inventor status with RTC employees, he is a third party. The general rule is that a client (here, RTC) cannot deem as privileged a communication involving a third party because the third party’s involvement negates the attorney-client privilege. See Burden-Meeks, 319 F.3d at 899 (“Knowing disclosure to a third party almost invariably surrenders the [attorney-client] privilege with respect to the world at large”); Miller UK Ltd. v. Caterpillar, Inc., 17 F. Supp. 3d 711, 731 (N.D. Ill. 2014) (“Since the purpose behind the attorney-client privilege is to encourage full disclosure to one’s lawyer by assuring confidentiality, disclosure to a third party that eliminates that confidentiality constitutes a waiver of the privilege”); see also Pl.’s Rule 37.2 Ltr. at 3. There are exceptions to this general rule, but RTC’s Rule 37.2 response does not cite any case law or make any legal argument to support the application of any such exception to Mr. Bauer (Pl.’s Rule 37.2 Resp. at 3, 5). In short, RTC has failed to establish that its attorney-client privilege encompasses Mr. Bauer. Thus, we order RTC to produce the Category 2 documents.
Category 3 (log entries 13485, 14466, 14889, 15427): These are emails (or email chains containing emails) sent to Jamie Bauer (Def.’s Mot. at 4; Pl.’s Rule 37.2 Resp. at 5; Pl.’s Orig. Priv. Log at 1028, 1101, 1133, 1172). As with the Category 2 documents, RTC contends that the Category 3 documents are neither responsive nor relevant but has offered to update its privilege log to reflect their non-responsive and irrelevant nature (Pl.’s Rule 37.2 Resp. at 5).
RTC must produce the Category 3 documents for the same reasons it must produce the Category 2 documents. Without a showing by RTC that an exception applies, Mr. Bauer’s presence on the communications destroys any attorney-client privilege RTC could claim. Thus, RTC must produce the Category 3 documents.
*20 Category 4 (log entry 15469): This is an email from A1 Menz that RTC contends “is not relevant to any issue in this case nor responsive to any of FFR’s Requests for Production” (Def.’s Mot. at 4; Pl.’s Orig. Priv. Log at 1174; Pl.’s Rule 37.2 Resp. at 5). Even so, RTC has agreed to update its description of this document as follows: “Non-responsive email chain reflecting legal advice from Banner & Witcoff, Ltd. re: patent prosecution of yogurt merchandiser system” (Pl.’s Rule 37.2 Resp. at 5). At the parties’ meet and confer, RTC’s counsel asserted that Mr. Menz was a joint inventor working with RTC on a yogurt merchandiser system patent that Banner & Witcoff prosecuted (8/13/19 Tr. (Part 2) at 98:18-100:7).
The Category 4 document involving Mr. Menz falls into the same camp as the Category 2 and Category 3 documents involving Mr. Bauer. There is no indication that Mr. Menz is employed or retained by RTC in any manner, so he is a third party regardless of his alleged status as a joint inventor. As with Mr. Bauer, RTC’s Rule 37.2 response does not cite any case law or make any legal argument to support extending RTC’s attorney-client privilege over Mr. Menz (Pl.’s Rule 37.2 Resp. at 5). RTC must produce the Category 4 document as well.