5.1.4

Attorney-Client Privilege

Case:

Advante International Corp. v. Mintel Learning Technology (N.D.Cal. 2008) 2008 WL 108900

Issue:

In an intellectual property dispute, was defense counsel required to return to plaintiffs’ counsel a red-lined draft interrogatory response, as inadvertently produced, prepared by a plaintiff’s principal instead of using the document in the deposition of the principal?

Holding:

No.  The Court had issued an order authorizing independent forensic examination of the plaintiff’s computer hard drive.  “There can be no real dispute that to the extent [defendant] and its counsel were exchanging draft responses to written discovery, those drafts ordinarily would be protected by attorney-client privilege, the work-product doctrine, or both.”  (Id. at *3.)  The defendant, however, failed to show that the red-lined interrogatory response was ever actually transmitted to counsel, a prerequisite to bringing the document under the protection of the attorney-client privilege.

The Court rejected defense counsel’s complaint that defense counsel would have to disclose privileged communications, such as a cover letter or “cover e-mail,” to show it had received the client’s red-line of the draft response.  All counsel had to do was submit a declaration, which would not have disclosed privileged information, that a review of the file had indicated the document had been received on a particular date.  Counsel’s failure to do so left it unable to show that the document was privileged.

Notes:

Where, as in this case, the Court exercises federal question jurisdiction, federal law controls the determination of the scope of the attorney-client privilege.  (See e.g., Fed.R.Evid. 501; City of Rialto v. U.S. Dept. of Defense (C.D. Cal. 2007) 492 F.Supp.2d 1193, 1197, note 3.)  Thus, the Court in this case neither cited nor discussed the California Supreme Court’s inadvertent disclosure decision Rico v. Mitsubishi Motors (2007)  42 Cal.4th 807 issued less than a month before this ruling.  (EQ 4.4.14.)

The Court modified the existing protective order in the case to avoid the recurring disputes that it believed had become unnecessarily contentious.  “When a party discovers that any document has been produced that bears any indicia that it may potentially be subject to a claim of attorney-client privilege or work product protection, the producing party shall be informed immediately and the document shall be returned to the producing party immediately upon request.”  (Id. at *3, emphasis in original.)