Judge Bataillon just issued an eminently cite-able opinion on the scope of the common interest privilege—an issue that comes up quite a bit in the district, but is notoriously hard to pin down.
What makes this case—Fraunhofer-Gesellschaft Zur Forderung der angewandten Forschung e.V. v. Sirius XM Radio Inc., C.A. No. 17-184 (D. Del. Sept. 2, 2022) (Mem. and Order)—so useful is that the plaintiff and its alleged common interest BFF had three separate agreements which were executed at different times. This, in turn, allowed the Court to neatly lay out where along the chain of agreements the common interest privilege attached.
NDA Is Not Enough
All three agreements between Fraunhofer and IPXI (the aforementioned BFF) centered on licensing the patents in suit. The first such agreement was a non-disclosure agreement executed by both parties while they were discussing the possibility of a licensing agreement. The Court found this agreement insufficient to create any common interest privilege, noting that "An NDA does not create legal obligations beyond nondisclosure." Id. at 5. As noted in the Magistrate Judge's Order ...