A Blog About Intellectual Property Litigation and the District of Delaware


Entries for tag: Common Interest Privilege

Common Interesting Issue

Nathan R. Hoeschen, Sept. 6, 2022
Common Interest Privilege

You can see in Oreo's eyes that he does not share a common interest with the toddler
You can see in Oreo's eyes that he does not share a common interest with the toddler __-drz-__, Unsplash

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 ...

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How Common Is Your Interest?

David M. Fry, April 14, 2021
ANDA Common Interest Privilege

Earlier today, Judge Burke unsealed an interesting order addressing the applicability of the common-interest doctrine to communications between a generic pharmaceutical company and its API manufacturer.

No attorneys directly participated in most of the underlying communications, but the defendants argued that they shared "a common legal interest" with their API manufacturer in avoiding a lawsuit "and that their communications furthered that interest." Although Judge Burke found that this "argument has some initial, superficial appeal[,]" in that "the subject of these communications is in some sense legal in nature[,]" he concluded that any shared legal interest came too late:

when one contextualizes the communications with regard to what was happening in the relevant time period, Defendants have not met …
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District Judge Reverses Magistrate, Orders Production of Purported Common Interest Material

Andrew E. Russell, Dec. 6, 2020
FRCP 72 Common Interest Privilege

Corporations, looking down at the tattered remains of their common interest privilege
Corporations, looking down at the tattered remains of their common interest privilege Foggy skyscrapers, Matthew Henry, Unsplash

When magistrate judges are referred a dispositive matter, they issue an R&R that goes to the district judge. In Delaware, an R&R typically notes the objection period at the end, and the losing party typically (but not always) files objections.

When magistrate judges are referred a non-dispositive matter, they issue an order (and possibly an opinion). The order typically does not mention any review period or process for review.

What parties often forget is that you can object to a magistrate judge's order just as easily as you can to an R&R under FRCP 72. And, in fact, the District Court …

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