A Blog About Intellectual Property Litigation and the District of Delaware


Entries for tag: 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 …

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 …