A Blog About Intellectual Property Litigation and the District of Delaware

Entries for tag: privilege

I thought this was interesting. Last week Judge Burke granted a motion to compel a plaintiff's witness to respond on questions about the plaintiff's litigation financing arrangements.

Apparently plaintiff's attorneys instructed the witness not to answer at the deposition, but in the discovery dispute they only argued that the information is irrelevant, and did not raise privilege. Since relevance is not a valid justification for an instruction not to answer under FRCP 30, the Court permitted defendant to re-ask the question and held that plaintiff's witness must answer.

About Those Redacted Versions

I say plaintiff "apparently" objected only on reasonableness grounds because plaintiff never filed the redacted version of its sealed letter brief—a common problem.

If parties continue …

You can't gain access to privileged communications by claiming your discovery request seeks "just the facts."

In a lengthy oral order yesterday, Judge Burke denied a motion to compel responses to interrogatories seeking plaintiffs' communications with their prosecution counsel.

For the first interrogatory, the decision was "not a difficult one." It sought "all facts" provided to prosecution counsel "regarding certain subject matter relevant to Defendants' inequitable conduct defenses and counterclaims." There's no way to respond to an interrogatory like this without revealing the substance of attorney-client communications.

The second was "a bit less sweeping[,]" but not by much. It asked the plaintiffs to identify all prior art and FDA correspondence provided to their prosecution counsel, including details like the day …