Delaware Patent Litigation Report : Delaware Intellectual Property Lawyer & Attorney : Morris James Law Firm : Delaware Patent Litigation Report

The Magistrate considers plaintiff’s motion to compel production of privileged materials where the privilege was allegedly waived by defendant.  Plaintiff specifically moved to compel production of certain documents which defendant contends are subject to a common interest privilege.  Plaintiff maintains that such documents are discoverable because the opinions of counsel shared between defendant and its supplier were not subject to the common interest doctrine or joint defense strategy.  Plaintiff further argues that defendant waived any privilege with regard to all documents and testimony related to validity and infringement of the patents-in-suit because it voluntarily produced documents which reflect advice of counsel.  As a result, it claims that defendant waived attorney-client privilege to such communications on the same subject matter.  Having reviewed the documents, the Magistrate finds that a joint client relationship existed between defendant and its suppliers, there is no evidence of waiver, and the documents are not relevant to any crime-fraud exception.  Therefore, plaintiff’s motion is denied.  Defendant’s oral motion to compel is also denied although not discussed in the Opinion.  Finally, defendant’s motion for leave to file a reply is granted given the Court’s policy of considering all submissions.