Richards Layton & Finger
 

Chief Judge Stark Requires Plaintiff to Produce Documents Withheld on Purported Privilege Grounds

March 7, 2017

In Intel Corp. v. Future Link Systems, LLC, C.A. No. 14-377-LPS (D. Del. Jan. 27, 2017), Chief Judge Stark ruled on a number of disputes concerning the parties’ privilege logs. After the initial teleconference, the Court “instructed the parties to ‘pick ten specific entries from the other side’s privilege log’ and then meet and confer regarding the chosen entries. After resolving as many disputes as possible via meeting and conferring, the parties were instructed to submit their remaining disputes and related documents to the Court for in camera review. Ultimately, the plaintiff submitted nine documents that the defendants challenged, and the defendants submitted seven at the plaintiff’s request. Chief Judge Stark went through the documents looking for substantiation of the privileges asserted. Ultimately, the Court found issues with the privilege assertions in five of the plaintiff’s documents, while holding that all of the defendants’ documents were properly withheld or redacted for privilege.

In requiring disclosure of the plaintiff’s documents, Chief Judge Stark explained that a vague reference to “legal review process” at the top of an email chain, without any “indication that the document was ever actually sent to a lawyer for legal review,” was not sufficient to render the email chain privileged. Similarly, the Court found that the designation “Legal Review pending” on the front of a document was “insufficient evidence for the entire redacted portion to be deemed privileged.” Instead, the Court implied that there needed to be something “in the content of what was redacted that would indicate what legal advice was sought or obtained, if any.” For another document Judge Stark explained that “[t]he fact that a lawyer was requested to be at a meeting, or even the fact that a lawyer attended a meeting, is not privileged.” And for the remaining documents, he emphasized that attorney review of a document does not render it privileged—“because the fact that a document was reviewed by an attorney is not enough, by itself, to make” documents privileged.

Key Points:  This case confirms that the Court will often take a close look at privilege issues and confirms certain aspects of privilege law.