MPEG LA, L.L.C.
Dell Global B.V. and Dell Products, L.P.
Submitted: September 6, 2013
Kevin F. Brady, Esq. Philip Trainer, Esq. Joseph C. Schoell, Esq. Evan Williford, Esq. Jill Agro, Esq. Toni-Ann Platia, Esq.
This matter is before me on the request of Plaintiff and Counterclaim Defendant, MPEG LA, L.L.C. ("MPEG LA"), pursuant to its motion to compel filed on July 25, 2013, that the Court review in camera certain documents identified on the privilege log of Defendants and Counterclaim Plaintiffs, Dell Global Products B.V. and Dell Products, L.P. (collectively, “Dell"). The purpose of the review was to determine whether these documents are, in fact, privileged. At oral argument on MPEG LA's motion to compel on August 22, 2013, I permitted MPEG LA to select up to sixty documents identified in Dell's privilege log for in camera review to determine whether the documents are privileged and whether the representations made in the log as to those documents are reasonable and accurate.
MPEG LA has identified three categories of documents that it asserts Dell improperly has attempted to shield from discovery by claiming that the documents are privileged. The first category ("Category One") consists of emails sent to, received by, or copied to Chad Anson, a Dell in-house legal director (managing Dell's global patent portfolio, including Dell's patent license with MPEG LA), who allegedly served in a mixed legal and business role in Dell's dealings with MPEG LA. The second category ("Category Two") pertains to emails sent among non-lawyer Dell employees that Dell asserts reflect those employees' intent to seek legal advice related to MPEG LA's royalty audit of Dell. Finally, the third category ("Category Three") relates to emails among non-attorney Dell employees "providing or seeking information to facilitate legal advice on topics related to MPEG LA."
Based on my instructions, MPEG LA requested that thirty specific documents from Category One and fifteen documents from each of Categories Two and Three be produced for in camera review. On September 6, 2013, Dell submitted those documents to the Court. In the accompanying cover letter, Dell withdrew its privilege claim for nineteen documents the contents of which Dell determined it already substantially had produced without redaction. The Document ID's for those documents are: 22369, 22371, 38731, 50542, 209458, 210138, 211065, 126721, 126722, 126745, 146700, 50563, 146934, 989784, 989905, 991122, 1077460, 1081630, and 1121620.
Before discussing the results of my review of the documents submitted, I note that a communication can qualify for the attorney-client privilege even if no party to the communication is an attorney. Under Rule 502(b) of the Delaware Rules of Evidence:
A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client (1) between the client or the client's representative and the client's lawyer or the lawyer's representative . . . (3) by the client or the client's representative or the client's lawyer or a representative of the lawyer to a lawyer or a representative of a lawyer representing another in a matter of common interest, [or] (4) between representatives of the client or between the client and a representative of the client . . . .
Furthermore, Rule 502(b) makes clear that the attorney-client privilege protects only communications themselves and not the underlying facts of those communications.
I further note that the attorney-client privilege protects legal advice only, and not business or personal advice. Where business and legal advice are inseparable in a communication—or the communication includes individuals serving in both business and legal advisory roles—the communication will be considered privileged only if the legal aspects predominate. Thus, "[i]f a communication involves a business matter rather than a legal matter, the attorney-client privilege will not protect it, even if the client's legal advisor is a party to the communication." In addition, for communications containing both business and legal advice, in which the business and legal advice can be segregated easily, they "must be produced with the legal-related portions redacted." There are circumstances, however, in which legal and business advice cannot be segregated or it is too difficult to determine if the legal issues predominate in a given communication. In those situations, the party asserting the privilege will be given the benefit of the doubt, and the communication will not be ordered produced.
With these principles in mind, as well as the comments I made during argument on August 22, I carefully have reviewed the documents Dell submitted in camera on September 6. Based on that review, I uphold Dell's attorney-client privilege claim regarding the documents associated with the following thirty-seven Document ID's: 50127, 50138, 50512, 126758, 146178, 209369, 209414, 209563, 209589, 209637, 209673, 210345, 210695, 212746, 212813, 213142, 213211, 219458, 221112, 221115, 774797, 27717, 126757, 146278, 147103, 222691, 334154, 990735, 992336, 992341, 1121762, 50695, 126818, 146518, 146815, 219798, and 334192.
I overrule in whole or in part Dell's attorney-client privilege claims regarding the documents associated with these four Document ID's: 205358, 213223, 220420, and 146519.
In the interests of brevity and efficiency, I comment below only on those documents for which I deny Dell's privilege claim. As to the documents for which I uphold Dell's privilege claims, I discuss ...