Free Redacted Document - District Court of Delaware - Delaware

Case 1 :04-cv-01 199-SLR Document 332 Filed 06/28/2006 Page 1 of 3
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
SRI INTERNATIONAL, INC.,
a California Corporation,
Plaintiff and
Counterclaim-Defendant, _
v_ Civil Action No. 04-CV-1199 (SLR)
INTERNET SECURITY SYSTEMS, INC.,
a Delaware corporation, FILED UNDER SEAL -
INTERNET SECURITY SYSTEMS, INC., INCLUDES CONFIDENTIAL
a Georgia Corporation, and INFORMATION
SYMANTEC CORPORATION,
a Delaware corporation,
Defendants and
Cotmterclaim-Plaintiffs.
LETTER TO THE HONORABLE SUE L. ROBINSON
AS FOLLOW-UP TO MAY 31Sl EVIDENTIARY HEARING
Richard K. Herrmann (#405)
Morris, James, Hitchens & Williams, LLP
222 Delaware Avenue, 10th Floor
P.O. Box 2306
Wilmington, DE 19899-2306
Tel: (302) 888-6800
Fax: (302) 571-1750
Attorneys for Defendant and Counterclaim
Plaintgf Symantec Corporation
OF COUNSEL:
Lloyd R. Day, Jr. (pro hac vice)
Robert M. Galvin (pro hac vice)
Paul S. Grewal (pro hoc vice)
Day Casebeer Madrid & Batchelder LLP
20300 Stevens Creek Blvd., Suite 400
Cupertino, CA 95014
Tel: (408) 873-0110
Fax: (408) 873-0220
Michael J. Schallop (pro hac vice)
Symantec Corporation
20330 Stevens Creek Blvd.
Cupertino, CA 95014
Tel: (408) 517-8000 .
Fax: (408) 517-8121
Original Date: Ju¤€ 2, 2006 l
Redacted Date; June 28, 2006

Case 1:04-cv-01199-SLR Document 332 Filed 06/28/2006 Page 2 of 3
MORRIS, JAMES, HITCHENS & WILLIAMS LLP
222 Delaware Avenue, 10th Floor
Wilmington, Delaware 19801-1621
(302) 888-6800
Facsimile (302) 571-1750
www.morrisjames.com
Richard K. Herrmann Mailing Address
(302) 888-6816 P.0. Box 2306
[email protected] Wilmington, DE 19899-2306
June 2, 2006
VIA EFILING AND HAND DELIVERY
The Honorable Sue L. Robinson FILED UNDER SEAL
United States District Court
District of lDelaware
844 King Street
Wilmington, DE 19801
Re: SRI International v. ISS and Symantec, D. Del., C.A. N0. 04-1199-SLR
Your Honor:
At the conclusion of Wednesday's evidentiary hearing on the composition and
responsibilities of Symantec's Patent Committee, the Court requested that Symantec provide
additional case law on the issue of waiver of corporate attomey—client privilege at deposition.
Specifically, the Court requested case law distinguishing the waiver of SRI's attomey-client
privilege by SRI General Counsel Richard Abramson during his deposition from the inadvertent
disclosure of privileged communication during the deposition of Symantec engineering manager
Robert Geiger.
In Commodity Future Trading Comm'n v. Weintraub, 471 U.S. 343 (1985) [Ex. A], the
Supreme Court affirmed that "the power to waive the corporate attorney-client privilege rests
with the corporation's management and is normally exercised by its officers and directors." Id. at
349.
In line with Weintraub, in Velsicol Chem. Corp. v. Parsons, 561 F.2d 671 (7th Cir. 1977)
[Ex. B], the Seventh Circuit previously held that senior corporate counsel may waive the
corporation's attorney-client privilege by disclosing privileged communications during sworn
testimony. See id. at 674 ("It is generally recognized that a corporation acts through its officers.
In the instant suit, Mitchell held the office of 'Vice-President-Legal' and as such was senior
house counsel .... Despite the protestations of Velsicol that Mitchell lacked the authority to waive
the corporation's attomey-client privilege, we are not persuaded his authority was so limited.").
The Court specifically rejected the notion that such disclosure by senior counsel at deposition
was "inadvertent," noting that it did "not find any indications . . . that [counsel] Mitchell was
operating under any misapprehension when he testified." Id. at 675
Dover (302) 678-8815 Broom Street (302) 655-2599 Newark (302) 368-4200

Case 1:04-cv-01199-SLR Document 332 Filed 06/28/2006 Page 3 of 3
Momus, ]AMEs, HITCHENS & W1LLrAMs LLP
The Hon. Sue L. Robinson
June 2, 2006
Page 2
In contrast to corporate officers and directors, "a corporate employee cannot waive the
corporation's privilege." Sprague v. Thorn Am., Inc., 129 F.3d 1355, 1371 (10th Cir. 1997)
(emphasis added) [Ex. C] (quoting United States v. Chen, 99 F.3d 1495, 1502 (9th Cir. 1996)
[Ex. D]). This is particularly true when the witness testified in his personal capacity, as opposed
to testifying as a corporate representative pursuant to Fed. R. Civ. P. 30(b)(6). Cf Adler v.
Wallace Computer Servs., Inc., 202 F.R.D. 666, 675 (N .D. Ga. 2001) [Ex. E]. Recognizing this
distinction in the municipal context, Judge Schwartz has ruled that unlike a mayor of a city, a
mere councilmember could not waive the city's attorney-client privilege by his personal
deposition testimony, even though the deposition was attended by the city's legal counsel and
that counsel failed "to assert the attorney-client privilege or object that it had been violated."
Interfaith Housing Delaware, Inc. v. Town of Georgetown, 841 F. Supp. 1393, 1396, 1399-1400
(D. Del. 1994) [Ex. F].
Mr. Abramson’s waiver clearly falls within the scope of Versicol. Like the "Vice-
President—Legal" in that case, Mr. Abramson, the "Vice President, Legal and Business Affairs
and General Counsel" for SRI, was not operating under any misapprehension when he testified.
In fact, it was his name on the distribution list for the document [Ex. G] that gave rise to any
colorable claim that the privilege applied. SRI admitted as much when it withdrew its demand
that its document be destroyed. [Ex. H] Mr. Geiger, on the other hand, was nothing more than a
"corporate employee" who testified in his personal capacity and who, when confronted with the
document, had no basis for understanding that it comprised a privileged communication. This
distinction, together with Symantec’s diligence in pursuing the return or destruction of its
document after establishing its privileged nature, undermines any colorable claim that
Symantec’s disclosure was "adve1tent” and therefore outside the scope of Paragraph 20 of the
Protective Order.
Symantec continues to appreciate the Court‘s attention to this matter.
Respectfully, .
Richard K. Herrmann
Enclosures
cc: John Horvath, Esq. (via email w/ enclosures)
David Moore, Esq. (via email w/ enclosures)
Katherine Prescott, Esq. (via email w/ enclosures)
Theresa Moehlman, Esq. (via email w/ enclosures)
Holmes Hawkins, III, Esq. (via email w/ enclosures)