Free Redacted Document - District Court of Delaware - Delaware

Case 1 :04-cv-01 199-SLR Document 269 Filed 06/13/2006 Page 1 ot 3
FIS-H Sc RICHARDSON P.C. S_
Qilgtlii-L’iiI;\}/[c)3.Il{E{ Street
1=.o. Box 1114
\lVilrnington, Delaware
Frederick R Fish I9S99‘iU4
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1859-1951
June 6, 2006 fgfgtgigécy
Chief Judge Sue L. Robinson "Wcb Site
United States District Court v"'””"f""°m
844 King Street
Wilmington, DE 1980l
Re: SRI International Inc. v. internet Security Systems, Inc., et al.
USDC-D. Del. - C. A. No. 04-1 199 (SLR)
® Dear Chief Judge Robinson:
ATLANTA SRl respectfully submits this letter in response to Symanteds June 2 letter regarding
“·’“’" last wek's hearing on the status of Symanteds Invention Disclosure Form. At that
¤<>Sr<>~ hearing, the Court invited Symantec to submit authority in support of the proposition,
slim urged by counsel for Symantec, that the status of a witness as a 30(b)(6) val non was
DELAWARE relevant to whether use of an allegedly privileged document with that witness,
NEW YORK without objection, constituted a waiver. None ofthe case law Symantec has provided
U even addresses this issue. Moreover, the strained distinction Symantec has tried to
SAN mw draw between the status of witnesses and the waiver of privilege has no factual basis
SILICON VALLEY
TWIN ctrl as
wsarsaraa, DC To address the factual issue lirst, near the conclusion of the hearing, counsel for
Symantec tried to distinguish the use of an allegedly privileged document with Mr.
Geiger, a Symantec witness, from the use of an allegedly privileged document with
Mr. Abramson, an SRI witness, on the basis that Mr. Geiger was not a 30(b)(6) while
Mr. Abramson was. Specifically, Symantec counsel represented that "lvir. Geiger was
not {at the deposition] on behalf of Symantec Corporation. He was not a 30(b)(6)
witness designated to represent the company at that deposition. He was there in his
personal capacity." [Ex. A, Hearing Tr. at 53:14-17.] By contrast, Symantec asserted
that Mr. Abramson had been "identitied and tendered. . .as a 30(b)(6) witness in
addition to his personal capacity? {Id. at 59:2560:2.]
But Symantec’s representations on this point are factually inaccurate: Mr. Geiger
was designated as a 30(b)(6} witness, although not explicitly on the subject of
invention disclosure forms. [See Ex. B, February 23, 2006 Letter from Geoff
Godfrey to Katherine Prescott; see also Ex. C, Transcript of Deposition of Mr.
Geiger, at 153:21-l55:l9.] Moreover, while Mr. Abramson was designated as a
30{b)(6) witness on certain topics, counsel for Symantec expressly and repeatedly
declined to question Mr. Abramson in that capacity. [See Ex. D, Transcript of
Deposition of Mr. Abramson at l8:l2-15, 49: l2—50:l.] Thus, there is no factual
A

Case 1 :04-cv-01 199-SLR Document 269 Filed 06/13/2006 Page 2 of 3
Fisrr ec RICHARDSON 1=.c.
Chief Judge Sue L. Robinson
June 6, 2006
Page 2
predicate for the legal distinction Symantec struggles to make between the "status" of
Mr. Abramson and Mr. Geiger as witnesses, and whether the lack of objection to
allegedly privileged documents used in their respective depositions constituted a
waiver.
There is also no basis inthe case law for the proposition that whether counsel’s failure
to object to the use of an allegedly privileged document in a deposition constitutes a
waiver turns on whether the deponent was a 3·()(b)(6) witness. Indeed, Symantec has
failed to provide and SRI has failed to tind any cases which stand for that proposition.
Instead, Symantec has provided cases that concern which corporate employees can
waive the corporatiorfs privileged attorney-client communications. But that is not
the question here. The question here is whether the corporatiorfs lawyers can waive
that privilege by allowing the unfettered use of an allegedly privileged document
during a deposition.
On that question, there is case law, and the answer is clear: as an agent ofthe
corporation, a lawyer can waive privilege by failing to object to the use of a
privileged document during deposition. For example, in FC. Cycles [nfl, Inc. v. Fila
Sport, 184 F.R.D. 64 (D. Md. 1998), the defendant corporation produced a damaging
memorandum that it later contended was privileged. {See Ex. E, PT C. Cycles, 184
F.R.D. at 68-69]. During two depositions of Fila employees, plaintiffs counsel
introduced the rneinorandum as an exhibit and inquired about both it and the meeting
it mernorialized. Id. at 69. While counsel for Fila raised several objections to this
line of questioning, none pertained to attorney-client privilege. Id. The court
therefore held that because "[njo objection was raised and no attempt was made to
preserve the confidentiality ofthe docuinentmthe defendants conduct surrounding the
disclosure of themrnemorandum plainly indicates that privilege was impliediy
waived? Id. at 74 (citing Hawkins v. Stables, 148 F.3d 379, 384 n.4 (4th Cir. 1998)).
{Attached as Ex. F}
Additionally, a Kansas district court found (subsequent to the Sprague case on which
Symantec tries to rely) that there was a waiver ofthe attorney-client privilege when a
corporate employee testified about a hitherto privileged matter during his personal
deposition. [See, Ex. G, IMC Chcms., Inc. v. Niro, Inc., 2000 WL 1466495 (D. Kan.
2000)}. The IMC court held that "[clounsel for plaintifiudid not prevent the
disclosure of privileged infomation. As legal representative and agent for plaintiff, it
was his responsibility to do so. °A client waives the attorney—clientp1ivilegc . . . by
failing to assert it when information is sought in a legal proceeding."' Id. at *15
(citing Nguyen v. Excel Corp., 197 F.3d 200, 206 (Sth Cir. 1999)). {Attached as Ex.
H]

Case 1 :04-cv-01 199-SLR Document 269 Filed 06/13/2006 Page 3 of 3
FISH sr Rtcunaosorr 1>.c.
Chief Judge Sue L. Robinson
June 6, 2006
Page 3
As in the F. C. Cycles and IMC cases, counsel for Symantec failed to prevent the
disclosure of purportedly privileged infomation by objecting to questions about that
infomation. Thus, even if Mr. Geiger had not been designated as Symanteds
corporate representative, the failure of Symanteds counsel to obj ect to the use of the
invention disclosure form during Mr. Geiger’s deposition constituted a waiver of
privilege. As discussed at length at the hearing, Symantec has previously and
correctly embraced this very position. [See Ex. I, March 27, 2006 Letter from
Ionathan Loeb to Katherine Prescott (Stating that “at least one of the ranges appears
to be a document already used in the Abramson deposition that SRl did not object to
during the deposition. With regard to this document Symantec considers any privilege
objection to have been waived .... ")] There is no reason in law or fairness why
Symantec should not have to live by the same rule it espoused in Mr. Loeb’s letter,
especially given the actual facts surrounding the two depositions in question.
Respectfully s
John yath
JXH/lock _
soossvrs
cc: Paul S. Grewal, Esquire
Holmes J. Hawkins, IH, Esquire
Theresa A. Moehlrnan, Esquire
Richard L. Horwitz, Esquire
Richard K. Herrmann, Esquire