Free Memorandum and Order - District Court of Delaware - Delaware

Case 1:04-cv-00858-SLR Document 564 Filed 03/28/2006 Page1 of 2
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
LML PATENT CORPORATION, )
D
Plaintiff, )
)
v. ) Civ. No. 04-858 SLR
)
)
TELECHECK SERVICES, INC. )
ELECTRONIC CLEARING HOUSE, )
INC., XPRESSCHEX, INC., and )
NOVA INFORMATION SYSTEMS, )
INC., )
}
Defendants. )
MEMORANDUM ORDER
At Wilmington this dU$“day of March, 2006, having
reviewed defendants' objections to the October 25, 2005 rulings
of the Special Discovery Master (“SDM");
IT IS ORDERED that said objections (D.I. 362, 410) are
overruled, for the reasons that follow:
l. Defendants object to the production of some 260
documents that were ordered produced due to the abuse of the
discovery process by defendants, as perceived by the SDM. More
specifically, the record indicates that, as a matter of
expediency, defendants made available for inspection 500 boxes of
documents produced in unrelated litigation, thus leading to the
compilation of a privilege log that included hundreds of
documents that were unresponsive to the issues at bar. In
reviewing plaintiff’s objection to this log, the SDM declined to

Case 1:04-cv-00858-SLR Document 564 Filed O3/28/2006 Page 2 of 2
perform the due diligence that defendants should have performed
at the outset of their document production. In terms of managing
cases pretrial with limited resources, the SDM's reasoning is
flawless. Neither the SDM nor I have the time to do the lawyers’
job for them. Therefore, the SDM's order requiring production of
the 260 documents is affirmed. The documents produced will be
handled consistent with the most confidential of documents in
this case.
2. Defendants misunderstand the scope of waiver as I
have most recently defined it. Once a party has relied on the
opinion of counsel, that party waives the privilege as to all
documents in its possession, custody or control that have some
relevance to the subject matter of the opinion. That refers to
material that was not actually considered by, but could have been
considered by, the party. In other words, the opinions relied on
by defendants predating the Allergan case no longer reflect my
current thinking. Therefore, the SDM’s order requiring
production of documents PR 4652 and PR 2504, as well as the
“Concord documents", is affirmed.

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