Free Redacted Document - District Court of Delaware - Delaware

Case 1 :04-cv-00360-JJF Document 108-3 Filed 03/ 1 7/2006 Page 1 of 2
ROTHWELL. FIGG. ERNST St MANBECK. P.C.
1425 K Street, N.W G. Franklin Rothwell Anne M. Sterba
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George R. Repper Patrick 'L Slléacel
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Sharon L. Davis Adam M. Treibet
Robert B. Murray Daniel L. Shores
WA Carla C. Calcagnu joseph E. Green
jeffrey L. lhnen
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Dm/ld W- Hamm, Esq- Bri; 3. Riiénléiaa @.2.2. wititbm. M
Senniger, Powers, Leavitt & Roedel wor Admmcd in DC
One Metropolitan Square, 16th Floor
St. Louis, MO 63102
Re: Trilegiant Loyalty Solutions v. Maritz
Our Reference 2829-179
Dear David:
I write in response to your J anuaiy 3, 2006 letter regarding Trilegiant’s privilege log. We
agree with you that both parties should make whatever supplementations to their privilege logs
may be necessary as soon as possible. Trilegiant will make all attempts to address the issues you
have raised in your letter by the date you request, January 16, 2006. We in turn request that
Maritz also remedy the shortcomings in its privilege log (discussed below) by that date.
We also request that by January 16, 2006 Maritz complete its production of documents
relating to its advice of counsel defense, including all attomey-client privileged communications
and attorney work product relating directly or indirectly to Maritz’s invalidity, unenforceability,
and non-infringement contentions, including those documents dated after the filing of suit. Any —
withheld documents must be included on a privilege log. In particular, we await a complete copy
of the document containing Defendant’s Deposition Exhibits 66 and 67, which we specifically
requested on December 28, 2005. Mark Shipley testified on December 19, 2005 that Maritz also
sought legal advice regarding infringement of the Netcentives patents from Thompson Coburn
LLP. All documents relating to the legal advice Maritz sought from Thompson Coburn,
including correspondence and attomey work product, must be produced.
Maritz has not produced a privilege log for the docmnents it produced in redacted form.
Please do so by January 16, 2006.
Documents 2, 3, 137, 138, 141 and 160-165 do not appear to be prepared in anticipation
of litigation and Maritz’s withholding of these documents on the basis of work product (as stated
on the log) thus is unwarranted. If the attorney-client privilege is claimed the log must be
amended to so state; otherwise these documents must be produced.
Nearly one-half of the documents listed on the log (5-10, 13—-17, 19-33, 43-49, 51 -53, 55-
75, 82, 83, 85-91, 105-107, 117-119, 168 and 171) are given the stock and uninfonnative
description that they involve a communication between counsel and client "conveying legal
advice regarding patent protection" or "c0nveying legal advice regarding obtaining patent
Ex. 2

Case 1 :04-cv-00360-JJF Document 108-3 Filed 03/ 1 7/2006 Page 2 of 2
ROTHWELI., FIGG, ERNST St MANBECK, RC, A
David W. Harlan, Esq.
January 6, 2006
Page 2
protection." Such descriptions are insufficient for Trilegiant to assess whether Maritz’s claim of ·
privilege is warranted. Further detail, including identification of the each patent or patent
application discussed in the document, is necessary for Trilegiant to assess Maritz’s claims of
privilege. For example, if the patent or patent application being discussed in the document is a
patent in suit, the document must be produced. A similar problem attends to documents 1 and
54.
More than one-guarter of the documents listed on Maritz’s privilege log (18, 34-42, 76-
80, 84, 121, 127-131, 133-142, 144-153, 155-158 and 167) are given the stock description that
they involve a communication between counsel and client regarding a "contractual agreement?
Again, without knowing the identity of the parties to the contract or the type of contract,
Trilegiant camrot assess whether Maritz’s claim of attomey-client privilege is proper. E
Accordingly, further detail is necessary. For example, if the contractual agreement being
discussed in the document relates to Maritz’s licensing or purchase of Netcentives patents, the
document must be produced.
A similar problem attends to the large number of documents (50, 81, 97, 108, 109, 120,
143, 154, 159-165 and 170) given the stock description that they involve a communication
between counsel and client regarding a "business opportu1rity" or "potential business
opportunity." Further detail, such as the identification of the parties to the business opportunity
discussed and a brief description of the opportunity, is necessary for Trilegiant to assess Maritz’s
claim of privilege.
The descriptions for documents 12, 100 and 166 do not identify the "litigation" being
discussed and are thus insufficient for Trilegiant to assess whether Maritz’s invocation of the
attomey-client privilege is proper. Similarly, more detailed descriptions of the "programs"
discussed in documents 112 and 122, and of the "employee investments" discussed in documents .
123-126 and 132, are necessary.
Lastly, approximately one-half of the documents listed on Maritz’s privilege log are
described as a "series of e-mails." Maritz has not listed all authors, recipients, and copy
recipients in these e-mail strings. Such information is necessary for Trilegiant to properly
evaluate Maritz’s claims of privilege; please supplement accordingly. Moreover, none of the
documents on the log are described as containing attachments. The log must identify e-mails and
other documents with attachments and include descriptions sufficient information to enable
Trilegiant to assess the applicability of the privilege or protection claimed.
Very truly yours,
R. Elizabeth Brenner
REB:erh
L:\2829\2829-179.Ll"I\LE'l`I`ERS\l—lARLAN.L1.DOC
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Case 1:04-cv-00360-JJF

Document 108-3

Filed 03/17/2006

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Case 1:04-cv-00360-JJF

Document 108-3

Filed 03/17/2006

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