Apple Inc. v. Samsung Electronics Co.
2015 U.S. Dist. LEXIS 45386
N.D. Cal.2015Background
- Samsung submitted 279 tabbed documents for in camera review after the court conducted an extensive review in connection with a sanctions order for protective-order violations relating to an unredacted expert report (the Teece report).
- Apple sought seven specific documents; Nokia (a nonparty) sought access to all in camera documents relevant to Nokia’s confidential information.
- Samsung asserted attorney-client privilege (and produced a privilege log and declarations); Apple and Nokia challenged the sufficiency of those assertions and argued waiver.
- The magistrate judge conducted in camera review, found that most documents were privileged on their face, but also found Samsung had put many of those privileged communications at issue and made partial/selective disclosures and broad internal distributions.
- The court concluded Samsung met its burden to show privilege generally, but that Samsung waived privilege as to a subset of documents (92 documents referencing Nokia and the seven Apple-requested documents) and ordered production to Nokia and Apple by a deadline.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Samsung sufficiently substantiated attorney-client privilege | Samsung’s log and declarations are too generic; privilege not proven | Samsung contends combined log, briefs, declarations and in camera review suffice | Court: On balance Samsung met initial burden; in camera review confirmed privilege attaches to documents as a whole |
| Whether Samsung waived privilege by putting documents at issue in sanctions/defense proceedings | Apple/Nokia: Samsung placed privileged communications at issue by arguing inadvertence/no-use and by partially disclosing contents | Samsung: Any disclosures were non-privileged or compelled; it lacked notice that asserting defenses would cause waiver | Court: Samsung waived privilege as to documents it relied on or partially disclosed; implied-waiver doctrine applies because fairness required disclosure |
| Whether selective/partial disclosures and dissemination to unrelated recipients cause waiver | Apple/Nokia: Selective disclosures and broad internal sharing defeated confidentiality and created waiver | Samsung: Disclosures were limited, for remediation, or not relevant to litigation; privilege preserved | Court: Selective content disclosures and distribution to many unauthorized recipients supported waiver for affected documents |
| Scope of remedy — full production vs. tailored production to address fairness | Apple/Nokia sought broad access to many documents | Samsung urged limited relief to avoid wholesale waiver and argued notice absent | Court: Tailored waiver: produced 92 documents referencing Nokia to Nokia and seven offered documents to Apple; declined blanket production |
Key Cases Cited
- United States v. Martin, 278 F.3d 988 (9th Cir. 2002) (elements of attorney-client privilege)
- United States v. Ruehle, 583 F.3d 600 (9th Cir. 2009) (privilege is strictly construed; asserting party bears burden)
- Burlington N. & Santa Fe Ry. Co. v. United States Dist. Court for Dist. of Mont., 408 F.3d 1142 (9th Cir. 2005) (privilege claims must provide sufficient information to enable assessment)
- Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251 (D. Md. 2008) (challenged privilege assertions require evidentiary support beyond a log)
- Amlani v. United States, 169 F.3d 1189 (9th Cir. 1999) (party cannot invoke privilege to prevent access to communications necessary to refute claims placed at issue)
- Chevron Corp. v. Pennzoil Co., 974 F.2d 1156 (9th Cir. 1992) (implied-waiver doctrine prevents using privilege both as shield and sword)
- Bittaker v. Woodford, 331 F.3d 715 (9th Cir. 2003) (court must narrowly tailor scope of implied waiver to fairness of proceedings)