Free MEMORANDUM in Support - District Court of Delaware - Delaware

Case 1:04-cv-01494-JJF Document 146-2 Filed O4/16/2007 Page 1 of 2 _
Page 2 01*3
Wéestfomz
Nei Reponed in A.2d Page 1
Noi Reported in A.2d, 1992 WL 149502 {Del.5u;>er.`}
(Cite as: N0tRe;;zortedi11 Aid)
i-I Deposition Exhibi: No. 275. The document is a
international Business Machines Corp. v. 0x1e—page memomndum that does not indicate who
Comdisco, Inca the intended recipients were, amd has only the
De1.S11per.,1992. initials of one of the authors, Gary Musto, in ihe
Only the Wmiaw ciwiivn is cwemiy available- bottom iefr-hand come;. Fm This document had
UNPUBLISHED OPINEONCHECK COURT been produced by piaimiffs to defendant during
RULES BEFORE C¥HNG· discovery and then returned to plaimifié on request.
Superior Court of Delaware, New Castie County. FN2 Piaimiffs asscmid that {hg document was
H`€TE‘RNATIONAL BUSINESS MACHENES protected by the aztomeymiiem privilege and had
CORPORATION, a New Y ork corporatzon, IBM been imdvgmamly pmduced
Credit Corporation, aa Delaware corporation, and
G¤*¤¤¤W1¤h1-¤b¤¢¥i985 L1m“(?dPm`¥“€TSh1p· 3 Defendant argues first that the document is not
Dclawmg hmmé paYm€*Si“P# Pk“““§S= privileged because Gary Musto was unaware that it
_ T V" _ was being written For the purpose of receiving legal
COMDISCO, INC., a Delaware coxporzmon, advkm
Defendant.
C-A·I`*°- 91'C'87'199‘ Delaware Uniform Ruies of Evidence, Rule 502,
Submitted; Jung 9, 1992. ;;£Ic;rI1;n§3nI;awyer—Client Privilege, provides, in
Dgmded: km'? 22¤ I992 (E2) Generai Rule of Privilege. A ciient has a
privilege to refuse to disciose and to prevent any
4 g _ _ other person from ciisciosirzg confidential ,
Comélmols MOB?} {O Cqmpel Pmdu°?E°n Of commnmications made for the purpose of fhciiitatiaog
DefcndamsD€?°°Sm°HExh1b*tN°· 275* Demcd the rendition of professional legal services to the
_ _ _ client (E) between himsekf or his representative and
R· F1-fmkim Baiotth him Aj Parkmsi JB AHH C' his iawyer or hislawyefs representative,
Foster, Rachards, Layton & Fmger, Wilmington, for
¥’]·am€ffS· _ ` _ The burden of proving that the privilege applies to a
A, Gdchmet Qlparks, IUI, Qonaid F. Parsons, Jr., CC_mmunic&tiGu is On the mmm asserting thc
Dcmald E R€1d= Moms, N1°h°zS’ Argh; & Tumelh privilege. Moyer v. Moyer De1.Supr. 602 A.2d 68
Wilmington, for defendants. 72 (1992} ’ °
O’°L’”OiW~`”? ORDER The afiidavits and deposition excerpts provided to
GOI#DSTE‘IN¤ h?dgc· _ _ the Court support pEai11tiffs' assertion that the
*1 This case arases out of zz semes of transactions document is privileged. IBM Cmdit Comcmiods
involving an expensive and highiy sophisticated cmmsci requested me preparation Of the
Compete? System mfmufacmd end Owd W aaaaaaaaaaaaa from {BM Credit employee Kan
plaintiffs and subieased by Defendant; Defendant ts Graham for the purpcgc Of rendering kcal advice;
aiieged to baave commiued vzuious torts by soiling Mr, Gréham imtmcmd Iighff Credit eripicyce Mr,
¤¤d_¤1¤h€* Subicawg ¤¤m¤<>¤¢mS Of the m¤¤¤¤¤¤ Musto to gather s0mei¤f`o1rmation faaaaa aaaaaaaaa.
d¤*1¤g¤h·¢*€¤S¤p€¤¤<*· Mr. Musto did so amd wrote severai paragraphs of
__) _ _` the one page memorandum, aithough he did not
On May -°» lm ¤¢*"e¤¤m%* C¤m}m·¤¤ M 3 know the purpose ofthe aaaaaaaaaaa aaa. Graham
Menon io Compel Producuoo of Defendants, www the remaining portions Of me memo and
© ZOO? Thomson/West. No Ciaim to Orig. U.S. Govt. Works.
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Case 1:04-cv-01494-JJF Document 146-2 Filed O4/16/2007 Page 2 of 2
Page 3 of 3
Not Reported in A..2d Page 2
ééot Reported in A.2d, 1992 WL 149562 (DeE.Suner.)
{Cite as: Net Reported in Aid)
assured the documents delivery to counsel. Under FN2. The parties in this case have entered
these circumstances I rind plaintilis have sustained into a stipulated umbrella protective order
their burden of proving that the document is governing coniidential and privileged
protected by the attorney-client privilege. See documents, which Xi signed into an order on
Moyer v. Moyer, supra. February 18, 1992. Paragraph 13 of the
Order provides that privileged documents
Defendant also argues that even if the document is inadvertentiy produced during discovery
privileged, plaintiffs waived the priviiege because must be returned to the producing party on
the document was produced E4 months before the request without prejudice to or waiver of
privilege was asserted, it was introduced and the priviieged nature of the documents.
discussed at tive depositions, inctuding Mr. '1"ne paragraph further provides, mlvilti party
Mustds, before the privilege was asserted, and returning such material may then move the
plaintiffs provided the names of Messrs. Musto and Court for an Order coinpeliing production
Graham as the authors of the memo in answer to an of the material, but said motion shall not
interrogatory months before asserting the privilege. assert as a ground for entering such an
Order the fact or circumstances of the
Through the affidavit of Howard Weber, an inadvertent production?
attorney for plaintiffs in this lawsuit, plaintiffs
counter that they have reviewed more than 2.2 FN3. `?laiuti€`fs also point out that fi 13 of
million pages of documents, and have produced the stipulated protective order (see fn 2.,
more than 1.6 rniiiiori pages of materials to supra ) provides that the circumstances
defendant. An elaborate review process has been surrounding any inadvertent production of
set up to avoid inadvertent disciosure. Moreover, privileged documents may not be raised as
since nothing on the face of the document indicates grounds for an order coinpeliing
its privileged nature, it was not until the day before production of such documents. lt appears
Mr. Graiianfs deposition, when counsel was that this mandate is applicable here, given
reviewing various documents with Mr. Graham in that Defendant is asserting as a ground for
preparation for the deposition, that the privileged conipeited production the circumstances
nature of the document was discovered. On that surrounding plaintiffs' inadvertent
day, May l2, i992, pl’aintii`fs immediately asserted disclosure.
the privilege and requested the return of the Dei.Super.,l992.
document. Based on these facts I iind that International Business Machines Corp. v.
disclosure was inadvertent and the artomey»client Comdisco, Inc.
privilege nas not been waived.m3 See Monsanto Not Reported i¤ A-2d, W9? WL i495O2
Co. v. Aetna Casualty and Surety Ca., i)e1.Supet., (D€>l·S¤P€¥'·)
CA. No. SSC-JA—ll8, Poppiti, I. (5s'2f9l) (fair and
just to conclude disclosure inadvertent and privilege END OF DOCUMENT
not waived given the volume of production and use
of reasonable precautions to prevent disclosure).
*2 For the foregoing reasons, defendants motion is
DENXED.
IT IS SO ORDERED.
FNL Plaintiffs have produced the
document for the Court's in camera
inspection.
2007 Thomson/West. No Claim to Orig. U.S. Govt. Works.
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