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- ilnd;;1:08-cv-03379_de413 RegisterActionDate "2011-06-01" @default.
- ilnd;;1:08-cv-03379_de413 RegisterActionDescriptionText "MINUTE entry before Honorable Jeffrey Cole: Status hearing held and continued to June 30, 2011 at 9:30 a.m. Today, I conducted an extensive discussion with counsel regarding a discovery issue that they have not been able to resolve, but which each side considers significant. It appears that Fujitsu has conducted some sort of reverse engineering on Tellabs' equipment that it purchased on eBay. Tellabs has sought discovery relating to the results of those endeavors. Fujitsu has resisted, claiming attorney/client privilege and work-product protection even for the results and observations of those endeavors. The reverse engineering was apparently undertaken by engineers who are employed by Fujitsu and by an outside Ph.D. The protections afforded by Rule 26(b)(4)(B), now 26(b)(4)(D), were not raised in the written objections filed by Fujitsu, although they were discussed at today's hearing. It was Tellabs' position that Fujitsu has injected the issue of reverse engineering into the case and thereby had waived any protection that otherwise even arguably, might have covered the results of the reverse engineering. Fujitsu disagreed, contending that it had not done so, but conceding that it if had put at issue the reverse engineering, the waiver doctrine would be properly invoked. This is the familiar waiver by implication doctrine. See e.g., Willy v. Administrative Review Bd., 423 F.3d 483, 497 (5th Cir. 2005); Flowers v. Owens, _F.R.D._, 2011 WL 1547142, 5 (N.D.Ill. 2011); United Auto Insurance Co. v. Veluchamy, 747 F.Supp.2d 1021, 1029 (N.D.Ill. 2010) At an earlier hearing when these issues were discussed, I inquired why the results of the reverse engineering should be deemed protected, since, under Hickman v. Taylor, facts are not within the work-product protection, and the attorney/client privilege as consistently enunciated for more than a century protects confidential "communications" from a client to its lawyer seeking legal advice. At my request, the parties provided me informally with cases that they believe supported their respective positions. Tellabs ultimately took the position that it wanted until June 30th to decide whether it would be relying on the reverse engineering results at trial. If it chose not to do so, then, it contended, discovery would be on a matter that was not relevant. Fujitsu disputed that contention. Viewed solely from the vantage point of Fujitsu's affirmative case, the argument had at least arguable merit. Nothing would prohibit Fujitsu from withdrawing from consideration a component of its proof or an issue that would thereby render discovery on that issue irrelevant. See the discussion in Kronenberg v. Baker & McKenzie LLP, 747 F.Supp.2d 983 (N.D.Ill. 2010). However, Fujitsu raised the possibility that it might not use the reverse engineering that had already been completed, but it might use a new outside expert to conduct further reverse engineering tests for use at trial. Of course, it is free to do so. But that may then leave in play the issue that might otherwise be mooted if the reverse engineering issue plays no role in Fujitsu's case, and if Tellabs cannot make a case for independent relevance in connection with any claim or defense it has. None of these are questions that need be answered now or that indeed are appropriate to even suggest the answer to. June 30th will be here soon enough. If, however, that day comes and there has not been a definitive answer with regard to Fujitsu's plans, Tellabs will be free to file whatever formal motion it deems appropriate. Of course, Fujitsu will have ample time to respond. Finally, I declined to review in camera an affidavit appeared by Mr. Wong, one of Fujitsu's counsel that purported to justify the claim of attorney/client privilege advanced in the objections to certain of Tellabs' discovery requests since I expressed concern about utilizing attorney/client protected statements which I was told were contained in Mr. Wong's affidavit in order to make the case for the attorney/client privilege covering whatever Tellabs engineers and outside Ph.D did in connection with their reverse engineering undertakings. Mailed notice (gmr, ) (Entered: 06/03/2011)" @default.
- ilnd;;1:08-cv-03379_de413 AdministrativeID "412" @default.