District Court Grants Motion to Compel Internal Counsel Communications of Plaintiff That Did Not Pertain to Litigation

October 27, 2014

Dell moved to compel the production of certain internal counsel communications at the plaintiff, MLR. MLR had refused to produce the documents, claiming work product protection.

As explained by the district court, "[i]n the circumstances presented here, which are the result of MLR's choices, the established policies underlying the work product doctrine require that the phrase 'in anticipation of litigation' in Fed. R. Civ. P. 26(b)(3)(A) be limited, with respect to non-opinion material, to material generated solely with respect to MLR's relationship with a particular potential licensee/defendant beginning at the time that potential licensee/defendant is identified. Other or more general relationship to litigation will render the material presumptively business-related and not protected."

The district court then distinguished between opinion work related solely to legal issues to that related to financial issues. "Opinion work product that relates solely to legal issues as distinguished from financial issues is protected even if it does not relate solely to a particular licensee/defendant. Other opinion work product is presumptively business-related and not protected."

As a result, the district court order the internal communications produced. "In the circumstances presented here, internal communications to and from internal counsel are presumptively business communications not protected by the attorney-client privilege unless they relate solely to MLR's relationship with a specific potential licensee/defendant at or after the time that potential licensee/defendant is identified."

MLR, LLC v. Dell Inc., Case No. 1:14cv135 (E.D. Va. Oct. 17, 2014)

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