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Calling the “Hotline”: Witness Ordered to Answer “Who” and “When” Deposition Questions Regarding Litigation Hold Memorandum

On November 17, 2015, during a deposition of a fact witness, counsel for the plaintiff, Ericsson Inc. (“Ericsson”), attempted to question the witness regarding a litigation hold memorandum (the “memo”). Counsel for the plaintiff stated that she inquired as to the existence of such a memo, the date received, if any, and the recipients of the memo, if any.

Plaintiff’s counsel explained to the court that the witness was directed by counsel not to answer the questions on the basis of attorney-client privilege. The court was further advised that the information was relevant because there are allegations of potential spoliation in this case.

In response, counsel for the defendants, TCL Communication Technology Holdings, LTD. (“TCL”), asserted that the questions asked went beyond the scope of the existence of the memo, the date received, and the recipients of such memo, and instead required the witness to speculate on the conduct of other individuals. TCL’s counsel also asserted that he instructed the witness not to answer questions if they encroached on matters that would be protected by attorney-client privilege, such as conversations the witness may have had with TCL’s general counsel.

After considering the arguments from Ericsson and TCL, the court concluded that Ericsson’s counsel “was entitled to ask and obtain answers – to the extent the witness had personal knowledge – regarding: (1) the existence of a litigation hold memo, if any; (2) the date it was issued; and (3) the recipients of such memo.” However, the Court also advised the “Parties as to any questions beyond those, that an objection to privileged information is a proper objection for a deposition, and if the objection is made improperly, there are other remedies for improperly objecting to such information on the basis of privilege.”

The court then “instructed the Parties to make their record, and any objection to a privilege asserted to such questions could be addressed following the deposition. The Court further instructed the Parties to contact the Hotline if any additional issues arose during the deposition.”

Ericsson Inc. v. TCL Communication Technology Holdings, LTD., Case No. 2:15-CV-11-RSP (E.D. Tex. Nov. 17, 2015)

The authors of are patent trial lawyers at Jeffer Mangels Butler & Mitchell LLP. For more information about this case, contact Stan Gibson at 310.201.3548 or