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District Court Holds that Document Retention and Destruction Policies Are Privileged under Court’s Default Discovery Standard

In this patent infringement action, the plaintiff sought production of the defendant’s document retention and document destruction policies. The defendant asserted that the request sought information protected by work product and attorney-client privilege. The plaintiff argued that the documents were merely corporate policies that could not be privileged.

The district court analyzed the issue by reviewing the court’s Default Discovery Standards and concluded that these policies are protected under those standards.

The Default Discovery Standard reads: “Activities undertaken in compliance with the duty to preserve information are protected from disclosure and discovery under Fed. R. Civ. P. 26(b)(3)(A) and (B).” Default Discovery Standard at ΒΆ 1(d)(iii).

As a result of this language, the district court found that “document retention and destruction policies fit squarely within the meaning of the ‘duty to preserve information.’ Accordingly, such documents are privileged under the Default Discovery Standard.”

The district court therefore denied the motion to compel and ordered the parties to meet and confer regarding “the nature and scope of privilege logs for this case, including whether categories of information may be excluded from any logging requirements and whether alternatives to document-by-document logs can be exchanged.”

Novanta Corp. v. Iradion Laser, Inc., Case No. 15-1033-SLR-SRF (D. Del. Sept. 2016)

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