Patent Lawyer Blog
A recent discovery dispute in the ongoing Boston Dynamics v. Ghost Robotics litigation provides an interesting look at how courts analyze attorney-client privilege in the context of legal memos shared with third parties. In an October 2024 order, Magistrate Judge Burke denied Boston Dynamics’ motion to compel additional discovery related to two legal memos that Ghost Robotics’ attorneys had prepared and shared with third parties.
The key issue was whether Ghost Robotics waived attorney-client privilege by sharing these memos. As the court explained, “The attorney-client privilege protects confidential communications between a client and an attorney relating to the purpose of securing legal advice.” However, this protection isn’t absolute – “If a client voluntarily discloses privileged communications to a third party, the privilege is waived.”
Boston Dynamics argued that the memos contained privileged communications, but Ghost Robotics maintained that “the content of the memos was never protected by the attorney-client privilege, in part because the memos were created with the intent that they were to be immediately disclosed to third parties.”
Judge Burke’s analysis focused on a critical distinction: The court found that “the substance of the memos seems not all that different from the content of a letter or an e-mail that a party’s attorney might send to opposing counsel in a case like this, or of a statement that an attorney might make in a press release or a court filing.” While Ghost Robotics’ attorneys likely had confidential discussions about these issues, the memos themselves didn’t reveal privileged communications.
Particularly persuasive was the declaration from Ghost Robotics’ attorney that he “drafted both [memos] with the understanding that third parties would have access to the letters.” As the court noted, there were no typical indicators of privilege, such as “an ‘attorney-client privileged communication’ stamp, or a notation that a client representative is listed on the ‘To’ line of the memos.”
The court’s ruling emphasizes that mere discussion of legal issues doesn’t automatically create privilege. As Judge Burke explained, when an attorney makes statements to third parties, “one might guess that the attorney has previously had a conversation his client about that same general subject matter. But this type of third-party disclosure itself does not make clear or specific reference to the substance of any such prior confidential communication.”
This decision offers important guidance for practitioners on the distinction between privileged communications and general legal positions shared with third parties. The court’s thorough analysis provides a framework for evaluating when attorney communications will – and won’t – be protected by privilege.
Boston Dynamics, Inc. v. Ghost Robotics Corp., Case No. 22-1483-MN, 2024 (D. Del. Oct. 3, 2024).