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Motion to Compel Due Diligence Report Denied In Light of Nondisclosure Agreement

By Michael C. Smith

WI-Lan, Inc. v. Acer, Inc. et al., 2:07cv473 (October 18, 2010)

Judge: T. John Ward

Holding: Motion to Compel DENIED

Defendants moved for the production of a report written by Dr. Peter Driessen and other documents disclosed to Broadcom?s attorneys during due diligence of a potential purchase of certain Wi-LAN intellectual property interests in late 2005 and early 2006.

Judge Ward found no waiver of the work product privilege where the plaintiff disclosed a report regarding potential litigation written by a non-attorney during due diligence, where the defendant had signed a nondisclosure agreement before reviewing any of the confidential information.  While not specifically holding that the disclosure was also protected by the "common interest" porivilege because such a finding was not necessary, the Court also observed that as the defendant had agreed that the disclosure did not waive that privilege, so it was estopped from claiming waiver, and principles of equity required the same estoppel apply to the similarly situated defendants.

from DocketNavigator.

Full post as published by Eastern District of Texas Federal Court Practice on October 20, 2010 (boomark / email).