By Eric Schweibenz
On March 5, 2013, ALJ David P. Shaw issued the public version of Order No. 30 (dated February 14, 2013) in Certain Products Containing Interactive Program Guide And Parental Control Technology (Inv. No. 337-TA-845).

According to the Order, Respondents Netflix, Inc. and Roku, Inc. (collectively, “Netflix”) filed a motion seeking an order compelling Complainants Rovi Corporation; Rovi Guides, Inc.; Rovi Technologies Corporation; Starsight Telecast, Inc.; United Video Properties, Inc.; and Index Systems, Inc. (collectively, “Rovi”) to produce documents improperly withheld based on claims of privilege.  At issue are more than 100,000 documents involving two of Rovi’s in-house attorneys.  Netflix argued that Rovi’s assertions that the documents are privileged were facially improper.  Specifically, Netflix objected to Rovi’s assertions that the documents are privileged because they involve in-house attorneys roles relating solely to licensing negotiations and strategy.

In opposition, Rovi argued that it properly withheld the documents and identified them on a comprehensive privilege log.  Further, Rovi asserted that it devoted substantial resources to ensure that only privileged and/or work-product documents were withheld and logged.

ALJ Shaw held that the documents at issue were properly withheld.  ALJ Shaw noted that Rovi expended considerable resources in reviewing and analyzing the documents at issue.  Specifically, ALJ Shaw stated that Rovi reviewed all the documents for privilege and did not rely solely on a computer filtering program.  Further, ALJ Shaw held that Rovi properly instructed the reviewing attorneys that both in-house attorneys “at times worked in a business capacity, as opposed to in a legal capacity, despite being in-house attorneys at Rovi.”  Accordingly, ALJ Shaw denied Netflix’s motion.