On May 21, 2010, ALJ Robert K. Rogers, Jr. issued Order No. 19 in Certain Silicon Microphone Packages and Products Containing the Same (337-TA-695).  In the Order, ALJ Rogers denied Complainant Knowles Electronics LLC’s (“Knowles”) motion to compel the production of two categories of documents against Respondent Analog Devices, Inc. (“Analog”).

According to the Order, Knowles requested Analog to produce unredacted versions of notebook pages from an Analog employee, where the notebook had been redacted due to relevance.  Knowles also requested “leave to file a motion for adverse inferences as necessary based on the redacted information in the notebooks.”  Analog reportedly admitted redacting the notebook pages for relevance, arguing that its employee worked on packaging of MEMS products beyond just the accused MEMS microphones, and that such additional products are not relevant or reasonably calculated to lead to the discovery of admissible evidence.  Analog additionally asserted that Knowles did not follow ALJ Rogers’ Ground Rules by “never engag[ing] in intensive good faith efforts to resolve the present dispute at least two business days prior to filing its motion,” and never raising the redacted notebook issue at a Discovery Committee meeting.  ALJ Rogers denied Knowles’ motion to compel the unredacted notebook pages due to Knowles’ failure to follow Ground Rule 4.1.1, which states: “[n]o motion to compel discovery may be filed unless the subject matter of the motion has first been brought to the Discovery Committee and the Committee has reached an impasse in resolving the matter.”  Although he did not reach the substance of this issue, ALJ Rogers stated in a footnote that “redacting documents based on relevance is improper,” citing Certain Semiconductor Integrated Circuits & Products Containing Same, Inv. No. 337-TA-665, Order No. 41 (May 12, 2009).

Knowles also moved to compel production of several documents on Analog’s privilege log, where entries did not reflect the presence of an attorney’s name.  ALJ Rogers rejected Knowles’ “blanket argument that all communications that fail to identify an attorney as the sender or recipient cannot be protected by the attorney-client privilege.”  ALJ Rogers determined that “a communication may be subject to the attorney-client privilege even if the communication is between only non-attorneys,” citing, Heriot v. Byrne, 257 F.R.D. 645, 665 (N.D. Ill. 2009) ("The attorney-client privilege can extend to communications between nonlawyer employees of a company.") and Williams v. Sprint/United Mgm 't Co., 238 F.R.D. 633, 639 (D. Kan. 2006) ("[C]ommunications between non-attorneys could nonetheless be privileged so long as the communications were made in confidence for the purpose of obtaining legal advice from counsel.")  In denying the motion, ALJ Rogers also determined that “Knowles fails to identify detailed deficiencies in specific privilege log entries,” and “[s]uch vague objections are not sufficient to prevail on the motion to compel.”