By Eric Schweibenz
On January 19, 2012, ALJ Thomas B. Pender issued Order No. 20 in Certain Wireless Communication Devices and Systems, Components Thereof, and Products Containing Same (337-TA-775) denying Respondents Apple, Inc., Hewlett-Packard Company, Aruba Networks, Inc., Meru Networks, and Ruckus Wireless’s (collectively, “Respondents”) motion to compel the production of documents improperly withheld by Complainant Linex Technologies, Inc. (“Linex”) on the basis of privilege.

By way of background, the investigation is based on a complaint filed by Linex on May 6, 2011 alleging violation of Section 337 in the importation into the U.S. and sale of certain products and components that infringe U.S. Patent Nos. 6,757,322 and RE42,219.  See our May 10, 2011 post for more details.

According to the Order, Respondents contended that after repeated and unexplained delays, Linex produced a privilege log with document descriptions insufficient to maintain a claim of privilege, and that when questioned on such entries, Linex provided a revised log that altered document authors from non-lawyers to lawyers and added lawyers as document recipients for some of the entries at issue.  Respondents argued that Linex’s alterations to entries in its revised privilege log, as well as numerous entries that still do not provide a sufficient description to maintain a claim of privilege, raised serious concerns about the integrity of Linex’s privilege claims.  Linex opposed the motion, arguing that its revised log provided ample support for Linex’s privilege claims.  The Commission Investigate Staff supported the motion in part.

ALJ Pender agreed with Respondents, finding that Linex’s privilege log did not comply with the requirements of Ground Rule 4.10.1 and did not provide the level of detail necessary to substantiate its claims of privilege.  Specifically, the ALJ found that Linex’s revised privilege log (1) failed to include a date for each withheld document, (2) included miscellaneous “Custodian” information that masked the required identification of the author(s)/sender(s) of each document, (3) included miscellaneous “Mentions” information that masked the required identification of the copy recipient(s) of each document, (4) repeatedly and improperly identified an entity rather than a person as the author/sender/recipient, (5) failed to identify the sender/recipient by position and entity with which they are employed or associated, (6) failed to specifically identify any author/sender/recipient as an attorney or foreign patent agent, and (7) failed to provide a certification that all elements of the claimed privilege have been met and not waived with respect to each document.  ALJ Pender also found that Linex’s generic document descriptions (e.g., “confidential document created for the purposes of seeking and/or providing legal advice for litigation”) did not provide the detail necessary to assess Linex’s privilege claims.

While Respondents sought a finding that Linex waived its privilege claims, ALJ Pender instead ordered Linex to produce a privilege log that complies with Ground Rule 4.10.1, and to produce any documents on its log for which Linex cannot substantiate its claim of privilege.