Eplus Inc. v. Lawson Software, Inc.

280 F.R.D. 247, 2012 WL 560155, 2012 U.S. Dist. LEXIS 21636
CourtDistrict Court, E.D. Virginia
DecidedFebruary 21, 2012
DocketCivil Action No. 3:09cv620
StatusPublished
Cited by9 cases

This text of 280 F.R.D. 247 (Eplus Inc. v. Lawson Software, Inc.) is published on Counsel Stack Legal Research, covering District Court, E.D. Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Eplus Inc. v. Lawson Software, Inc., 280 F.R.D. 247, 2012 WL 560155, 2012 U.S. Dist. LEXIS 21636 (E.D. Va. 2012).

Opinion

MEMORANDUM OPINION

ROBERT E. PAYNE, Senior District Judge.

This matter is before the Court on the MOTION FOR ENTRY OF ORDER REQUIRING PRODUCTION OF DOCUMENTS AND INFORMATION AS TO WHICH THE ATTORNEY-CLIENT PRIVILEGE HAS BEEN WAIVED AND FOR EXPEDITED BRIEFING (Docket No. 869) filed by ePlus Inc. (“ePlus”). For the reasons below, the motion is granted in part and denied in part.

PROCEDURAL BACKGROUND

On May 23, 2011, the Court issued a permanent injunction, enjoining Lawson Software, Inc. (“Lawson”) and “any person in active concert or participation with them” “from directly or indirectly making, using, offering to sell, or selling within the United States or importing into the Unites States” certain product configurations and services. (Docket No. 729). On September 9, 2011, ePlus Inc. (“ePlus”) filed a Motion to Show Cause, alleging that Lawson was in violation of the injunction Order and seeking an order citing Lawson for contempt of Court. (Docket No. 798). The focus of ePlus’ contempt motion concerned an application of one of the infringing system configurations, Requisition Self-Service (“RSS”). Lawson redesigned RSS and created Requisition Center (“RQC”) in its stead. ePlus alleged that the new RQC product is not colorably different from RSS.

At the September 15, 2011 hearing, counsel for Lawson requested that it have until October 7, 2011 to “have the written discovery back.” Sept. 15, 2011 Tr. 8:18-20 (Docket No. 805). The parties then filed a Joint Stipulation setting out certain discovery deadlines and agreeing to the October 7 response deadline (Docket No. 816).

Lawson asked the Court for more time to complete its production of documents, claiming that many of the requested documents were privileged. As a result, the Court issued an Order on October 19, 2011, setting deadlines for a preliminary privilege log, outlining the requirements for the privilege log, and postponing Lawson’s production deadline to November 2, 2011. (Docket No. 825). Lawson produced a privilege log and a revised privilege log before November 2. It then requested that it have additional time to produce a third version of its privilege log. At a November 8 hearing, after reviewing the third privilege log, the Court expressed the view that the log did not appear to comply with the October 19 Order, and counsel for Lawson explained that there were some items in the privilege log that it had learned did not belong there. Nov. 8, 2011 Tr. 119:16-21; 122:15-19. The Court then ordered Lawson to file a revised privilege log, which Lawson did on November 21, 2011. Mem. Supp. Motion to Compel, Exhibit C.

Depositions began on December 19, 2011 and continued through January 9, 2012. On January 15, 2012, counsel for Lawson asked that it be able to “claw back” ten documents that it claimed had been produced inadvertently. Id., Exhibit T. It later agreed to [251]*251drop its request with respect to two of these documents. Id.

LEGAL STANDARD

The purpose of the attorney-client privilege is to “promote broader public interests in the observance of law and administration of justice ... [t]he privilege recognizes that sound legal advice or advocacy serves public ends and that such advice or advocacy depends upon the lawyer’s being fully informed by the client.” Upjohn v. United States, 449 U.S. 383, 389, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981). Thus, the application of the privilege laws serves an important purpose in our legal system, but that application can also “remove otherwise pertinent information from the fact finder, thereby impeding the full and free discovery of the truth.” Rambus, Inc. v. Infineon Techs. AG, 220 F.R.D. 264, 271 (E.D.Va.2004). Because of this adverse result, in the Fourth Circuit, work product and attorney-client privilege are construed “quite narrowly.” Id. They are recognized “only to the very limited extent that ... excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth.” Id. (quoting Hawkins v. Stables, 148 F.3d 379, 383 (4th Cir.1998)).

A party asserting a privilege has the burden of showing that it applies. Id. {citing United States v. Under Seal, 341 F.3d 331, 335 (4th Cir.2003)). Amongst other things, the party asserting attorney-client privilege must establish that:

(2) the person to whom the communication was made ... act[ed] as a lawyer [in connection with the communication] (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (e) for the purpose of securing primarily (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding ... (4) the privilege has been (a) claimed and (b) not waived by the client.

Hawkins v. Stables, 148 F.3d 379, 383 (4th Cir.1998). Whereas, the party asserting the work product doctrine must establish that the document at issue was prepared at the direction of an attorney in anticipation of litigation. Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947).

ISSUES PRESENTED

In its motion, ePlus requests that the Court find as follows:

(1) the eight documents produced by Lawson are not the proper objects of a “claw back” demanded on January 15, 2012, as a consequence of Lawson’s conscious decisions to produce them rather than inadvertence, or as a consequence of Lawson’s inconsistent assertions of the attorney-client privilege, or both;

(2) that hundreds of entries on Lawson’s Fourth Amended Privilege Log remain incomplete and unclear, and that all documents that are incompletely identified and referenced on the Fourth Amended Privilege Log be produced to ePlus forthwith;

(3) that the attorney-client privilege has been waived as to the subject matter of Lawson’s development of the RQC module, on the ground that the privilege has been inconsistently described and asserted in Lawson depositions;

(4) that the attorney-client privilege has been waived as to the subject matter of the development of the RQC module, on the ground that Lawson knowingly used attorney advice as an endorsement of the RQC module to its customers and the public, and as an assurance to customers that the RQC product renders certain configurations of its procurement software, found to be infringing by this Court, to be non-infringing; and

(5) that the documents previously clawed back, redacted and withheld from production under the claim of privilege be produced forthwith.

Each contention will be addressed in turn.

DISCUSSION

A. The Privilege Log

The Order entered on October 19, 2011 required:

(1) “[Lawson to] provide to [ePlus] a ‘Preliminary Privilege Log’ listing those docu[252]*252ments that are potentially privileged and identifying each document’s author and recipient.”

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Bluebook (online)
280 F.R.D. 247, 2012 WL 560155, 2012 U.S. Dist. LEXIS 21636, Counsel Stack Legal Research, https://law.counselstack.com/opinion/eplus-inc-v-lawson-software-inc-vaed-2012.