Minebea Co. v. Papst

228 F.R.D. 13, 2005 U.S. Dist. LEXIS 7562, 2005 WL 1076705
CourtDistrict Court, District of Columbia
DecidedApril 29, 2005
DocketNo. CIV.A. 97-0590(PLF)
StatusPublished
Cited by20 cases

This text of 228 F.R.D. 13 (Minebea Co. v. Papst) is published on Counsel Stack Legal Research, covering District Court, District of Columbia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Minebea Co. v. Papst, 228 F.R.D. 13, 2005 U.S. Dist. LEXIS 7562, 2005 WL 1076705 (D.D.C. 2005).

Opinion

OPINION

PAUL L. FRIEDMAN, District Judge.

This matter is before the Court on Minebea’s remaining objections to the Special Master’s Report and Recommendation No. 6 (“R & R 6”). The Court has reviewed R & R 6, Minebea’s objections, Papst’s opposition and Minebea’s reply, and has concluded that the majority of the Special Master’s rulings should be upheld. This Opinion addresses Minebea’s objections to the Special Master’s conclusions with respect to (a) the joint defense privilege, (b) Seagate documents, (c) Ringi documents, (d) incomplete translations, and (e) other documents described in the Naka declaration.1

A. Joint Defense Privilege

The Special Master ruled that communications between Minebea and third parties could be protected under the “joint defense” privilege only if they occurred after Minebea and the third party in question entered into a “relevant arrangement.” See R & R 6 at 78. The Special Master found that the first joint defense agreement was entered into with Fujitsu, Samsung, NEC and Hitachi on January 22, 1998, and with others on later specified dates. He therefore concluded that Minebea must produce:

any document as to which Minebea asserts joint defense privilege or joint defense work product protection, and relating to or embodying (a) any alleged “joint defense” communication before January 22, 1998, (b) any such communication with Seagate before February 6, 1998, with IBM, Toshiba or Maxtor before March 3,1998, or with Western Digital before March 10, 1998, and (c) any such communication with any entity other than Fujitsu, Samsung, NEC, Hitachi and those named in (b), regardless of date.

R & R 6 at 78-79.

“The joint defense privilege, often referred to as the common interest rule, is an extension of the attorney-client privilege that protects from forced disclosure communications between two or more parties and/or their respective counsel if they are participating in a joint defense agreement.” United States v. Hsia, 81 F.Supp.2d 7, 16 (D.D.C. 2000). It protects communications between the parties where they are “part of an ongoing and joint effort to set up a common defense strategy” in connection with actual or prospective litigation. In re Bevill, Bresler & Schulman Asset Management, 805 F.2d 120, 126 (3d Cir.1986); see also In re Grand Jury Subpoena, 274 F.3d 563, 575 (1st Cir.2001).2 “It permits a client to disclose information to [its] attorney in the presence of joint parties and their counsel without waiving the attorney-client privilege and is intended to preclude joint parties and their attorneys from disclosing confidential information learned as a consequence of the joint [16]*16defense without permission.” United States v. Hsia, 81 F.Supp.2d at 16. “[T]he rule applies not only to communications subject to the attorney-client privilege, but also to communications protected by the work-product doctrine.” In re Grand Jury Subpoenas, 902 F.2d 244, 249 (4th Cir.1990); see also Lugosch v. Congel, 219 F.R.D. 220, 240 (N.D.N.Y.2003) (“The exchange of work product among attorneys with identical litigation perspectives should not render such tangible information vulnerable to pretrial discovery.”)

“[T]he joint defense or common interest rule presupposes the existence of an otherwise valid privilege.” In re Grand Jury Subpoenas, 902 F.2d at 249. All attorney-client communications or work product therefore must first satisfy the traditional requisites for the attorney-client or work product privilege before they become or remain privileged. Once these requirements are satisfied, shared or jointly created material must pass an additional test: It must be disclosed pursuant to a common legal interest and pursuant to an agreement to pursue a joint defense. Cf. Gregory J. Kopta, Applying the Attorney-Client and Work Product Privileges to Allied Party Exchange of Information in California, 36 U.C.L.A. L. REV. 151, 197 (1988). It is also established that the party asserting the attorney-client or work product privilege always bears the burden of demonstrating that the communications/documents sought to be shielded are, in fact, privileged. See, FED. R. CIV. P. 26(b)(5); In re Lindsey, 158 F.3d 1263, 1270 (D.C.Cir.1998). The same is true in the context of the joint defense privilege. See In re Bevill, Bresler & Schulman Asset Management, 805 F.2d at 126.

“In order to establish the existence of a joint defense privilege, the party asserting the privilege must show that (1) the communications were made in the course of a joint defense effort, (2) the statements were designed to further the effort, and (3) the privilege has not been waived.” In re Bevill, Bresler & Schulman Asset Management, 805 F.2d 120 at 126. It is incumbent on a party claiming the joint defense privilege, therefore, to establish that “the parties had agreed to pursue a joint defense strategy.” Id. “Some form of joint strategy is necessary to establish a [joint defense agreement] rather than merely the impression of one side.” United States v. Weissman, 195 F.3d 96, 100 (2d Cir.1999). Obviously, a written agreement is the most effective method of establishing the existence of a joint defense agreement, although an oral agreement whose existence, terms and scope are proved by the party asserting it, may be enforceable as well. See United States v. Hsia, 81 F.Supp.2d at 17. As Professor Saltzburg has suggested:

The parties need not agree in writing to pursue a common interest; the doctrine permits an exchange of confidential information when the parties have clearly and specifically agreed in some manner to pool information for a common goal. Nonetheless, it is certainly prudent practice to execute a written agreement before significant communications are exchanged. This would eliminate any doubt about whether the parties to the discussion were pursuing a common goal with respect to the matters communicated. Without a written agreement, the party’s burden of proving that a statement was made in the common interest will undoubtedly be more difficult.

2 Stephen A. Saltzburg, Et Al., Federal Rules Of Evidence Manual at 501-35-36 (8th ed.2002).

If a joint defense agreement has been proved to exist and the scope of the agreement is clear, the party seeking to claim privilege still must demonstrate that the specific communications at issue were designed to facilitate a common legal interest; a business or commercial interest will not suffice. See, e.g., Bank Brussels Lambert v. Credit Lyonnais (Suisse) S.A., 160 F.R.D. 437, 447 (S.D.N.Y.1995). “The privilege arises out of the need for a common [legal] defense, as opposed merely to a common problem.” Medcom Holding Company v. Baxter Travenol Laboratories, 689 F.Supp. 841, 844 (N.D.Ill.1988). The joint defense privilege thus requires evidence of a “coordinated legal strategy” between two or more parties. Shamis v. Ambassador Factors Corporation, 34 F.Supp.2d 879, 893 (S.D.N.Y.1999).

[17]

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Bluebook (online)
228 F.R.D. 13, 2005 U.S. Dist. LEXIS 7562, 2005 WL 1076705, Counsel Stack Legal Research, https://law.counselstack.com/opinion/minebea-co-v-papst-dcd-2005.