DocketNumber: C.A. No. 07-127-LPS-MPT
Citation Numbers: 886 F. Supp. 2d 466
Judges: Thynge
Filed Date: 8/22/2012
Status: Precedential
Modified Date: 11/26/2022
MEMORANDUM ORDER
I. INTRODUCTION
On March 1, 2007, plaintiffs Safety Breaking Corporation (“SBC”), Magnetar Technologies Corporation (“Magnetar”)
In 2006, Magnetar and G & T licensed the '125 patent to Acacia Research Group LLC (“Acacia”).
After the case was filed, Geoffrey Zelley (“Zelley”), an attorney with Connolly Bove went to Texas to investigate a BAE facility in Carrolton, referred to as the Luna Road facility (“Luna Road”).
Six Flags contends the Zelley memorandum evidences Magnetar and G & T’s knowledge of the invalidity of the '125 patent, a fact which they actively concealed from Six Flags.
In February 2008, Acacia withdrew from this case and Connolly Bove withdrew as counsel
On December 23, 2011, Intamin served a third-party subpoena on Acacia seeking all documents relating to the '125 patent.
The parties dispute whether Acacia diligently sought return of the documents after producing them to Intamin. Six Flags maintains Acacia waited two months before requesting the documents be returned; Magnetar and G & T note Acacia demanded their return on March 21, 2012.
According to Connolly Bove, they first learned of the Acacia production when Zelley was served with a subpoena on March 13, 2012.
On March 14, 2012, Magnetar and G & T sent a letter asserting attorney-client privilege applied to the Zelley memorandum in the Acacia production.
On April 18, 2012, this court addressed issues of attorney-client privilege and work product protection with respect to the Zelley memorandum and the proposed Zelley deposition.
On June 26, 2012, G & T, as a third-party, was granted its motion to compel the return of twelve privileged documents, including the Zelley memorandum, in the District Court for the Central District of California.
The ruling of the California district court is not controlling for the additional documents identified by Magnetar, G & T and Connolly Bove as subject to the attorney-client privilege and work product protection.
II. PARTIES’POSITIONS
A. Defendants (Six Flags etc.)
Six Flags argues Acacia waived the attorney-client privilege and any work product protection. Six Flags alleges Acacia must demonstrate the production was inadvertent and reasonable care was taken to protect it privileges in order to maintain the attorney-client privilege. According to Six Flags, Acacia clearly waived because the production was deliberate and not inadvertent. Additionally, since Acacia never reasonably sought to recover the produced documents, waiver of the attorney-client privilege occurred. Finally, work product protection was waived because production by Acacia was made to an opposing party in litigation, Intamin.
Waiver by Acacia aside, Six Flags argues Magnetar and G & T never had any protection in the communications. Six Flags disputes Magnetar and G & T’s claims that there is a joint client privilege. Rather, the communications were between Acacia and Connolly, Bove, and did not involve Magnetar and G & T. Additionally, Six Flags disputes the application of the joint client privilege to a single client and its attorney. Finally, even if there was a joint client relationship, Six Flags maintains it disappeared when Acacia’s relationship with Magnetar and G & T became adversarial.
Six Flags further contends Connolly Bove has no standing to oppose the pro
Six Flags also argues the communications at issue are factual in nature and should be produced because they are not shielded by the attorney-client privilege. Finally, Six Flags urges the court to reject the attorney-client privilege and work product protection claims because they are related to Magnetar and G & T’s fraud. Six Flags points to their misleading interrogatory responses, false testimony, fraudulent inducements to settle, spoliation of evidence and failure to produce documents as ongoing fraud. Six Flags argues spoliation of evidence allows the crime-fraud exception to apply and compel the production of the documents, removing an purported protection under the attorney-client privilege or work product doctrine.
B. Connolly Bove
Connolly Bove limited its response to its work product protection claims, but does not intend its silence on the other allegations raised by Six Flags to operate as an agreement with plaintiffs’ position. Connolly Bove rejects Six Flags’ argument that Acacia’s production operates as a waiver. Connolly Bove maintains if Acacia waived its attorney-client privilege, it is without impact on Connolly Bove’s work product protection.
Connolly Bove also disagrees with Six Flags’ characterization of Acacia’s production of documents as production to an adversary and outside the work product protection. Connolly Bove argues work product protection belongs to an attorney and can only be waived by the attorney, unlike the attorney-client privilege. Although Connolly Bove acknowledges that factual disputes are not protected by the attorney-client or work product privileges, it questions what facts Six Flags is seeking to discover. Connolly Bove speculates Six Flags’ claim that facts are being withheld is disingenuous and could be resolved by the parties through their meet and confer obligations. Additionally, Connolly Bove argues against the application of the crime-fraud exception. Instead, Connolly Bove maintains Six Flags has not established a prima facie case of fraud or shown the communications were made in furtherance of fraud. Connolly Bove notes Six Flags only demonstrates a generalized allegation of fraud, which is insufficient for the crime-fraud exception to apply.
Connolly Bove further disputes Six Flags’ argument it does not have standing to challenge the production of documents because the work product protection is only invoked by the attorney, and waiver of the attorney-client privilege by the client does not necessarily waive an attorney’s work product protection.
C. Plaintiffs (Magnetar and G & T)
Magnetar and G & T dispute there was spoliation justifying the piercing of the attorney-client privilege. Magnetar and G & T allege documents were not intentionally destroyed by G & T, but were under BAE’s control. They point to a series of documents produced to defendants to negate the claim Magnetar and G & T attempted to hide relevant information. Finally, Magnetar and G & T argue against defendants’ conclusion the '125 patent was invalid, noting this issue is hotly disputed and no effort was made to conceal docu
Magnetar and G & T also maintain there was a joint client privilege which was not waived. To demonstrate joint representation, Magnetar and G & T argue they both retained Connolly Bove and Acacia was only a licensee, not an owner of Magnetar and G & T’s intellectual property. In addition, both Magnetar and G & T were parties to the Universal settlement, and the contested documents include Magnetar and G & T and reference G & T and their counsel. Magnetar and G & T allege the joint relationship continued until at least October 31, 2007, when Connolly Bove identified a conflict. Even after this date, obligations remained because the parties agreed not to disparage each other or interfere with their respective contracts and relationships. Magnetar and G & T also dispute a waiver of privilege due to any purported delay in requesting return of the documents. Instead, Magnetar and G & T allege Six Flags ignored the Protective Order and the Delaware Rules of Professional Conduct and did not notify Acacia, the sender, of the transfer of privileged documents.
Magnetar and G & T also argue any waiver by Acacia is irrelevant. Magnetar and G & T insist Acacia cannot waive the joint privilege for them. The disputed communications involved Acacia, Magnetar and G & T, preventing Acacia from unilaterally waiving privilege for all three parties. Magnetar and G & T also dispute Acacia waived by not seeking the return of the inadvertently produced documents. According to Magnetar and G & T, Acacia asked the Zelley memo be returned and Magnetar and G & T, upon learning of the production, were diligent in demanding the return of the documents, thereby refuting any waiver.
Finally, Magnetar and G & T argue against applying the crime-fraud exception to the attorney-client privilege in these circumstances. Magnetar and G & T dispute Six Flags has alleged a prima facie case of fraud, one of the elements of the crime fraud exception. Magnetar and G & T also maintain the '125 patent is not invalid, and argue Six Flags cannot demonstrate the disputed communications were made in furtherance of fraud.
Additionally, Magnetar and G & T adopt by reference Connolly Bove’s arguments.
III. STANDARDS AND APPLICABLE LAW
A. Waiver
The attorney-client privilege protects communications between attorneys and clients from compelled disclosure.
1. Attorney-Client Privilege
The attorney-client privilege exists to encourage full and frank communications between counsel and their clients.
Disclosing otherwise privileged communications to third parties waives attorney-client privilege, unless, the voluntary disclosure is necessary to assist the client in obtaining legal advice.
2. Work Product
The purpose of the work product doctrine differs from the attorney-client privilege.
The rules governing attorney-client privilege have evolved to cover the representation of two or more people by a single lawyer, a joint representation. In a joint representation, the joint privilege applies when multiple clients hire the same counsel to represent them on a matter of common interest.
The joint client relationship begins when the “co-clients convey their desire for representation, and the lawyer accepts.”
C. Standing
The attorney-client privilege belongs to the client and can only be asserted by the client.
The ability of a client to invoke the work product protection, however, does not mean work product material can be produced on the client’s waiver alone.
D. Spoliation
Spoliation refers to the destruction or material alteration of evidence or the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.
Where a party neglects the duty to ¡preserve evidence, or actively obstructs it, a court has the authority to impose sanctions.
Courts may also dismiss claims or grant judgments, suppress countervailing evidence, or impose fines and attorneys’ fees as sanctions for spoliation.
Additionally, there has been a growing trend among courts to find the attorney-client privilege is lost when spoliation has-occurred.
Finally, courts can reserve judgment on whether to issue sanctions.
E. Crime-Fraud Exception
Communications between an attorney and a client, otherwise privileged, are not protected by the attorney-client privilege or work product doctrine if they are made in furtherance of a crime or fraud.
To establish a prima facie case of fraud, there must be more than allegations of inequitable fraud.
IV. DISCUSSION
A. Waiver and Joint Privilege
Magnetar and G & T, as well as Connolly Bove, maintain the documents at issue are subject to the work product protection. Six Flags insists Acacia’s production of documents operates as a waiver of Magnetar, G & T, and Connolly Bove’s attorney-client privilege and work product protection. First, whether Acacia’s production is a waiver of the attorney-client privilege depends on whether the production was inadvertent, which is hotly contested. Second, although production of documents can serve as a waiver of work product protection, finding the production was inadvertent will undercut the existence of a waiver. Finally, where there is a joint client relationship, a joint privilege exists, and a waiver of a joint privilege can only occur with the consent of all the parties of the joint representation.
1. Waiver of Attorney-Client Privilege
Six Flags primarily argues there was a waiver of the work product privilege, but also contends Acacia’s production waived the attorney-client privilege and work product protection for all disputed documents in the litigation.
When a party discloses privileged communications to a third-party, it waives the attorney-client privilege.
2. Work Product Waiver
Six Flags contends Acacia’s production operates as waiver of Connolly Bove, Magnetar and G & T’s work product protection.
The existence of a joint privilege from a joint client relationship among Magnetar, G & T and Acacia, would prevent Acacia’s production from serving as a waiver of work product protection or the attorney-client privilege for Magnetar and G & T. Six Flags insists there was no joint client relationship among Magnetar, G & T and Acacia and argues many of the disputed documents are solely between Connolly Bove and Acacia and do not include Magnetar and G & T. Despite Six Flags assertions to the contrary, the Agreement between Acacia, Magnetar and G & T requires the parties to cooperate in litigation.
Six Flags argues even if a joint client relationship existed among Acacia, Magnetar and G & T, it terminated and the disputed communications occurred after the termination and are not subject to the joint privilege.
In re Teleglobe Communications Corporation v. BCE Inc. held a waiver of joint privilege required the consent of all clients.
Further, as noted in Teleglobe, because the documents at issue name Magnetar and G & T, or include their counsel, Acacia could not unilaterally waive the privilege for them by producing documents. Since joint privilege existed at the time the disputed documents were created, it was not waived by Acacia through the production of documents.
B. Standing
The issue of standing is directly related to the previous discussion herein regarding waiver of the work product protection. Connolly Bove maintains it has standing to assert its own work product protection because that right is an attorney’s privilege.
To assess whether a client waived work product protection through the production of documents, a court considers the steps taken by a party to remedy the disclosure, any delay in seeking a remedy, and whether the party asserting the protection pursued reasonable means to restore the confidentiality of the materials and to prevent further disclosures.
Connolly Bove has standing to assert its work product protection. Once it became aware of the production, Connolly Bove repeatedly demanded return of the documents based on the work product protection. The evidence shows when Connolly Bove became aware of Acacia’s production, it immediately requested the return of the work product documents.
Finally, holding a client could waive work product protection for an attorney, whether the production by the client was inadvertent or intentional, while such production was unknown to counsel would undercut the purpose of the work product protection. In the instant matter, when Connolly Bove provided the documents in question, it was during or related to its joint representation of Acacia, Magnetar and G & T. Providing information that falls within the attorney work product protection to a client while representing that client is not a circumstance evidencing a conscious disregard that an adversary might possibly obtain such protected materials. To find otherwise would prevent any communication between counsel and a client containing the thought processes or analyses of the attorney, and would effectively eliminate the conveyance of any advice while the attorney-client relationship exists.
Finally, Six Flags criticizes Connolly Bove’s absence from the California proceedings as somehow operating as waiver or lack of standing regarding the attorney work product protection. In light of the piecemeal approach defendants, as well as a companion entity, Intamin, have taken in this court and in the California court regarding the various privilege issues, the court finds this argument unpersuasive.
C. Crime-Fraud Exception
Application of the crime-fraud exception to the attorney-client privilege requires: (1) a prima facie case of criminal or fraudulent conduct, and (2) that the communications were made in furtherance of the crime or fraud.
The crime-fraud exception is also limited to circumstances where the client seeks legal assistance to plan or perpetrate a crime or fraud.
D. Spoliation
Six Flags alleges Magnetar and G & T failed to disclose their knowledge of the invalidity of the '125 patent, did not cooperate in discovery, gave misleading interrogatory answers and fraudulently induced a settlement.
Where there is spoliation, a court has the authority to impose sanctions.
Entering a judgment or dismissal are harsh sanctions which require clear and convincing evidence of bad faith spoliation and prejudice to the opposing party. Magnetar and G & T insist since the loss of documents was part of routine destruction policy, any spoliation was not in bad faith, nor intended to impair Six Flags’ defense. However, the sizable amount of documents involved demonstrates a clear failure by plaintiffs to satisfy their preservation obligation. These documents could have aided Six Flags’ on the issue of invalidity of the '125 patent. Although the absence of evidence of bad faith spoliation does not warrant dismissal or entering an unfavorable judgment, the lack of reasonable preservation measures and prejudice weighs in favor of a lesser sanction.
Another sanction for spoliation is for the court to apply an inference.
Under the spoliation and the appropriate sanction analysis, the court may sanction a party where that party neglected its duty to preserve evidence. There is no requirement for sanction that the party actively concealed, destroyed or withheld evidence-neglect is sufficient. In order to apply the inference sanction, however, there must be withholding of documents within the party’s control. Here, the documents were clearly under the control of G & T at the time of their destruction. Although the instant matter does not involve the typical intentional withholding of the documents as is routinely involved for an inference, G & T’s control of the documents and the potential prejudice to defendants, makes an inference a possible sanction for spoliation.
Another sanction is to hold the attorney-client privilege is lost and the contested documents discoverable.
Addressing the eight documents at issue and consistent with the case law noted herein, the litigation hold letter produced is discoverable. In light of the court’s earlier decision that the underlying facts of the Zelley memorandum were discoverable, those facts related to the Zelley memorandum are similarly subject to production. As described herein, those portions of the documents subject to the work
V. Conclusion
Therefore, consistent with the reasoning contained herein, IT IS ORDERED and ADJUDGED that defendants’ motion to compel (D.I. 279) is GRANTED in part and DENIED in part:
1. Production of documents by Acacia does not operate as a waiver of Connolly Bove’s work product protection. Acacia, alone, could not waive the work product privilege of Connolly Bove.
2. Connolly Bove has standing to assert the work product protection because the production of documents by Acacia did not extinguish its work product privilege. Six Flags’ motion to compel regarding those documents is DENIED.
3. The crime-fraud exception does not operate to pierce the attorney-client privilege. Six Flags has neither demonstrated a prima facie case of fraud, nor a plan to perpetrate an ongoing crime or fraud.
4. The destruction of documents at the BAE site constitutes spoliation for which the following sanction requiring production of certain documents or portions of documents is imposed regarding eight of the documents at issue:
a.Exhibit 27-A,191 an email from Connolly Bove to Acacia regarding an obligation to preserve documents is a litigation hold letter and subject to production based on the relevant case law and analysis contained herein.192
b. Exhibit 27-B is protected under Connolly Bove’s work product protection and shall be returned.193
c. Exhibit 27-C, or the Zelley memorandum, has already been addressed and the court’s earlier decision controls.194
d. Exhibit 27-D, like the Zelley memorandum, is subject to production in part as it relates to facts.195
i. The entire first paragraph is discoverable with the exception of the words following “competitors” and before the phrase “whether there would have been” in the fifth sentence of line eight.
ii. The second paragraph is discoverable from “his assertion” through the conclusion of the first sentence. The second sentence of this paragraph is redacted. The third sentence starting with “[w]hen” .is discoverable in whole.
iii. Only the third sentence in the third paragraph is subject to production beginning with “[h]e also” and ending with “sure.” The remainder of the third paragraph is redacted on the basis of attorney work product privilege.
iv. The fourth and final paragraph of Exhibit 27-D is protected by attorney work product and shall be redacted.
e. Exhibit 27-E is subject to production in part.196 The first email exchange*492 starting with the number “3” and ending with “adventure” is discoverable. The second email exchange beginning with the word “[h]ow” and ending with the word “litigation” is also discoverable. The third email exchange in Exhibit 27-E is a reproduction of Exhibit 27-D the production of which is limited to the extent described in paragraph 4d above.
f. Exhibit 27-F is protected under Connolly Bove’s work product protection and shall be returned.197
g. In light the findings herein, Exhibit 27-G is not relevant to the claims and defenses in this matter and is not discoverable.198 It addresses the potential conflict issues arising between Acacia and Magnetar which resulted in Connolly Bove’s withdrawal as counsel.
h. Exhibit 27-H which is the same as Exhibit 27-1 is also not relevant and shall be returned. It is a letter from Connolly Bove addressing the conflict that arose between Acacia and Magnetar, and the bases for its withdrawal as counsel.199
i. Regarding Exhibit 27-1, since it is the same document as Exhibit 27-H, it shall be returned.200
5. Except as ordered herein, the documents identified by Connolly Bove as subject to the attorney work product privilege shall also be returned.
6. Within in 14 calendar days, defendants and its counsel are to return the documents so designated by the court. Plaintiffs shall provide the redacted documents to defendants within the same time period.
. There are over twenty amusement park owners and operators named as defendants in this patent infringement suit. These defendants will collectively be referred to as “Six Flags” throughout this opinion.
. D.I. 1.
. D.I. 280 at 1.
. Id.
. Id.
. Id., Ex. 1, Exclusive License Agreement.
. See Acacia Research Group LLC About Us, ACACIA RESEARCH GROUP LLC (2008-2012), http://acaciatechnologies.com/aboutus_ main.htm.
. D.I. 280, Ex. 1, Exclusive License Agreement.
.Id. at 2.
. Id., Ex. 4, Non-Exclusive Patent License and Settlement Agreement.
. Id.
. Compare D.I. 280 at 9 (asserting after Acacia withdrew from litigation, Connolly Bove did not provide any legal advice to Magnetar), and D.I. 283 at 4 (arguing both Magnetar and G & T retained Connolly Bove).
. D.I. 280 at 2.
. Id.
. Id., Ex. 27-C.
. Id. at 12.
. Id. at 3, Ex. 2 at 2-3.
. Id. at 3, Ex. 4.
. Id. at 4, Ex. 8.
. Id., Ex. 7 at 10:3-16; Ex. 8. The complaint in this case was filed in March 2007. On April 11, 2007, five weeks after the complaint was filed, 55 boxes of documents from BAE were destroyed. On July 9, 2007, an additional 329 boxes of documents were destroyed. Finally, in November 2007 another 400 boxes of documents were destroyed. During depositions, plaintiffs reported the documents at issue were present in the storage facility. When defendants went to the storage facility, they discovered the stored documents were being destroyed.
. Id. at 4.
. D.I. 285, Bruce Page ("Page”) Decl. (Director of Dallas Operations at G & T, discussing routine disposal of records) at ¶¶ 1-3; D.I. 286, Ray Fodder ("Fodder”) Decl. (Director of Contract Administration for BAE Automated, discussing disposal of BAE records) at ¶¶ 1-4; D.I. 288, Dan Pockrus (“Pockrus”) Decl. (Parts, Sales and Warranty Manager with G & T Conveyor, discussing routine disposal of records) at ¶¶ 1-4.
. D.I. 283 at 1; D.I. 284, Ex. A at 16-17, 89-90.
. D.I. 280 at 4.
. Id.
. Id. at 5.
. Id. at 4, Ex. 5.
. Id., Ex. 11.
. Id. at 5.
. Id.
. Id. at 5-6, Ex. 17.
. Id. at 6, Ex. 19. The objection was based on exceeding the scope of discovery under Fed. R. Civ. P. 26 and this court's order of April 16, 2010.
. Id. at 6, Ex. 22.
. See D.I. 280 at 6 (asserting Acacia waited two months before requesting the documents be returned), and D.I. 283 at 6 (arguing Acacia demanded return of the documents on March 21, 2012, which is two months after the production date of January 17, 2012).
. D.I. 281 at 3-4.
. Id. at 3.
. Id. at 3, Ex. B.
. Id. at 3.
. Id. at 6-7.
. D.I. 280 ató, Ex. 25.
. Id. at 6, Ex. 26.
. D.I. 279; D.I. 280.
. D.I. 282, Ex. A, Hearing Transcript at 71:10-77:18.
. Id. at 76:12-76:22.
. Id. at 72:3-8.
. Id. at 72:9-14.
. Id. at 73:2-8.
. Id. at 74:8-12.
. Id. at 76:23-77:3. Objections have since been filed to this ruling which is presently before Judge Stark. See D.I. 274.
. D.I. 297.
. Id.
. Id.
. Id.
. Id.
. The court is mindful of the apparent whipsaw effect the motions and arguments presented in this matter could occur between this court and the California District Court.
. In re Teleglobe Commc’n Corp., 493 F.3d 345, 359 (3rd Cir.2007).
. Hickman v. Taylor, 329 U.S. 495, 510-11, 67 S.Ct. 385, 91 L.Ed. 451 (1947).
.Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981).
. In re Teleglobe Commc’n Corp., 493 F.3d at 359.
. Lemelson v. Bendix Corp., 104 F.R.D. 13, 16 (D.Del.1984).
. Hercules, Inc. v. Exxon Corp., 434 F.Supp. 136, 156 (D.Del.1977).
. IBM v. Sperry Rand Corp., 44 F.R.D. 10, 13 (D.Del.1968).
. Fidelity and Deposit Co. of Maryland v. McCulloch, 168 F.R.D. 516, 521 (E.D.Pa. 1996).
. Id. at 522.
. Westinghouse Elec. Corp. v. Republic of Phil., 951 F.2d 1414, 1427-28 (3rd Cir.1991).
. Id. at 1428.
. Id.
. Id.
. Id. at 1430.
. Id.
. In re Teleglobe Commc'n Corp., 493 F.3d at 359.
. Id.
. Id.
. Id.
. Id.
. Id. at 363; Restatement (Third) of the Law Governing Lawyers § 75 (2000).
. In re Teleglobe Commc'n Corp., 493 F.3d at 363.
. Id.
. Id.
. Id.; Restatement (Third) of the Law Governing Lawyers § 75(2) (2000).
. In re Teleglobe Commc'n Corp., 493 F.3d at 363.
. Id.
. See Hercules, Inc. v. Exxon Corp., 434 F.Supp. 136, 155 (D.Del. 1977) ("Since the attorney-client privilege is a client’s privilege, while work product immunity may be invoked only by an attorney, waiver of attorney-client privilege does not necessarily also waive work product immunity, as to an attorney's memoranda on the same subject.”); see also RhonePoulenc Rorer Inc. v. The Home Indem. Co., 32 F.3d 851, 866 (3rd Cir.1994) ("[T]he work product doctrine belongs to the professional, rather than the client.”).
. Hercules, 434 F.Supp. at 152.
. Id.
. In re Grand Jury Proceedings (PMC Corp.), 604 F.2d 798, 801 (3rd Cir.1979).
. See In re Grand Jury (00-2H), 211 F.Supp.2d 555, 562 (M.D.Pa.2001) (finding client could indirectly assert work product privilege); see also Grand Jury Proceedings (FMC Coip.), 604 F.2d at 801 (holding client has standing to assert its attorney’s work product privilege).
. Grand Jury Proceedings (FMC Corp.), 604 F.2d at 801 n. 4.
. In re Grand Jury (Impounded), 138 F.3d 978, 981 (3rd Cir. 1998).
. Novartis Pharm. Corp. v. Abbott Lab., 203 F.R.D. 159, 165 (D.Del.2001).
. Id.
. Micron Technology, Inc. v. Rambus Inc., 645 F.3d 1311, 1320 (Fed.Cir.2011)..
. G.E. Harris Ry. Elec., LLC v. Westinghouse Air Brake Co., C.A. No. GMS, 2004 WL 5702740, at *2 (D.Del.2004).
. Positron Mfg., Inc. v. Diebold, Inc., C.A. No. 02-466-GMS, 2003 WL 21104954 at *2 (D.Del.2003).
. Micron Technology, 645 F.3d at 1320.
. Id.
. In re Wechsler, 121 F.Supp.2d 404, 427 (D.Del.2000).
. G.E. Harris Ry. Elec., LLC., 2004 WL 5702740, at *2.
. Schmid v. Milwaukee Elec. Tool Corp., 13 F.3d 76, 79 (3rd Cir.1994).
. Chambers v. NASCO, Inc., 501 U.S. 32, 43, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991).
. Gumbs v. Int’l Harvester, Inc., 718 F.2d 88, 96 (3rd Cir.1983); United States v. Cherkasky Meat Co., 259 F.2d 89 (3rd Cir.1958).
. Gumbs, 718 F.2d at 96.
. Brewer v. Quaker State Oil Ref. Corp., 72 F.3d 326, 334 (3rd Cir.1995).
. Id.
. Mosaid Techs., Inc. v. Samsung Elecs. Co., 348 F.Supp.2d 332, 335 (D.N.J.2004).
. Schmid, 13 F.3d at 79.
. Baliotis v. McNeil, 870 F.Supp. 1285, 1289 (M.D.Pa.1994).
. Micron Technology, 645 F.3d at 1328.
. Schmid, 13 F.3d at 80.
. Micron Technology, 645 F.3d at 1328.
. Schmid, 13 F.3d at 80.
. Chambers, 501 U.S. at 45-46, 111 S.Ct. 2123.
. Micron Technology, 645 F.3d at 1329.
. See Major Tours, Inc. v. Colorel, C.A. No. 05-3091, 2009 WL 2413631, at *2 (D.N.J. Aug. 4, 2009) (holding litigation hold letter discoverable due to finding of spoliation); Keir v. Unumprovident Corp., C.A. No. 02-CV-8781(DLC), 2003 WL 21997747, at *6 (S.D.N.Y. Aug. 22, 2003) (allowing analysis of emails after finding electronic records ordered preserved were erased); Zubulake v. UBS Warburg LLC, 229 F.R.D. 422, 425 (S.D.N.Y.2004) (disclosing details of litigation hold communication after discovering email had not been produced); Cache La Poudre Feeds, LLC v. Land O’Lakes, Inc., 244 F.R.D. 614, 634 (D.Colo.2007) (permitting plaintiff to take deposition to explore procedures used to preserve documents after finding defendants expunged hard drives of employees after litigation had begun); United Medical Supply Co. v. United States, 77 Fed.Cl. 257, 262 (Fed.Cl. 2007) (ordering production of defendant's hold letters after finding defendant spoliated evidence).
. Major Tours, 2009 WL 2413631, at *5.
. Id. at *4-5.
. Id.
. Wachtel v. Health Net, Inc., 239 F.R.D. 81, 102 (D.NJ.2006).
. Id. at 108-118.
. Id. at 102.
. Id. at 113.
. Id.
. Hercules, 434 F.Supp. at 155.
. Id.
. See WebXchange Inc. v. Dell Inc., 264 F.R.D. 123, 129 (D.Del.2010) (finding allegations alone insufficient for prima facie case of
. Allergan Inc. v. Pharmacia Corp., Civ. A. No. 01-141-SLR, 2002 WL 1268047 at *1 (D.Del. May 17, 2002).
. Hercules, 434 F.Supp. at 155.
. Id.
. Id.
. Id.
. Id.
. D.I. 280 at 6-7.
. Lemelson v. Bendix Corp., 104 F.R.D. 13, 16 (D.Del.1984).
. Hercules, Inc. v. Exxon Corp., 434 F.Supp. 136, 156 (D.Del. 1977).
. IBM v. Sperry Rand Corp., 44 F.R.D. 10, 13 (D.Del.1968).
. D.I. 283 at 6-7, Ex. N, O and R. See also, D.I. 297, Minute Order dated June 26, 2012.
. Fidelity and Deposit Co. of Maryland v. McCulloch, 168 F.R.D. 516, 522 (E.D.Pa. 1996).
. Compare D.I. 280 at 6 (asserting Acacia sent the documents intentionally), and D.I. 283 at 6 (arguing Acacia sent the documents inadvertently).
. Compare D.I. 280 at 6 (arguing Acacia waited two months before requesting the documents be sent back), and D.I. 283 at 6 (asserting Acacia demanded the return of the documents on March 21, 2012, which was two months after production on January 17, 2012).
.D.I. 280 at 7-10.
. Westinghouse, 951 F.2d at 1430.
. The exact number of documents Connolly Bove asserts are subject to the work product protection is a bit uncertain. See D.I. 280 at 6, Ex. 26 (describing over seventy-six for which work product was asserted) and D.I. 303 (alleged waiver of sixty-four documents Connolly Bove is trying to claw back), whatever the number of documents involved, none were produced for in camera review by the court. However, in light of the findings herein, such a review is unnecessary.
. D.I. 280, Ex. 1, Exclusive License Agreement.
. Id.
. D.I. 280, Exs. 27-A, 27-B, 27-C, 27-E, 27-F.
. D.I. 280 at 9.
.Teleglobe, 493 F.3d at 362.
. D.I. 280 at 9.
. Id.
. D.I. 280 at 10.
. D.I. 283 at 4-5.
. Teleglobe, 493 F.3d at 363.
. Id.
. D.I. 280 at 10.
. D.I. 281 at 2.
. D.I. 280 at 10-11.
. Novartis Pharm. Corp. v. Abbott Lab., 203 F.R.D. 159, 165 (D.Del.2010).
. Compare D.I. 280 at 6 (asserting Acacia sent the documents intentionally), and D.I. 283 at 6 (arguing Acacia sent the documents inadvertently).
. Id.
. D.I. 281 at 3-4; D.I. 283 at 5-7.
. The finding herein does not change the court's prior analysis regarding the Zelley document which was provided to and reviewed by the court during the April 2012
. The court also learned for the first time that Six Flags possessed other documents beyond the Zelley memorandum that potentially were subject to the work doctrine protection.
. See D.I. 282, Ex. D and F.
. Hercules, 434 F.Supp. at 155.
. WebXchange Inc. v. Dell Inc., 264 F.R.D. 123, 129 (D.Del.2010) (finding allegations alone insufficient for prima facie case of fraud); In re Spalding Sports Worldwide, Inc., 203 F.3d 800, 807 (Fed.Cir.2000) (holding “inequitable conduct is not by itself common law fraud”).
. D.I. 280 at 3-4.
. D.I. 283 at 7.
. Hercules, 434 F.Supp. at 155.
. Id.
. Id. at 3-4.
. D.I. 283 at 1-3.
. Micron Technology, Inc. v. Rambus Inc., 645 F.3d 1311, 1320 (Fed.Cir.2011).
. D.I. 283 at 1; D.I. 288, Pockrus Decl. at ¶¶ 1-4.
. D.I. 284, Ex. A Dan Pockrus ("Pockrus”) Deposition (Parts, Sales and Warranty Manager with G & T Conveyor, discussing routine disposal of records) at 89:8-90:25.
. D.I. 285, Page Deck at ¶¶ 1-3; D.I. 286, Fodder Deck at ¶¶ 1-4; D.I. 288, Pockrus Deck at ¶¶ 1-4.
. D.I. 285, Page Deck at ¶ 1; D.I. 286, Fodder Deck at ¶ 3; D.I. 288, Pockrus Deck at ¶ 1.
. D.I. 285, Page Decl. at ¶2; D.I. 286, Fodder Decl. at ¶¶ 2-3; D.I. 288, Pockrus Decl. at ¶ 2.
. D.I. 280, Ex. 8.
. Id.
. D.I. 283 at 1.
. Schmid v. Milwaukee Elec. Tool Corp., 13 F.3d 76, 79 (3rd Cir. 1994).
. Gumbs v. Int’l Harvester, Inc., 718 F.2d 88, 96 (3rd Cir. 1983); United States v. Cherkasky Meat Co., 259 F.2d 89 (3rd Cir.1958).
. Gumbs, 718 F.2d at 96.
. D.I. 283 at 1.
. Id.
. Id.
. See Major Tours, Inc. v. Colorel, C.A. No. 05-3091, 2009 WL 2413631, at *2 (D.N.J. Aug. 4, 2009) (holding litigation hold letter discoverable due to finding of spoliation); Keir v. Unumprovident Corp., C.A. No. 02-CV-8781 (DLC), 2003 WL 21997747, at *6 (S.D.N.Y. Aug. 22, 2003) (allowing analysis of emails after finding electronic records ordered preserved were erased); Zubulake v. UBS Warburg LLC, 229 F.R.D. 422, 425 (S.D.N.Y.2004) (disclosing details of litigation hold communication after discovering email had not been produced); Cache La Poudre Feeds, LLC v. Land O’Lakes, Inc., 244 F.R.D. 614, 634 (D.Colo.2007) (permitting plaintiff to take deposition to explore procedures used to preserve documents after finding defendants expunged hard drives of employees after litigation had begun); United Medical Supply Co. v. United States, 77 Fed.Cl. 257, 262 (Fed.Cl. 2007) (ordering production of defendant’s hold letters after finding defendant spoliated evidence).
. Id.
. Major Tours, C.A. No. 05-3091, 2009 WL 2413631, at *4.
. Id.
. All eight exhibits referenced herein are found at D.I. 280.
. D.I. 280, Ex. 27-A.
. D.I. 280, Ex. 27-B.
. D.I. 280, Ex. 27-C; D.I. 282, Ex. A, Hearing Transcript at 71:10-77:18.
. D.I. 280, Ex. 27-D.
. D.I. 280, Ex. 27-E.
. D.I. 280, Ex. 27-F.
. D.I. 280, Ex. 27-G.
. D.I. 280, Ex. 27-H.
. D.I. 280, Ex. 27-1.
. This decision is distinguishable from the minute order of June 26, 2012 of the District Court for the Central District of California, since spoliation, waiver by Connolly Bove of its work product protection, and waiver by G & T and Magnetar of the attorney-client privilege for the eight documents in question were not presented to nor addressed by that court. As a result, Fed.R.Evid. 502(d) is not implicated on these issues.