Friday, July 13, 2012

Kilpatrick Townsend dodges a bullet

From within Wi-Lan v. LG

Because the district court did not apply the proper analysis to the privilege question, we vacate its production order and remand. We also vacate the contempt sanctions; on remand the district court may revisit whether Kilpatrick Townsend’s failure to comply was contempt.

At issue:

This appeal requires us to assess the consequences of Wi-LAN’s disclosure of the Townsend letter to its rival LG. We have no difficulty concluding that this disclosure implicated Wi-LAN’s attorney-client privilege. Though Kilpatrick Townsend suggests that the Townsend letter was always intended to be disclosed, and so was never really confidential (and so never really privileged), the available evidence demonstrates otherwise. The Town- send letter is marked “CONFIDENTIAL” on every page. It is addressed from an attorney to his client and contains detailed legal opinions. Kilpatrick Townsend has not offered evidence (as opposed to attorney argument) to justify departing from the obvious conclusion that the letter was at least initially confidential. We therefore agree with the district court that Wi-LAN’s disclosure of the letter waived both that confidentiality and Wi-LAN’s attorney-client privilege, at least as to the letter itself.
The question presented by this appeal thus concerns not whether Wi-LAN waived its privilege, but how far the waiver extended. Kilpatrick Townsend argues that under a fairness balancing test the scope of waiver should be narrow, essentially limited to the Townsend letter itself and reaching no other communication between Wi-LAN and Kilpatrick Townsend. LG, on the other hand, be- lieves the waiver should be broad, exposing to discovery a wide swath of attorney-client communications, both pre- and post-dating the Townsend letter, relating to the subject matter addressed therein. Kilpatrick Townsend does not argue here, as it did below, that Federal Rule of Evidence 502 should govern the scope of waiver here, on the theory that disclosures “in the context of” a federal proceeding qualify for the benefit of the rule.
It is well-established that when a client discloses to another person the content of a privileged attorney com- munication, the resulting privilege waiver may extend beyond the communication itself to other related matter. Weil v. Inv./Indicators, Research & Mgmt., Inc., 647 F.2d 18, 24–25 (9th Cir. 1981). LG suggests that this is both the beginning and the end of the inquiry. It says Wi-LAN waived privilege as to the Townsend letter, so it ipso facto waived privilege as to all other communications on the same subject matter. Kilpatrick Townsend, on the other hand, argues that basic considerations of fairness pre- clude a broad waiver in this case. It claims that LG is unable to articulate any prejudice it would suffer by assertion of privilege to matters beyond the four corners of the letter, and so there is no equitable reason to extend the waiver beyond the letter. Kilpatrick Townsend argues that by rejecting its attempt to incorporate such a fairness inquiry into assessing the scope of waiver, the district court legally erred.

The CAFC further noted:

As between the two directions put forward by the parties—one requiring fairness balancing for extrajudicial discloses, the other barring it—we conclude that the Ninth Circuit’s cases support the former far better than the latter. The Ninth Circuit has repeatedly endorsed fairness balancing in a variety of circumstances; more to the point it has never set forth, either expressly or inherently, any rule barring fairness’s application to extrajudi- cial disclosures. Nor do the Ninth Circuit’s cases suggest any policy reason why the fairness protections available for express disclosures in litigation should be unavailable to those who waive privilege pre-litigation. Such a rule, which LG promotes in this appeal, seems to us bad policy, and we decline to adopt it on the Ninth Circuit’s behalf.


Even in this appeal, where we agree with Kilpatrick Townsend that the district court committed legal error in its application of privilege doctrine, that is not the same as excusing failure to comply with a judicial order. In some cases one who disputes a subpoena’s lawful scope has no alternative but to invite a contempt citation in order to obtain appellate review. Here, however, Kilpatrick Townsend had options that it did not pursue. Nevertheless, it is not for this court to determine whether and to what extent Kilpatrick Townsend should pay a penalty for its failure to either properly move the district court for certification of an interlocutory appeal or to seek mandamus review from this court when faced with an unlawful production order.


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