General Electric Co. v. L3Harris Technologies, Inc.

Background

The underlying case concerns ownership of two blocks of static Internet Protocol addresses. The addresses were originally registered by Harris Controls and Composition, a division of L3Harris’s predecessor. Harris later formed a joint venture with General Electric, and Harris sold its interest in that venture to General Electric. General Electric contends that the address blocks were transferred to the joint venture and therefore became part of what it acquired. L3Harris contends that the blocks were never transferred and remained with Harris and later L3Harris.

While L3Harris was trying to sell the blocks, it learned that General Electric claimed ownership. L3Harris sought assistance from Hilco Streambank, an Internet-address broker that had previously helped L3Harris sell address blocks. L3Harris withheld 24 documents involving Hilco under attorney-client privilege, common-interest privilege, and the work-product doctrine. L3Harris later agreed to produce six documents. One additional document was properly withheld because it contained counsel’s highlighting, leaving 17 communications at issue in the opinion.

Discovery dispute

The parties submitted a joint letter concerning the dispute. The court reviewed the 17 documents privately and considered whether they were protected from disclosure by attorney-client privilege or the work-product doctrine. The opinion explains that the court had already addressed and rejected L3Harris’s common-interest-privilege argument during a conference.

Attorney-client privilege

Attorney-client privilege generally protects confidential communications between a client and an attorney made to obtain or provide legal advice. The party asserting the privilege bears the burden of showing that it applies.

L3Harris argued that the communications with Hilco were protected under the rule from United States v. Kovel. That rule can protect communications with a third party when the third party is assisting a lawyer by interpreting or translating information the client already possesses, in a way that helps the lawyer provide legal advice.

The court rejected that argument. L3Harris described Hilco as a broker retained to sell or otherwise dispose of the address blocks and as having specialized business knowledge about address-block transfers. L3Harris did not provide evidence that Hilco was retained as a legal adviser, that attorney Jack Hazan was retained to provide legal advice, or that Hilco was performing investigative or consulting work under the supervision of L3Harris’s counsel.

The court also found that Hilco was providing L3Harris with new information from the publicly available American Registry for Internet Numbers registry, rather than interpreting or translating information that L3Harris already possessed. The fact that the information may have helped L3Harris’s attorney provide legal advice did not itself make the communications privileged. The court therefore held that the attorney-client privilege did not protect the 17 communications.

Work-product doctrine

The work-product doctrine can protect documents prepared by or for a party or its representative because of a real prospect of specific litigation. Documents prepared in the ordinary course of business, or documents that would have been created whether or not litigation was anticipated, generally are not protected.

The communications from July 6 through August 18, 2022, showed that L3Harris and General Electric were discussing ownership of the address blocks, but they did not show that L3Harris was taking affirmative steps in anticipation of litigation. They did not discuss an anticipated lawsuit, litigation strategy, or potential claims.

The communications from April 26 through July 6, 2023, were sent after the registry had notified L3Harris that ownership was disputed. But the court found no indication that L3Harris was contemplating litigation or taking affirmative steps toward it. The registry had said that the parties could work toward a solution or obtain a court order; it had not required a lawsuit, and the communications did not show that L3Harris had ruled out an out-of-court resolution. The work-product doctrine therefore did not protect those communications either.

Disposition

The court held that the withheld communications were not protected by attorney-client privilege or the work-product doctrine. Judge Valerie Figueredo directed L3Harris to produce 17 documents identified by privilege-log entry numbers 2, 12, 14–16, 19–21, 27, 29, 30–31, 33–35, 46, and 57. The opinion resolved a discovery dispute; it did not decide the underlying ownership dispute over the Internet-address blocks.