AbCellera Biologics Inc. v. Bruker Cellular Analysis, Inc.

Background

AbCellera Biologics, Inc. and The University of British Columbia, referred to collectively in the opinion as “AbCellera,” asked the court to resolve a discovery dispute with Bruker Cellular Analysis, Inc. The dispute concerned a written presentation prepared by Dr. George Fox, PhenomeX’s then-in-house counsel, during a period when PhenomeX was seeking to be acquired. Fox shared the presentation with potential acquirers, including Bruker Corporation, which later acquired PhenomeX. The surviving corporation became Bruker Cellular, the current defendant.

AbCellera sought production of the presentation and a further deposition of Fox about it. Bruker Cellular argued that the presentation was protected by the attorney work product doctrine and that sharing it with potential acquirers had not waived that protection. Bruker Cellular submitted the presentation for the court’s private review.

Legal standards

The attorney-client privilege protects confidential communications concerning legal advice when the communications are made and intended to remain confidential. The attorney work product doctrine protects documents prepared by or for a party or its representative because of anticipated litigation or for trial. Work product may be discoverable if the requesting party shows a substantial need and cannot obtain an equivalent through other means, although an attorney’s mental impressions, conclusions, opinions, and legal theories receive additional protection.

Disclosure of work product to a third party does not always waive protection. Waiver occurs when the disclosure is made to a litigation adversary or substantially increases the opportunity for potential adversaries to obtain the material.

Court’s analysis

After reviewing the presentation, the court found that it matched Bruker Cellular’s description and Fox’s deposition testimony. It was prepared for PhenomeX, described the status of the litigation, and reflected Fox’s assessments of various aspects of the litigation. The court held that the presentation qualified as attorney work product.

The court rejected AbCellera’s argument that the presentation was not work product because it was prepared after the complaint had been filed. The court explained that work product generated during litigation falls within the doctrine’s protection. The presentation’s additional business purpose—sharing it with potential acquirers—also did not defeat protection because the document was created because of the litigation.

The court found no basis to conclude that PhenomeX waived work product protection by making the presentation available to potential acquirers’ counsel in a diligence data room and presenting the information to potential-acquirer diligence teams. AbCellera identified no circumstances showing that the disclosure substantially increased the likelihood that potential adversaries could obtain the presentation’s contents. AbCellera also failed to show the substantial need required to obtain protected work product.

Because the court resolved the dispute under the work product doctrine, it did not decide whether the presentation was also protected by attorney-client privilege or whether any attorney-client privilege had been waived.

Disposition

Magistrate Judge Virginia K. DeMarchi denied AbCellera’s motion to compel production of Dr. Fox’s presentation and denied its request for a further deposition of Dr. Fox on that subject.