Illumina, Inc. v. BGI Genomics Co., Ltd

Background

This was a discovery order concerning five entries in the defendants’ privilege log. Illumina argued that the issue was urgent. The court reviewed the emails privately, rather than relying only on the parties’ descriptions.

Privilege Rulings

The court held that the first entry met the standard for attorney-client privilege, which protects certain confidential communications made for obtaining or giving legal advice. The second entry was a direct communication to an attorney seeking legal advice and was privileged. The third entry transmitted legal advice that an employee had received from counsel and was also privileged.

For the fourth and fifth entries, the defendants had proposed producing a redacted version of the fourth entry and the entire fifth entry, but only if Illumina agreed that doing so would not waive attorney-client privilege or work-product protection. Illumina did not agree to that condition. The court ruled that the proposal should not have been contingent on Illumina’s agreement. It concluded that the defendants had drawn the line correctly: the fifth entry was neither privileged nor protected work product, and the fourth entry was to be produced with a sentence redacted.

Order

Judge Thomas S. Hixson ordered the defendants to immediately produce the Redacted Zhao Email Chain 1.pdf, Unredacted Zhao Email Chain 2.pdf, and HC-202-03-31.xlsx. The court stated that these materials should have been produced before the deposition and that the spreadsheet contained enough information to support additional questioning. The defendants were ordered to make Zhao available for one additional hour of deposition concerning those materials by April 29, 2020.