Uniloc USA, Inc. v. Apple Inc.
- William Alsup
- 3:18-cv-00358
- U.S. District Court · Northern District of California
- 4
In Uniloc USA v. Apple, Judge Alsup ordered Fortress to reassess privilege redactions in an investment memorandum and produce or resubmit it.
Fortress Credit Corp., the third-party subpoena recipient, had to reassess and either produce or resubmit the redacted memorandum to Apple Inc.; the order concerned discovery in the action involving Uniloc USA, Inc.
What happened
In Uniloc USA, Inc. v. Apple Inc., a third party called Fortress Credit Corp. had withheld portions of a 2017 investment memorandum sought by Apple in discovery.
The court reviewed the unredacted memorandum and Fortress’s privilege log privately. It found that some relevance-based redactions were allowed because the material did not relate to the claims or defenses, but questioned whether the remaining redactions were protected by attorney-client privilege.
Judge William Alsup ordered Fortress to reassess those privilege redactions. Fortress must produce the memorandum with only the allowed relevance redactions or submit narrower redactions, supported by specific sworn evidence, for another court review.
The detailed version
- Uniloc USA, Inc. v. Apple Inc. · No. 3:18-cv-00358
- William Alsup
- Oct. 9, 2020
Background
The court held a hearing on a joint discovery letter and ordered third-party Fortress Credit Corp. to produce a May 6, 2017 investment memorandum to Apple. Fortress was instructed to leave certain portions unredacted and to provide a privilege log for any other redactions. If the parties disputed the redactions, Fortress was to submit the unredacted document and privilege log for the court’s private review.
Fortress submitted those materials. The court observed that Fortress had redacted large portions of the 14-page memorandum based on relevance. Although large-scale relevance redactions generally are not appropriate, the court allowed the challenged relevance redactions because the material was not related to the claims and defenses in the action.
Attorney-Client Privilege
Fortress asserted attorney-client privilege over other redactions on pages 4, 8, 9, 10, and 11. Attorney-client privilege is a legal protection for confidential communications between a lawyer and client made for the purpose of providing or obtaining legal advice. The court explained that the privilege protects communications, not underlying facts, and that the party asserting it bears the burden of showing that it applies.
The court found it unclear whether Fortress had properly asserted privilege over the remaining redactions. The material was described as legal analysis prepared by Fortress’s in-house counsel, but in-house counsel may act in either a legal or business role. References to litigation do not necessarily show that a communication was made to obtain or provide legal advice.
The court also found that some redacted material was factual and therefore not privileged. For example, portions discussing an intellectual-property update included factual statements about Uniloc’s patent portfolio, and other redacted pages contained factual descriptions of Uniloc’s patents.
Order
The court ordered Fortress to review its attorney-client-privilege redactions under the legal standards described in the opinion. If Fortress could not support the privilege claim, it had to produce the memorandum to Apple by October 13, 2020, with only the approved relevance redactions. If Fortress continued to assert privilege, it had to submit narrower redactions by October 14, 2020, together with sworn declarations providing specific, redaction-by-redaction evidence supporting each privilege claim. Judge William Alsup stated that the court could take the matter under submission or require additional evidence or briefing.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.