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

Background

The parties disputed Defendants’ claims that certain documents were protected by attorney-client privilege. Illumina had asked Defendants to provide privilege logs and had requested court review of six documents. After the court ordered additional logs and later ordered Defendants to submit documents for in-camera review—private review by the judge—Illumina objected to the way Defendants submitted supporting materials, including a cover letter, an amended privilege log, and a declaration from Avanindra Chaturvedi.

Procedural rulings

The court granted Illumina’s motion for leave to file a reply brief. It held that Illumina’s objection to Defendants’ submission of materials in camera and off the public docket was moot because Defendants later filed redacted versions in the public record.

The court rejected Illumina’s argument that Defendants’ amended privilege log and declaration violated the court’s deadlines. It explained that the court had ordered in-camera review because the original privilege logs did not adequately support the privilege claims, and that Defendants could further explain those claims in the ordered submissions. The court also found that Chaturvedi’s declaration had an appropriate foundation, was mostly not hearsay, and did not contradict the cited deposition testimony.

The court ruled that Illumina had waived its argument that Chinese law governed the privilege claims. It reasoned that the argument was outside the scope of the earlier discovery dispute and was raised after the deadline for moving to compel had expired.

Privilege rulings

The court sustained Defendants’ privilege claims concerning documents CGI001321371, CGI3618861, CGI3620255, CGI3668640, CGI003735331, CGI003735987, CGI003736284, KEY00066590, KEY01500985, KEY01548905, and KEY01559770.

The court overruled Defendants’ privilege claims concerning CGI001296834, CGI3625530, CGI3666721, CGI36667099, CGI3667695, and CGI3668247, except for the redaction on page 9 of CGI3668247. The court found that the challenged material generally contained business information, factual information, or references to legal risk rather than legal advice or requests for legal advice. It found the page 9 redaction in CGI3668247 privileged because it identified a specific legal risk.

Further review

The court declined to conduct in-camera review of the larger set of yellow-highlighted documents. It noted that it had sustained privilege claims for about three-quarters of the documents already reviewed and that the rejected claims involved small redactions that did not significantly change the documents’ contents. The court also concluded that the dispute had become costly and unproductive satellite litigation that should end.

Disposition

The order granted Illumina’s motion for leave to file a reply, found one objection moot, rejected Illumina’s other procedural objections, sustained some of Defendants’ privilege claims, overruled other privilege claims in part as specified above, and declined further in-camera review.