Spectrum Scientifics, LLC v. Celestron Acquisition, LLC

Background

Direct Purchaser Plaintiffs challenged defense counsel’s instructions that Celestron CEO Corey Lee and former chairman Alan Hale not answer certain deposition questions. The defendants maintained that the questions sought information protected by attorney-client privilege or the attorney work product doctrine.

Questions to Corey Lee

Defense counsel instructed Lee not to answer whether he had discussed the case with Mr. Shen shortly before his deposition and two questions concerning whether Celestron had withdrawn, or had affirmatively done anything to withdraw, from a conspiracy with other defendants.

The court held that none of the three questions necessarily required disclosure of privileged or work product information. A concern that Lee might volunteer protected information did not justify instructing him not to answer. Counsel could remind him not to disclose communications with or advice from counsel. For the second and third questions, the court said counsel could object to the questions’ form so that the plaintiffs could rephrase them rather than preventing an answer.

Question to Alan Hale

The plaintiffs asked Hale whether he recalled discussing that one of Celestron’s competitors had asserted antitrust claims against Celestron. The court found that the question did not necessarily require disclosure of protected information and that counsel should not have instructed Hale to answer only after excluding communications with counsel.

The court explained that attorney-client privilege protects confidential communications made to obtain legal advice and the advice given in response. The work product doctrine protects certain materials prepared for litigation. Neither protection generally covers facts, unless revealing the facts would inherently disclose an attorney’s strategy or mental impressions. Thus, even if Hale learned about the antitrust claims through a communication with counsel, he could not refuse to answer a factual question about when he learned of the claims. The underlying communication itself could remain protected.

Disputed Documents

During the depositions, defense counsel objected to questions about an April 20, 2020 email addressed to Lee and a February 24, 2016 email sent by Hale, asserting that each email was privileged and had been produced inadvertently.

The court could not determine from the dispute letter whether the documents were covered by an earlier order governing disputes about items on the defendants’ privilege logs. If covered, the parties were expected to follow that order. If not covered, the parties had to confer further and submit a separate discovery dispute letter if they remained in disagreement.

Disposition

The court permitted the Direct Purchaser Plaintiffs to take additional deposition testimony from Lee and Hale, if they chose, to obtain answers to the questions or rephrased versions consistent with the order. The further depositions were to occur by videoconference by January 31, 2024, unless the parties agreed otherwise. The court did not issue a substantive ruling on whether either disputed email was privileged or protected work product.