(finding that a categorical log was acceptable; "In the instant matter, the log provides information regarding the date ranges of the communications, the format of the communications ('Document Type'), the attorneys and clients who sent and/or received the communications ('Sender(s)/Recipient(s)/Copyees'), description of the type of information included in each category ('Category Description'), the privilege asserted ('Privilege'), and the number of documents in each category. The Plaintiffs' log does not identify who, of the attorneys and clients named within each category, created each document, or what specific date each document was created within the range identified. It merely identifies the attorneys and clients who sent and/or received the documents, one of which is assumedly the author of each document. In providing the description of the type of information included in each category, Plaintiffs disclose information concerning the nature of the legal advice or attorney work product, as each category description describes '[c]ommunications with outside counsel [or patent agent] providing, requesting, or reflecting legal advice regarding . . . ' ECF No. 199 attach. 4 at 1-5. Although the information in the log is somewhat sparse, Interbake Food [N.L.R.B. v. Interbake Foods, LLC, 637 F.3d 492, 502 (4th Cir. 2011)] teaches that the log need not be overly detailed, it merely must provide the requesting party with sufficient information to be able to assess the privilege claim. The category descriptions provide the Defendants an opportunity to assess the privilege asserted, as they explain whether the communication was with outside counsel or an outside patent agent, as well as whether the communication involved post-grant review of the patent, litigation of the patent, negotiation of a nondisclosure agreement, licensing of the patent, prosecution of the patents, or maintenance fees."; "No District Court within the Fourth Circuit has enunciated a specific test to determine if a categorical privilege log is sufficient. Outside of the Fourth Circuit, the Southern District of New York expressed that 'the courts retain some discretion to permit less detailed disclosure in appropriate cases.' Securities Exchange Commission v. Thrasher, 1996 WL 125661, at *1 (S.D.N.Y. Mar. 20. 1996). The Court there laid out a test that 'the court may permit the holder of withheld documents to provide summaries of the documents by category' when '(a) a document-by-document listing would be unduly burdensome and (b) the additional information to be gleaned from a more detailed log would be of no material benefit to the discovering party in assessing whether the privilege claim is well-grounded.' Id."; "Although no district court within the Fourth Circuit has utilized the Thrasher test, it has been adopted in primarily unpublished opinions by district courts within the Second. Fifth, Sixth, Ninth. Tenth. Eleventh, and DC Circuits. See, e.g., Rosen v. Provident Life and Accident Ins. Co., 308 F.R.D. 670, 680 (N.D. Ala. 2015); U.S. S.E.C. v. LovesLines Overseas Management. Ltd., No. 04-302, 2007 WL 581909, at *1 n.5 (D.D.C. Feb. 21, 2007); McNamee v. Clemens, No. 09cv1647, 2014 WL 1682025. at *2 (E.D.N.Y. April 28, 2014); Manufacturers Collection Company, LLC v. Precision Airmotive, LLC, No. 3:12cv853, 2014 WL 2558888. at *2-3 (N.D. Tex. June 6, 2014); Securities and Exchange Commission v. Somers, No. 3:11cv165, 2013 WL 4045295. at *2 n.2 (W.D. Ky. Aug. 8, 2013); Games2U, Inc. v. Game Truck Licensing, LLC, No. MC-13-53, 2013 WL 4046655. at *7 (D. Ariz. Aug. 9, 2013); PostX Corp. v. Secure Data Motion, No. C 02-04483, 2004 WL 2623234. at *1 (N.D. Cal. June 9, 2004); Securities and Exchange Commission v. Nacchio, No. 05cv480, 2007 WL 219966, at *9 (D. Colo. Jan. 25. 2007).")
| Case Date |
Jurisdiction |
State |
Cite Checked |
| 2016-10-21 |
Federal |
VA |
|