Ownership Dispute Undermines Common Interest Privilege

The court granted in part defendant's motion to compel the production of documents withheld as privileged. "Plaintiffs maintain that communications between [an individual plaintiff and his brother] pertaining to litigation strategy or advice of counsel fall squarely within the Common Interest Doctrine and are privileged. Plaintiffs predicate this assertion on their argument that [the individual plaintiff and his brother] have a common interest in the prosecution of the infringement of the patent at issue. . . . [I]t appears that [the individual plaintiff and his brother] are adverse to each other. They are currently engaged in litigation in [another action] over ownership of [a] closely allied . . . patent which embraces claims similar to those in the immediate case. Direct communications between [the individual plaintiff and his brother] pertaining to rights and title to the [patents in both actions] or litigation strategy in the case presently before this Court would also be subject to disclosure. [Plaintiffs] are obviously not engaged in a joint strategy for the prosecution of this case. They are clearly at loggerheads and simply do not share a common interest."

Porto Technology, Co., Ltd. et. al. v. Cellco Partnership d/b/a Verizon Wireless et. al., 3-13-cv-00265 (VAED November 5, 2013, Order) (Hudson, J.)