Trading Techs. Int’l., Inc. v. eSpeed, Inc., No 04 C 5312, 05 C 1079, 05 C 4088, 05 C 4120, 05 C 4811 & 05 C 5164, 2007 WL 1302765 (N.D. Ill. May 1, 2007) (Moran, Sen. J.).
Judge Moran granted in part and denied in part plaintiff Trading Technologies’ ("TT") motion to compel production of defendants’ communications between themselves (more on this case in the Blog’s archives). Defendants asserted claims of attorney-client and work product privileges regarding various communications and information exchanged as part of a joint defense agreement among, at least, the various defendants and DJ-plaintiff (collectively "defendants") in the patent suits regarding TT’s patents. The Court explained that the joint defense privilege protects communications and exchange of information between parties that have expressly decided to cooperate in a litigation — with or without a written agreement. The Court held that defendants had expressed a sufficient intent to cooperate in their respective litigations against TT and, therefore, held that defendants need not produce communications made in relation to their joint defense. The Court required that defendants produce any written joint defense agreement or, in the absence of a written agreement, the identities of all members of the joint defense. The Court further held that third parties need not be identified to the extent that their identities are protected as work product, but that third parties should be identified if defendants’ communications with them are allegedly protected by attorney-client privilege. The Court also required that defendants produce all prior art in their possession, regardless of how it was located. And finally, the Court noted that "it must rely on the integrity of counsel to determine what is and is not privileged." As a result, the Court required that defendants produce "any communications not protected by a legitimate privilege . . . ."
You can download the opinion here.