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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MARYLAND
`Southern Division
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`INTELLECTUAL VENTURES I LLC, et al.,
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`Case No.: PWG-14-111
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`Plaintiffs,
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`CAPITAL ONE FINANCIAL CORP., et al., *
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`Defendants.
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`MEMORANDUM OPINION AND ORDER
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`This Memorandum Opinion and Order addresses a discovery dispute in an antitrust case
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`between Intellectual Ventures I LLC and Intellectual Ventures II LLC (“Intellectual Ventures”)
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`and Capital One Financial Corp., Capital One Bank (USA), N.A., and Capital One, N.A.
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`(“Capital One”). On May 13, 2016, Capital One objected to Intellectual Ventures’s privilege log
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`as failing to provide sufficient information for Capital One to assess Intellectual Ventures’s
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`privilege claims as to 13,000 documents. Defs.’ May 13, 2016 Ltr., ECF No. 466.
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`Subsequently, the parties narrowed the discovery dispute to 1,373 documents, but Capital One
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`continued to object to the sufficiency of Intellectual Ventures’s privilege log. Defs.’ June 20,
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`2016 Ltr., ECF No. 474. At a June 30, 2016 status conference, I summarized the law and my
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`own case-management procedures that govern civil discovery and privilege claims. June 30,
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`2016 Status Conference Tr. 3:12–4:24, 8:2–14:18, ECF No. 488. I then directed Intellectual
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`Ventures’s senior attorneys to personally review the 1,373 documents over a twenty-two day
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`Case 8:14-cv-00111-PWG Document 530 Filed 10/11/16 Page 2 of 9
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`period to confirm that their assertions of attorney-client privilege and work-product protection
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`comported with the law and procedures I had outlined. Id. at 12:12–18, 14:19–15:16, 22:4.
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`After the status conference, the parties further narrowed the number of disputed
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`documents to 130 emails derived from 37 discreet email chains and met on August 4, 2016 to
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`discuss Capital One’s remaining challenges. When the parties were unable to resolve their
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`residual disagreements, Capital One submitted a letter on August 5 requesting permission to file
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`a Motion to Compel Production of the 130 documents. ECF No. 497. At an August 19, 2016 in-
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`court status conference, I held that Intellectual Ventures waived the attorney-client privilege and
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`work-product protection for all but two of the thirty-seven email chains by failing to provide a
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`sufficient factual basis to support their privilege claims. Aug. 22, 2016 Paperless Order, ECF
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`No. 506. Intellectual Ventures submitted a letter requesting permission to file a Motion for
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`Reconsideration of this ruling, Pls.’ Mem., ECF No. 511, to which Capital One responded in
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`opposition, Defs.’ Opp’n, ECF No. 513. I informed the parties that I would treat their letters as a
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`Motion for Reconsideration and as an Opposition respectively, ECF No. 520, and provided
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`Intellectual Ventures an opportunity to file a Reply, of which Intellectual Ventures availed itself,
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`ECF No. 529.
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`Rule 54(b) governs motions for reconsideration of orders such as the August 22, 2016
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`Paperless Order “that adjudicate[] fewer than all the claims or the rights and liabilities of fewer
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`than all the parties.” Fed. R. Civ. P. 54(b). It provides that such an order “may be revised at any
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`time before the entry of a judgment adjudicating all the claims and all the parties’ rights and
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`liabilities.” Id.
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`The Fourth Circuit has not stated a standard for review of a Rule 54(b) motion, but it has
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`said that, “generally at least, a review of an interlocutory order under Rule 54 is not subject to the
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`2
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`Case 8:14-cv-00111-PWG Document 530 Filed 10/11/16 Page 3 of 9
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`restrictive standards of motions for reconsideration of final judgments under Rule 60.”
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`Fayetteville Investors v. Commercial Builders, Inc., 936 F.2d 1462, 1472 (4th Cir. 1991); see
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`also Am. Canoe Ass’n v. Murphy Farms, Inc., 326 F.3d 505, 514 (4th Cir. 2003). Nor is the
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`standard for Rule 59(e) binding on review under Rule 54. See Am. Canoe Ass’n, 326 F.3d at 514;
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`Cezair v. JPMorgan Chase Bank, N.A., No. DKC-13-2928, 2014 WL 4955535, at *1 (D. Md.
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`Sept. 30, 2014). Nonetheless, “courts frequently look to these standards for guidance in
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`considering such motions.” Cezair, 2014 WL 4955535, at *1; see also Peters v. City of Mt.
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`Rainier, No. GJH-14-955, 2014 WL 4855032, at *3 n.1 (D. Md. Sept. 29, 2014) (looking to Rule
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`60(b) standard); Harper v. Anchor Packing. Co., No. GLR-12-460, 2014 WL 3828387, at *1 (D.
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`Md. Aug. 1, 2014) (looking to Rule 59(e) standard); Potter v. Potter, 199 F.R.D. 550, 552 n.1
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`(D. Md. 2001) (applying Rule 59(e) standard). A Rule 59(e) motion “need not be granted unless
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`the district court finds that there has been an intervening change of controlling law, that new
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`evidence has become available, or that there is a need to correct a clear error or prevent manifest
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`injustice.” Robinson v. Wix Filtration Corp. LLC, 599 F.3d 403, 411 (4th Cir. 2010). Rule 60(b)
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`provides overlapping, but broader, bases for relief from a court order, including that there has
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`been “mistake, inadvertence, surprise, . . . excusable neglect[,] . . . newly discovered evidence[,]
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`. . . fraud . . . , misrepresentation, or misconduct”; that “the judgment is void” or “has been
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`satisfied”; or “any other reason that justifies relief.” Fed. R. Civ. P. 60(b).
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`In keeping with these standards, this Court has held that “[a] motion for reconsideration
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`is appropriate to ‘correct manifest errors of law or fact or to present newly discovered evidence,’
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`or where there has been an intervening change in controlling law.” Potter, 199 F.R.D. at 552 n.1
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`(citations omitted). It “is not a license for a losing party’s attorney to get a second bite at the
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`apple.” Id. at 552–53 (quoting Shields v. Shetler, 120 F.R.D. 123, 126 (D. Co. 1988)). These
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`Case 8:14-cv-00111-PWG Document 530 Filed 10/11/16 Page 4 of 9
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`“rules of constraint . . . make sense when a district court is asked to reconsider its own order”
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`because “[w]ere it otherwise, then there would be no conclusion to motions practice, each motion
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`becoming nothing more than the latest installment in a potentially endless serial that would
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`exhaust the resources of the parties and the court—not to mention its patience.” Pinney v. Nokia,
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`Inc., 402 F.3d 430, 452–53 (4th Cir. 2005) (quoting Potter, 199 F.R.D. at 553).
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`Intellectual Ventures seeks reconsideration of my ruling that it waived privilege as to
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`thirty-five of the thirty-seven disputed email chains “on the grounds that [it was] mistaken” about
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`my expectation that it provide affidavits in support of its continued assertions of privilege. Pls.’
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`Mem. 3. Specifically, Intellectual Ventures argues that providing affidavits was impractical
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`because, after senior attorneys reviewed the 1,373 disputed documents, the company continued
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`to assert privilege for 1,114 of them and met with Capital One to discuss the remaining
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`documents one day after completing its review. Pls.’ Reply 2. And though the parties were able
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`to winnow the dispute to only 130 emails, Capital One filed its request to file a Motion to
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`Compel Production of the remaining emails the very next day. Id. at 3. As a result, Intellectual
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`Ventures argues that it had no reasonable opportunity to produce affidavits supporting its
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`assertion of privilege as to the more manageable number of emails. Id.
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`Capital One contends that Intellectual Ventures could have provided affidavits in support
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`of its continued assertions of privilege between Capital One’s August 5 request for permission to
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`file a Motion to Compel and the August 19 status conference during which I ruled in Capital
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`One’s favor. Defs.’ Opp’n 2–3. Intellectual Ventures answers that it had no obligation to
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`provide affidavits during the two weeks prior to the August 19 status conference because Capital
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`One had failed to provide “notice of [the privilege log’s] deficiencies” and because once Capital
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`One sought to file a Motion to Compel, “[t]he Intellectual Ventures companies were required to
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`Case 8:14-cv-00111-PWG Document 530 Filed 10/11/16 Page 5 of 9
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`respond, rather than prepare affidavits.” Pls.’ Reply 3 (citation omitted). Intellectual Ventures
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`also continues to question the utility of affidavits and insists that “[a]n in camera review [of the
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`disputed documents] is the only tool available to resolve the parties’ factual dispute.” Pls.’
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`Mem. 1.
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` As I discussed with the parties during the June 30 status conference, the party objecting
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`to the production of discovery on the basis that it is beyond the scope of Fed. R. Civ. P. 26(b)(1)
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`due to privilege bears the burden of proving the applicability of privileges. United States v.
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`Cohn, 303 F. Supp. 2d 672, 679 (D. Md. 2003). The Federal Rules of Civil Procedure require
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`the party asserting a privilege to “describe the nature of the documents . . . in a manner that,
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`without revealing information itself privileged or protected, will enable other parties to assess the
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`claim.” Fed. R. Civ. P. 26(b)(5)(A)(ii). The Discovery Order I issued in this case mandates
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`“compliance with the Discovery Guidelines for the United States District Court for the District of
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`Maryland.” ECF No. 130-1. These Guidelines specify that when the party requesting discovery
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`objects to the assertion of a privilege, the party from whom discovery is sought must “provide
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`sufficient factual information, including by affidavit, to establish the factual basis for each claim
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`of privilege or protection that has been claimed.” D. Md. Loc. R., App’x A, Guideline 10(d)(iv)
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`(emphasis added). Failure to do so “result[s] in waiver of any privilege / protection that has been
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`claimed.” Id.
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`As I also indicated, these principles are further reflected in Neuberger Berman Billman
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`Real Estate Income Trust v. Lola Trust No. 1B, 230 F.R.D. 398 (D. Md. 2005). In that case, the
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`Court noted that “[i]t is incumbent upon the proponent to specifically and factually support his
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`claim of privilege, usually by affidavit, to satisfy [its] burden, and an improperly asserted
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`privilege is the equivalent of no privilege at all.” 230 F.R.D. at 409–10 (quoting Byrnes v. Jetnet
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`Case 8:14-cv-00111-PWG Document 530 Filed 10/11/16 Page 6 of 9
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`Corp., 111 F.R.D. 68, 71 (M.D.N.C. 1986)) (emphasis added). Boilerplate objections in a
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`privilege log are insufficient. See id. at 410 (“The party withholding the document, of course,
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`must provide that context by way of evidence, not just argument.”).
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`Intellectual Ventures cannot credibly argue that it was “mistaken” about my expectations
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`or its obligations under the Federal Rules, Local Rules of this Court, Discovery Guidelines of
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`this Court, and my Discovery Order. See Pls.’ Mem. 3. After reviewing its documents with the
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`principles I emphasized in mind, Intellectual Ventures chose to stand on its privilege log as a
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`sufficient factual basis for Capital One and this Court to assess its assertions of attorney-client
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`privilege and work-product protection. Having realized that I do not find the vast majority of its
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`privilege-log entries sufficiently informative, Intellectual Ventures now seeks a “second bite at
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`the apple,” which is not R. 54(d)’s purpose. Potter, 199 F.R.D. at 552–53 (quoting Shields, 120
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`F.R.D. at 126).
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`Intellectual Ventures also had ample notice of its privilege log’s deficiencies. Capital
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`One first raised concerns about the privilege log on May 13, 2016, noting that the Intellectual
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`Ventures failed to provide a “complete list of [communication] recipients” and to “clearly
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`designate . . . which of those recipients are attorneys or third parties.” Defs.’ May 13, 2016 Ltr.
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`1. After the parties attempted over the course of a month to reconcile their disagreements,
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`Capital One sought court intervention to resolve the discovery dispute, explaining that “the
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`privilege log indicates [that the withheld communications] relate to business, not legal, advice.”
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`Defs.’ June 20, 2016 Ltr. 1. And at the June 30 status conference call, I emphasized that
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`Intellectual Ventures bore the burden of providing a sufficient factual basis for Capital One and
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`the Court to distinguish between communications for the purposes of obtaining legal advice and
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`Case 8:14-cv-00111-PWG Document 530 Filed 10/11/16 Page 7 of 9
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`those conducted for business purposes. June 30, 2016 Status Conference Tr. 9:2–10:14, 13:4–
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`14:1.
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`As I discussed with the parties at the June 30 status conference, this District’s Discovery
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`Guidelines and case law identify affidavits as the primary means of establishing a factual basis
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`for the assertion of privileges. Id. 3:12–4:24, 8:2–14:18. Capital One is correct that Intellectual
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`Ventures could have provided affidavits in the two weeks prior to the August 19 status
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`conference. Intellectual Ventures seems to imply that Capital One’s request for permission to
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`file a Motion to Compel triggered a duty to respond to the filing that somehow either
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`extinguished its burden to provide a factual basis supporting its privilege claims or shifted the
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`burden of production to Capital One. See Pls.’ Reply 3. But responding to Capital One’s filing
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`and buttressing the factual foundation for the assertion of privilege was not an either-or
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`proposition. Intellectual Ventures could and should have both defended the adequacy of its
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`privilege log in a responsive filing—which it largely failed to do—and also continued to bolster
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`the factual basis either by affidavit—which the Guidelines and case law highlighted and I
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`personally underscored as the preferred mechanism—or, alternatively, by providing more
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`fulsome explanations in its privilege log. It elected none of the above. Instead, Intellectual
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`Ventures chided Capital One for its “unwillingness to accept the fact that the Intellectual
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`Ventures companies understand the difference between ‘business’ and ‘legal’ matters.” Pls.’
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`Aug. 11, 2016 Ltr. 2, ECF No. 502. Intellectual Ventures missed the point. It was Intellectual
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`Ventures’s burden to provide a factual basis to support its privilege claims, not Capital One’s
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`burden to establish the absence of a factual basis. Neither Capital One nor the Court need
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`“accept” Intellectual Ventures’s ipse dixit that it “understand[s] the difference between
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`Case 8:14-cv-00111-PWG Document 530 Filed 10/11/16 Page 8 of 9
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`‘business’ and ‘legal’ matters, and ha[s] acted in good faith in preparing and reviewing the
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`privilege log.” See id.
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`Although Intellectual Ventures continues to argue that its “privilege log descriptions
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`provide sufficient factual information to establish each element of the attorney-client privilege,”
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`Pls.’ Reply 4, this position is directly contrary to my ruling that the privilege log was insufficient
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`as to thirty-five of thirty-seven entries. Aug. 19, 2016 Status Conference Tr. 30:5–10, ECF No.
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`507 (“[W]hen I looked at [the privilege log] . . . I asked myself if I looked at what that cell said,
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`would I have enough information to be able to decide whether the work product privilege or
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`attorney/client privilege had been properly invoked. And in most cases, the answer was no. And
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`that is why the affidavit was required.”). Intellectual Ventures neither claims nor provides any
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`evidence to suggest that that ruling was manifestly erroneous. See Potter, 199 F.R.D. at 552 n.1.
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`As Intellectual Ventures suggests, it is possible that affidavits or a more fulsome privilege
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`log would not have enabled Capital One or the Court to divine a clear line distinguishing
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`business and legal communications. See Pls.’ Mem. 1; Pls.’ Reply 4. Had Intellectual Ventures
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`satisfied its burden to provide a factual basis in support of its privilege claims, perhaps in camera
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`review would have been necessary to resolve the matter. It did not, it is not. Intellectual
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`Ventures’s Motion for Reconsideration is denied.
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`ORDER
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`Accordingly, for the reasons stated in this Memorandum Opinion and Order, it is this 11th
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`day of October, 2016, hereby ORDERED that
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`Intellectual Ventures’s Motion for Reconsideration, ECF No. 511, IS DENIED.
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`Case 8:14-cv-00111-PWG Document 530 Filed 10/11/16 Page 9 of 9
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`/S/
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`Paul W. Grimm
`United States District Judge
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`jlb
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`9
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