On March 25, 2015, ALJ Dee Lord issued the public version of Order No. 21 (dated March 10, 2015) in Certain Communications or Computing Devices and Components Thereof (Inv. No. 337-TA-925).

By way of background, this investigation is based on a July 16, 2014 complaint filed by Enterprise Systems Technologies S.a.r.l. ("Enterprise") alleging violation of Section 337 in the importation into the U.S. and sale of certain communications or computing devices and components thereof that infringe one or more claims of U.S. Patent Nos. 7,454,201; 6,594,366; 6,691,302; and 5,870,610.  See our July 17, 2014 and August 18, 2014 posts for more details on the complaint and Notice of Investigation, respectively. 

According to the Order, Respondent Apple Inc. ("Apple") filed a motion to compel Enterprise to produce certain documents withheld on the basis of privilege.  Apple sought meeting minutes from meetings of Enterprise's Board of Managers that were described in the deposition of Paul Coryea, Enterprise's director of licensing and patent portfolio management.  While Apple produced some minutes, it refused to produce additional minutes on the basis of attorney-client privilege.  Enterprise did, however, produce a supplementary privilege log identifying, inter alia, certain documents relevant to this motion.

Apple contended that the disputed documents were within the scope of document requests served on Enterprise at the beginning of the investigation.  Enterprise and the Commission Investigative Staff ("OUII") identified a discovery stipulation relevant to the present motion that was agreed to by the parties on September 22, 2014 and states that privileged materials "dated, created, or communicated on or after June 17, 2014, do not need to be included on any privilege log."

ALJ Lord agreed with Enterprise and OUII that Apple was precluded from moving to compel production of privileged documents created on or after June 17, 2014.  Apple's motion was therefore denied as to the information sought that was created after the stipulated cutoff date for logging privileged documents.  ALJ Lord found, however, that there were meeting minutes that were not covered by the parties' stipulation and that were likely to be relevant and contain at least some content that is not privileged.  While ALJ Lord noted that the minutes may or may not include substantive evidence relevant to standing or the public interest, as Apple contended, ALJ Lord nevertheless found that the minutes were likely to provide context for other minutes that had been produced and would at least complete the timeline of Enterprise's business activities up until the time of the complaint in this investigation.  Accordingly, ALJ Lord ordered Enterprise to produce the minutes in their entirety.

Regarding privilege, ALJ Lord agreed with OUII that it was unlikely the minutes were privileged as the date, location, list of attendees, and agenda are unlikely to be privileged, and some portion of the content may reflect business topics as opposed to legal advice.  Accordingly, ALJ Lord ordered Enterprise to review the minutes and produce a redacted version where only the privileged portions of the minutes are withheld.  ALJ Lord also ordered Enterprise to produce an unredacted version of a document that was produced with financial terms redacted because third-party confidentiality is not a sufficient basis to redact or withhold license agreements.