In MediaTek Inc. v. Freescale Semiconductor, Inc., No. 11-cv-05341 (N.D. Cal. Oct. 10, 2013), the court held that a consultant’s report and drafts of the report were not privileged where there was insufficient evidence that the report was prepared for a legal purpose.  In this patent infringement case, defendant moved to compel plaintiff to produce a consultant’s report that plaintiff had obtained prior to purchasing the patents at issue.  Plaintiff supported its assertion of privilege with an affidavit submitted by a non-lawyer, Yang, who was the plaintiff’s Deputy Manager of its Intellectual Property Division.  Yang stated that, at the direction of plaintiff’s general counsel, Yang engaged a consultant to prepare a technical assessment of the patents at issue to assist counsel in providing legal advice regarding possible acquisition of the patents.  The consultant entered into a confidentiality agreement with plaintiff.  The court held that plaintiff failed to demonstrate that the report was prepared for a legal purpose rather than for a business purpose.  The court found that the report was never transmitted to the general counsel or any other attorney and it made no reference that suggested that the report was intended to assist counsel.  In addition, the confidentiality agreement did not include any language that indicated that the report was intended to be privileged or was being provided to assist counsel.  Under these circumstances, the report was created for a business purpose and was discoverable.