In Apple Inc. v. Samsung Elec. Co. Ltd., No. 11-CV-01846, 2015 WL 3863249 (N.D. Cal. June 19, 2015), the court denied a motion to set aside a magistrate judge’s order and decision that held that Samsung waived privilege when it and its counsel submitted privileged documents to the court in response to an order to show cause why sanctions were not warranted as a result of counsel’s disclosure to Samsung of an “insufficiently redacted” expert report, which revealed confidential terms of an Apple-Nokia license.  The court found that 90 Samsung employees were given access to the document on an FTP site and thereafter more than 200 unauthorized individuals received the confidential license terms in violation of the court’s protective order.  The court granted Apple’s and Nokia’s requests for additional discovery, and Samsung asserted privilege and work product protection as to numerous documents relating to the disclosures.  The court ordered Samsung to provide unredacted documents to the court for in camera review.  Following a review of the documents, the court determined that “an outline does emerge suggesting sanctions should issue,” based on protective order violations by Samsung and its counsel, and it ordered Samsung to file a brief to show cause why sanctions should not issue.  The court also expressed doubt that Samsung had met its burden of demonstrating that a few of the documents produced for in camera review were privileged.  Prior to responding to the show cause order, Samsung submitted an ex parte in camera brief in support of its claims that the disputed documents were privileged, supported by extensive declarations.  Ultimately Apple moved to compel disclosure of some of the documents that Samsung had cited in defending against sanctions, and Nokia sought all documents submitted by Samsung for in camera review.  The magistrate judge found that, by placing the contents of the documents at issue, distributing them and disclosing what they say and do not say in sanctions proceedings, Samsung waived privilege.  On a motion to set aside the magistrate judge’s order, the district court found that the magistrate judge’s order was not clearly erroneous.  Rather, by arguing that there was “no evidence” to suggest that the breach of the protective order was intentional, and by relying on privileged documents to support that claim, Samsung put the privileged documents at issue.  Thus, the district court found that neither Nokia nor Apple could evaluate Samsung’s assertions without access to the documents, and thus there was a “vital need” to pierce the privilege in order to provide due process to Nokia and Apple.