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Robocast, Inc. v Apple, Inc., C.A. No. 11-235-RGA (D. Del. Apr. 17, 2013)

Robocast, Inc. v Apple, Inc., C.A. No. 11-235-RGA (D. Del. Apr. 17, 2013)

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10/10/2013

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ROBOCAST, INC.,Plaintiff,
v.
APPLE, INC.,Defendant.IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF DELAWAREC.A. No. 11-235-RGA
ORDER
This order is in regard to a discovery dispute. The issue is whether Robocast mustproduce its communications with a Canadian attorney, formerly under its employ, who Robocastasserts was practicing law without a license in the state
ofNew
York. The Canadian attorney inquestion is Michael Pozner, who is Robocast's former "Director
of
Business Development."(D.I. 176, Exh. G). Robocast argues that Mr. Pozner was employed as "General Counsel" andthus his communications are subject to the attorney-client privilege. Apple disagrees, arguingthat Mr. Pozner's role with Robocast was in a business rather than legal capacity, and in anyevent
he
was not qualified to render legal advice under
New
York law.The Court agrees with Apple. This is a patent case, so the question
of
attorney-clientprivilege is governed by federal common law. Fed.
R.
Evid. 501. The attorney-client privilegeprotects the confidentiality
of
communications between attorney and client made for the purpose
of
obtaining legal advice.
Genentech,
Inc.
v.
US. Int'l Trade Comm'n,
122 F.3d 1409, 1415 (Fed.Cir. 1997). The party that seeks privilege bears the burden
of
showing its applicability.
International Paper Company
v.
Fibreboard Corp.,
63
F.R.D. 88, 94 (D. Del. 1974). Robocast
1
I
l
f
!
l
t
f
l
Case 1:11-cv-00235-RGA Document 220 Filed 04/17/13 Page 1 of 3 PageID #: 8017
 
fails to make a showing that Mr. Pozner was an individual authorized to give legal advice. Mr.Pozner may be a member
of
the bar in Canada, but he has never been a member
of
the bar inNew York, where he was employed by Robocast. New York has a licensing mechanism thatallows a foreign attorney to render legal advice as a "legal consultant." N.Y. C.L.S. Ct.
of
App.§ 521.1. This would have allowed Mr. Pozner to enjoy "the rights and obligation
of
a member
of
the bar
of
[New York] with respect to
...
attorney-client privilege, work-product privilege andsimilar professional privileges."
!d.
at 521.1 (b )(2). There is zero indication, however, that Mr.Pozner applied for or received the legal consultant license. Thus, any advice Mr. Pozner offered
to
Robocast was not legal advice as defined by the New York State Bar.
It
therefore cannot beassumed
to
be privileged. In fact, the very argument that Mr. Pozner offered legal advice toRobocast without the
New
York State
Bar's
approval necessarily asserts he was guilty
of
practicing law without a license, which is a criminal misdemeanor in New York.
1
N.Y. JUD.
LAW§§
478,485.Robocast's reliance on
Renfield
v.
E.
Remy Martin
&
Co.,
98 F.R.D. 442 (D. Del. 1982)is not persuasive. That case involved a district court's recognition that attorney-client privilegeprotected the legal work
of
French attorneys operating in accordance with French laws.
!d.
at444. Here, Robocast asks the Court to apply the privilege to purported legal work done by aforeign attorney in the United States who would have been necessarily operating outside thelegal bounds
of
state law.
Renfield
is thus inapplicable. Robocast also indicates that it should beprotected by the attorney-client privilege because
of
a supposed "reasonable
belief'
that an
1
Mr.
Pozner's employment title of"Director
of
Business Development" suggests his actual duties were on thebusiness side. The Court has not conducted an
in camera
review
of
the disputed documents to determine the actualcharacter
of
the work he performed. The Court
in
no way means to suggest that there
is
any factual basis to believe
he
committed a crime.
2
Case 1:11-cv-00235-RGA Document 220 Filed 04/17/13 Page 2 of 3 PageID #: 8018

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