ALJ Gildea Grants Motion to Compel
ALJ Gildea granted O2 Micro’s motion to compel re-production of a document “clawed back” by Monolithic Power Systems, Inc. in Inv. No. 337-TA-666, In the Matter of Certain Cold Cathode Fluorescent Lamp (“CCFL”) Inverter Circuits and Products Containing Same. ALJ Gildea, citing Federal Circuit precedent, reiterated the legal principle that “the attorney client privilege evaporates upon any voluntary disclosure of confidential information to a third party and that it is irrelevant whether the disclosure was inadvertent” (internal quotations omitted). The ALJ went on to find, assuming the document at issue was privileged, privilege was waived by MPS’s production of the document in two separate lawsuits. MPS’s failure to use adequate procedures to prevent disclosure of protected documents was apparent through its apparent sole reliance upon a “clawback provision” to protect privileged documents.
ALJ Gildea, however, stopped short of taking a position on whether parties were free to enter into “claw-back” agreements, stating only that where parties enter into such stipulations “they are responsible for resolving disputes relating to inadvertent production on their own” and where such a resolution is not reached by the parties, “it is the Administrative Law Judge’s view that a claw-back agreement may not shield the inadvertent production of an attorney-client privileged document to an adversary absent some showing that a party used a ‘reasonable effort’ to protect the confidences it contains. (PDF)
