THOMAS E. MORRIS, District Judge.
This case comes before the Court on Defendant/Counterclaim Plaintiff's ("Qualcomm") Motion to Compel (Doc. #94, Motion to Compel), wherein Qualcomm requests the Court compel the production by Counterclaim Defendant, Sterne, Kessler, Goldstein & Fox, PLLC, ("SKGF") of certain documents and answers to interrogatories. SKGF opposes this motion, asserting that the discovery sought by Qualcomm is barred by the attorney-client privilege (Doc. #101, Response, at 11).
Qualcomm seeks the compelled production of documents in response to Requests for Production Nos. 37 and 40, as well as answers to Interrogatories Nos. 1-3. Motion to Compel at 1. In substance, Qualcomm is seeking: "all billing records or internal time records," of SKGF relevant to the current action; "all documents and communications sufficient to show the [SKGF] billing charge number ... relating to this action and all time entries recorded under that charge;" "the identity of every [SKGF] attorney who has communicated ... with any attorney from [certain law firms] concerning this action and/or the Patents-in-suit;" the total hours—billed or otherwise—expended by SKGF attorneys as well as all analysis, presentations, pleadings, etc. which inured to the benefit of Plaintiff/Counterclaim Defendant, Parker Vision ("Parker Vision"); and identification of any members of SKGF who have held stock ownership in Parker Vision since January 1, 1997. See Motion to Compel at 2-5. SKGF has thus far refused to satisfy Qualcomm's requests, asserting that the requested items are privileged. See Response at 11. SKGF sees these requests as a veiled attempt to pierce that privilege and gain valuable information regarding the relationship between SKGF and Parker Vision. See id. at 12. As in many discovery disputes, both sides have cited to persuasive authority for their respective positions.
Motions to compel disclosures and other discovery under Rule 37(a) are committed to the sound discretion of the trial court. Commercial Union Insurance Co. v. Westrope, 730 F.2d 729, 731 (11
"The attorney-client privilege applies to `confidential communications between an attorney and his client relating to a legal matter for which the client has sought professional advice.'" Miccosukee Tribe of Indians of Florida v. United States, 516 F.3d 1235, 1262 (11
In addition to the attorney-client privilege, there exists the work product privilege which exists to protect the work of an attorney from being encroached upon by opposing counsel. Hickman v. Taylor, 329 U.S. 495 (1947); Palmer v. Westfield Ins. Co., No. 5:05-CV-10GRJ, 2006 WL 2612168 (M.D. Fla. Jun. 30, 2006). At its base, the work product privilege exists to protect the "mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation." Palmer, 2006 WL 2612168 at *3 (quoting Fed. R. Civ. P. 26(b)(3)); see also Hickman, 329 U.S. at 509-12 ("Not even the most liberal of discovery theories can justify unwarranted inquiries into the files and the mental impressions of an attorney.").
Upon consideration of the instant motion, the response, and the arguments of the parties, the Court finds Qualcomm's Motion to Compel is due to be
On the other hand, the discovery of whether any attorney worked on Qualcomm and Parker Vision matters at the same time is certainly relevant to Qualcomm's counterclaims of breach of contract and breaches of fiduciary duty. The January 12, 1999 "Waiver of Conflict" letter contains a "firewall" provision so that attorneys who had represented, or were expected to represent, Qualcomm would not have access to the confidential information of Parker Vision (Doc. #95, Declaration of David Greenwald, at Exh. 1). The April 15, 2010 "Undertaking Legal Representation" letter contains language that states the consent to waiver of conflict as set forth in the letter, "does not extend to concurrent representation of clients adverse to Qualcomm in a litigation concurrent with the firm's representation of Qualcomm." See Declaration of David Greenwald, Exh. 4. Thus, the Court finds the compelled production of SKGF records detailing only the attorney names and their dates of service for Parker Vision is information that is not privileged and is pertinent to the counterclaims raised in this litigation.
The parties are admonished to proceed with caution in this discovery and to be mindful of the mandates of Local Rule 2.04(h), which requires attorneys to "conduct themselves with civility and in a spirit of cooperation in order to reduce unnecessary cost and delay." Should the ordered discovery produce information that indicates further inquiry in this area may lead to the discovery of admissible evidence, the parties should first attempt to resolve the matter before coming to the Court.
Accordingly, SKGF is directed to produce the billing information as set forth herein. In so producing, SKGF is required only to produce records of the attorneys and dates of service for Parker Vision for the time periods specified. SKGF has