McCormick-Morgan, Inc. v. Teledyne Industries, Inc.

ORDER RE MOTION TO RECONSIDER DISCOVERY ORDER RE PRIVILEGE

I. Introduction

This motion came on for hearing before this court pursuant to Local Rule 410-2(a) providing for review of nondispositive pretrial matters originally determined by a magistrate. In this case, McCormick-Morgan, Inc. (“MMI”) seeks a declaratory judgment finding a patent for air-conditioning aircraft invalid. Defendant Teledyne Industries, Inc. (“Teledyne”) has counterclaimed for infringement against MMI and several of its directors and officers. MMI seeks to assert, as a defense against willful infringement charges, that it acted in reliance on advice of counsel. Teledyne claims that MMI, both by asserting this defense and by making an explicit waiver, has waived the attorney-client privilege as to communications between counsel and MMI with respect to infringement, validity and enforceability of the patent-in-suit.

II. Background

On February 11, 1991, Magistrate Judge Wayne Brazil, after hearing argument on the issue of waiver of the attorney-client privilege, 134 F.R.D. 275 found that, first, from the period up to and including April 16, 1990, MMI had waived the attorney-client privilege as to the…