Transamerica Computer Company, Inc., and v. International Business MacHines Corporation, And

On this interlocutory appeal brought pursuant to 28 U.S.C. § 1292 (b) we are required to address the narrow issue of whether defendant-appellee International Business Machines Corporation (“IBM”), by virtue of its inadvertent production of certain documents in accelerated discovery proceedings in a prior unrelated antitrust lawsuit in which it was a defendant, has waived its right to claim here that those documents are privileged and therefore not discoverable by plaintiff-appellant Transamerica Computer Company, Inc. (“TCC”). The district court below held that under the circumstances in that prior antitrust case there had been no waiver by IBM. We affirm.

On October 5, 1978 TCC commenced the present private antitrust action against IBM by filing a complaint in the United States District Court for the Northern District of California. Pursuant to an order of the Judicial Panel on Multidistrict Litigation, TCC’s antitrust suit was consolidated with six other similar suits which had been instituted against IBM. As part of its pretrial discovery, TCC requested that IBM produce numerous documents, and these documents included a group which the parties have designated, and which have…

concurring:

If information protected by the attorney-client privilege is disclosed by compulsion, or by inadvertence even with the exercise of due care, difficult questions arise as to whether or not the privilege remains. Discussion of the subject has not been extensive, although language in some of the cases would indicate that in either circumstance the privilege would remain. United States v. Grammer, 513 F.2d 673, 676 (9th Cir. 1975); United States v. Gurtner, 474 F.2d 297, 299 (9th Cir. 1973); In re Horowitz, 482 F.2d 72, 81-82 (2d Cir.), cert. denied, 414 U.S. 867 , 94 S.Ct. 64 , 38 L.Ed.2d 86 (1973); see 8 Wigmore, Evidence § 2326 (McNaughton rev. 1961). I agree with the court that in the special circumstances of the instant ease there was no waiver of the privilege, and I concur in the judgment.

573 F.2d 646 1978-1 Trade Cases 62,031 TRANSAMERICA COMPUTER COMPANY, INC., Plaintiff and Appellant, v. INTERNATIONAL BUSINESS MACHINES CORPORATION, Defendant and Appellee. No. 76-2789. United States Court of Appeals, Ninth Circuit. April 20, 1978 Richard J. Lucas (argued), of Orrick, Herrington, Rowley & Sutcliffe, San Francisco, Cal., for plaintiff and appellant. Charles M. Waygood (argued), of Olwine, Connelly, Chase, O'Donnell & Weyher, New York City, for defendant and appellee. Appeal from the United States District Court for the Northern District of California. Before WATERMAN, * CARTER and KENNEDY, Circuit Judges. WATERMAN, Circuit Judge: 1 On this interlocutory appeal brought pursuant to 28 U.S.C. § 1292 (b) we are required to address the narrow issue of whether defendant-appellee International Business Machines Corporation ("IBM"), by virtue of its inadvertent production of certain documents in accelerated discovery proceedings in a prior unrelated antitrust lawsuit in which it was a defendant, has waived its right to claim here that those documents are privileged and therefore not discoverable by plaintiff-appellant Transamerica Computer Company, Inc.…