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Dyson, Inc. v. Sharkninja Operating LLC

United States District Court, N.D. Illinois, Eastern Division

April 5, 2017

DYSON, INC. and DYSON TECHNOLOGY LIMITED, Plaintiffs,
v.
SHARKNINJA OPERATING LLC and SHARKNINJA SALES COMPANY Defendants.

          ORDER

          Susan E. Cox Magistrate Judge

         The Court held a discovery conference on January 11, 2017.[1] During that conference, Dyson claimed that SharkNinja had over-designated certain communications and documents as privileged. The Court ordered that Dyson select a sample of 5% of the documents and communications listed as privileged on SharkNinja's privilege logs, and that SharkNinja provide those documents for in camera inspection. If, after review, the Court believed that there was sufficient over-designation, it would appoint a special master to review all the documents on the privilege logs. On January 20, 2017, Dyson provided the Court with a sample it sought to have this Court review. On February 10, 2017, SharkNinja provided documents from its Second Privilege Log for in camera review, but refused to provide documents from its First and Third Privilege Logs; on March 24, 2017, the Court ordered that such documents be produced, and SharkNinja complied with that order. The Court has now reviewed the documents, and orders that certain documents be produced, as described herein. The Court further orders that SharkNinja perform additional review of its Weekly Update emails and to produce those documents as discussed below. The Court does not believe that a special master will be necessary in this case.

         I. DISCUSSION

         “The essential elements for the creation and application of the attorney-client privilege are well-established: ‘(1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) except the protection be waived.'” Roth v. Aon Corp., 254 F.R.D. 538, 540 (N.D. Ill. 2009) (quoting United States v. White, 950 F.2d 426, 430 (7th Cir. 1991)). However, copying an attorney on a communication “does not automatically transform the contents of that message into a privileged request for legal advice, ” and the privilege will only apply where “'the predominant purpose of the communication [was] to render or solicit legal advice.'” Kleen Prods LLC v. Int'l Paper, 2014 WL 647558, at *1 (N.D. Ill. Nov. 12, 2014) (quoting Swift Spindrift, Ltd. v. Alvada Ins., Co., No. 09 Civ. 9342(AJN)(FM), 2013 WL 3815970, at *8 (S.D.N.Y. July 24, 2013)) (alteration in original).

         A. First Revised Privilege Log

         Dyson identified 8 communications from SharkNinja's First Revised Privilege Log for in camera review. The Court has reviewed the sample documents from SharkNinja's privilege log and holds that the following privilege log entries contain or discuss legal advice and were appropriately designated as privileged: 78, 116, 120, 160, and 242. SharkNinja stated that it “previously produced a complete unredacted version of the document duplicatively described at Entry Nos. 169 and 170 on SharkNinja's first privilege log.” (Dkt. 359 at 2.) The Court assumes that this means that SharkNinja intends to produce those documents, and hereby orders it to do so.

         Log Number 313 does not contain privileged information and should be produced. This document is an email attachment. SharkNinja provided the parent email to which this document was attached to allow the Court to understand the context of the attachment. The Court does not believe that the attachment contains privileged information. The body of the email states that the attachment is a “presentation for a general sketch overview of the various NEW concepts we are pursuing at this time.” (EP0155435.) The email copies two attorneys, but does not generally relate to legal issues. There is a section of the email that is appropriately redacted that discusses a review of the designs in the attachment with an attorney (Philip Mendes da Costa), but that is not sufficient to imbue the attachments with the attorney-client privilege. The attachments themselves were not sent for the purpose of seeking legal advice and there is nothing in the attachments that reflects any communications from an attorney. The Court does not believe that this document is privileged and orders that it be produced.

         B. Second Privilege Log

         Dyson identified 56 communications from SharkNinja's Second Privilege Log for in camera review. The Court has reviewed the sample documents from SharkNinja's privilege log and holds that the following privilege log entries contain or discuss legal advice and were appropriately designated as privileged: 187, 226, 418, 944, 950, 1019, 1020, 1021, 1022, 1121, 1142, 1225, 1241, 1299, 1390, 1400, 1401, 1499, 1609, 3588, 3632, 4039, 4042, 4045, 4047, 4078, and 4079.

         Log Entry 22 is not privileged and should be produced. There are no attorneys on this email chain, and the substance of the communication concerns technical testing of a stretch wire hose. SharkNinja claimed that this document was privileged because it was attached to a communication providing legal advice regarding vacuum design. However, “[a]ttachments which do not, by their content, fall within the realm of privilege cannot become privileged by merely attaching them to a privileged communication with the attorney.” Muro v. Target Corp., 2006 WL 3422181, at *5 (N.D. Ill. Nov. 28, 2006).

         Log Entry 1592 is not privileged and should be produced in an unredacted version. The section of the email chain that is redacted copies an attorney (Jennifer McCabe), but does not discuss any legal issues. The subject matter being discussed relates to the performance of certain SharkNinja products, and no legal issues are mentioned at all.

         Log Entry 1943 is not privileged and should be produced. The document copies an attorney (Jennifer McCabe), but does not discuss any legal issues. It appears to be an email copying a powerpoint document and soliciting review from the Steam Products team, which does not include any attorneys. There are no legal issues mentioned in the body of the email, and McCabe's inclusion on the email does not appear to be for the purpose of soliciting any legal advice.

         Log Entry 1953 only contains a small amount of privileged information and should be produced in a redacted version. The document copies an attorney (John Yang), but the primary purpose of the document is to discuss the progress of certain vacuum projects SharkNinja was undertaking. There is one paragraph in the April 26, 2012 email from Wayne Conrad that begins “we are getting our details together[;]” this paragraph is relaying legal advice and may be redacted. The remainder of the email must be produced.

         Log Entry 2480 is not privileged and should be produced in an unredacted version. The section of the email chain that is redacted copies an attorney (Jennifer McCabe), but does not discuss any legal issues. The email seeks “initial reactions” for what appears to be a thirty second video (likely an advertisement), but it does not request legal advice from McCabe ...


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