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Motorola Solutions, Inc. v. Hytera Communications Corp.

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

July 2, 2019

MOTOROLA SOLUTIONS, INC. Plaintiff,
v.
HYTERA COMMUNICATIONS CORP, et al, Defendants.

          MEMORANDUM OPINION AND ORDER

          JEFFREY COLE MAGISTRATE JUDGE.

         INTRODUCTION

         Recently, counsel for the parties called me regarding Motorola's instruction to one of its employees, a Mr. Wiatrowski, not to answer certain deposition questions posed by Hytera's counsel on the grounds that the inquiry was prohibited by the attorney-client privilege. Essentially, the questions sought to ascertain the date on which the deponent first spoke to Motorola's lawyer regarding his suspicions that intellectual property may or had been wrongfully taken from Motorola and transferred to Hytera. I asked that they simultaneously file briefs on the issue of no more than five pages. They have done so. [Dkt. ## 561, 569]. What Justice Frankfurter said in an unrelated context, “this is a horse soon curried, ” Olberding v. Illinois Cent. R. Co., 346 U.S. 338, 340 (1953), applies equally here.[1]

         ARGUMENT

         A

         At the outset of his examination, Mr. Wiatrowski, an employee of Motorola, was asked when he “first communicated with Motorola's legal department with respect to potential intellectual property issues for allegations or suspicions about Hytera, just the date, not the substance of the communications.” [Dkt. #569, Ex. 1, Tr. at 193:2-6]. The questioning had obvious relevance as the statute of limitations has been a significant issue in this case from the beginning. [See, e.g., Dkt. #58 and #163, First Affirmative Defense]. Through multiple rounds of summary judgment motions, it still is not fully resolved. [Dkt. #435]. Motorola's counsel objected to the questioning, asserting the privilege and instructing Mr. Wiatrowski not to answer:

“When were those first discussions with counsel with respect to any suspicions regarding Hytera and Motorola's intellectual property?” Dep. at 194:24-195:2.
“When were your first communications with counsel with respect to any suspicions of intellectual property wrong of any nature by Hytera?” Id. at 197:14-198:5.
“[W]hen were your first communications with counsel regarding suspicions of intellectual property being taken or anything suspected of Hytera?” Id. at 199:17-20.
“When was your first interaction with legal regarding suspicions of intellectual property malfeasance?” Id. at 200:18-20.
“[W]hen was your first conversation with legal about Hytera?” Id. at 202:22-23.

         Motorola's counsel claimed that any answer by the witness - even answering “yes or no ... [would] reveal whether there was a communication and... would reveal the topic of the communication.” Id. at 202:1-11. See also Id. at 193:7-11. Hytera's further attempts were met with the same objections and instructions to the witness not to answer. Somewhat later, this occurred:

Q When was your first interaction with legal regarding suspicions of intellectual property malfeasance?
MR. BOLOORI: Objection; form, scope -- again, the question asks for the topic of conversation with legal or the subject matter of the conversation with legal.... [I]t's phrased as asking for dates, the question builds in a topic. So ...

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