United States District Court, N.D. Illinois, Eastern Division
MOTOROLA SOLUTIONS, INC. Plaintiff,
HYTERA COMMUNICATIONS CORP, et al, Defendants.
MEMORANDUM OPINION AND ORDER
JEFFREY COLE MAGISTRATE JUDGE.
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
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
“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
“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.
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 ...