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`Exhibit 2129
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`Exhibit 2 129
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`Case4:14-mc-80112-JSW Document64 Filed02/23/15 Page1 of 9
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`UNITED STATES DISTRICT COURT
`Northern District of California
`San Francisco Division
`No. C 14-80112 JSW (LB)
`CALLWAVE COMMUNICATIONS, LLC,
`ORDER REGARDING CALLWAVE
`Petitioner,
`AND LOCATION LABS’ JOINT
`DISCOVERY DISPUTE LETTER
`DATED FEBRUARY 6, 2015
`[Re: ECF No. 63]
`
`v.
`WAVEMARKET, INC. D/B/A LOCATION
`LABS,
`
`Respondent.
`_____________________________________/
`INTRODUCTION
`In this miscellaneous action, Petitioner Callwave Communications, LLC (“Callwave”) originally
`asked this court to compel Respondent Wavemarket, Inc. d/b/a Location Labs (“Location Labs”), a
`non-party to underlying litigation in the United States District Court for the District of Delaware,1 to
`comply with Callwave’s subpoena for certain documents. (See Petition, ECF No. 1.2) After many
`months and several discovery disputes, production has begun. Now, however, the parties ask the
`
`1 The subpoena was issued in Callwave Communications LLC v. AT&T Inc., AT&T Mobility,
`LLC, and Google, Inc., No. 12-cv-1701 (D. Del.). In its motion, Callwave states that it is the
`plaintiff in five related patent infringement cases being heard in the District of Delaware and that
`Location Labs possesses materials that are relevant to at least two of them. See Petition, ECF No. 1
`at 5, 7.
`
`2 Record citations are to documents in the Electronic Case File (“ECF”); pinpoint citations
`are to the ECF-generated page numbers at the top of the documents.
`
`ORDER
`C 14-80112 JSW (LB)
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`For the Northern District of California
`For the Northern District of California
`UNITED STATES DISTRICT COURT
`UNITED STATES DISTRICT COURT
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`Case4:14-mc-80112-JSW Document64 Filed02/23/15 Page2 of 9
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`court determine whether Location Labs should be ordered to produce the six documents that it
`identified on the privilege log that it provided to Callwave on January 20, 2015. (2/6/2015 Joint
`Letter, ECF No. 63 at 1.) The court’s answer is “no.”
`STATEMENT
`This miscellaneous action relates to five patent infringement actions (the “Underlying
`Litigation”) that currently are pending in the United States District Court for the District of
`Delaware in which Callwave claims that one of its patents (U.S. Patent No. 6,771,970 (the “‘970
`Patent”) was infringed. (See 5/5/2014 Joint Letter, ECF No. 17 at 1.) According to Callwave,
`Location Labs provides some of the defendants to the Underlying Litigation with customized
`software for locating mobile devices, which Callwave says is the infringing functionality in the
`defendants’ products. (Id.) One of the defendants to the Underlying Litigation is AT&T.
`On January 20, 2015, Location Labs provided Callwave with a privilege log. (2/6/2015 Joint
`Letter, ECF No. 63 at 1-2 & Ex. D (privilege log).) It lists six documents. (Id., Ex. D.) For five of
`the documents, Location Labs asserts that the documents are protected from disclosure under the
`attorney work-product doctrine and the common interest doctrine. (Id., Ex. D.) For the sixth
`document, Location Labs asserts that it is protected from disclosure under the attorney work-product
`doctrine, the common interest doctrine, and the attorney-client privilege. (Id., Ex. D.) Callwave
`argues that Location Labs’s assertions are without merit. (See id. at 2-3.)
`ANALYSIS
`I. THE COURT APPLIES FEDERAL LAW TO THIS DISPUTE
`“Questions of privilege that arise in the course of the adjudication of federal rights are ‘governed
`by the principles of the common law as they may be interpreted by the courts of the United States in
`the light of reason and experience.’” United States v. Zolin, 491 U.S. 554, 562 (1989) (quoting
`Federal Rule of Evidence 501); see Heathman v. United States District Court, 503 F.2d 1032, 1034
`(9th Cir. 1974) (“[I]n federal question cases the clear weight of authority and logic supports
`reference to federal law on the issue of the existence and scope of an asserted privilege.”). Federal
`law applies to privilege-based discovery disputes involving federal claims, even if allied with by
`pendent state law claims. See, e.g., Pagano v. Oroville Hospital, 145 F.R.D. 683, 687 (E.D. Cal.
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`ORDER
`C 14-80112 JSW (LB)
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`2
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`For the Northern District of California
`UNITED STATES DISTRICT COURT
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`

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`Case4:14-mc-80112-JSW Document64 Filed02/23/15 Page3 of 9
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`1993); Martinez v. City of Stockton, 132 F.R.D. 677, 681-83 (E.D. Cal. 1990). Because this
`miscellaneous action is an outgrowth of the five federal law-based patent infringement actions
`pending in the District of Delaware, the court applies federal law when resolving the parties’
`dispute.
`II. THE SIXTH DOCUMENT IS NOT PROTECTED UNDER THE ATTORNEY-CLIENT
`PRIVILEGE
`Location Labs asserts that the sixth document is protected from disclosure under the attorney-
`client privilege. Location Labs describes the document on its privilege log as a chain of emails
`among AT&T’s outside counsel, AT&T’s in-house counsel, and Location Labs’s outside counsel
`regarding “indemnification/defense and issues related thereto.” (2/6/2015 Joint Letter, ECF No. 63,
`Ex. D.) AT&T’s outside counsel (Chad Rutkowski Jacqueline Lesser, and Michelle Miller) and
`AT&T’s in-house counsel (Brian Gaffney) are listed as the authors of the communications, and
`Location Labs’s outside counsel (Imran Khaliq, Mark Hogge, and Shailendra Maheshwari) are listed
`as the recipients of the communications. (Id., Ex. D.)
`Location Labs says in its section of the parties’ joint letter that the document is protected under
`the attorney-client privilege because it “involve[s] matter[s] confidentially disclosed between an
`attorney and client” and that Callwave “does not and cannot dispute this.” (Id. at 4.) This is not
`correct. In its section of the letter, Callwave clearly argues (albeit in a footnote) that the document is
`not privileged because there is no attorney-client relationship between AT&T and Location Labs’s
`counsel, or between AT&T’s counsel and Location Labs. (Id. at 2 n.1.)
`In any event, the court finds that Location Labs has not met its burden to show that the document
`is protected. United States v. Ruehle, 583 F.3d 600, 607 (9th Cir. 2009) (“[A] party asserting the
`attorney-client privilege has the burden of establishing the [existence of an attorney-client]
`relationship and the privileged nature of the communication.”) (quoting United States v. Bauer, 132
`F.3d 504, 507 (9th Cir. 1997)). “Because it impedes full and free discovery of the truth, the
`attorney-client privilege is strictly construed.” Id. (quoting United States v. Martin, 278 F.3d 988,
`999 (9th Cir. 2002)). An eight-part test determines whether information is covered by the
`attorney-client privilege:
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`ORDER
`C 14-80112 JSW (LB)
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`3
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`For the Northern District of California
`UNITED STATES DISTRICT COURT
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`Case4:14-mc-80112-JSW Document64 Filed02/23/15 Page4 of 9
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`(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) unless the protection be waived.
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`Id. (quoting In re Grand Jury Investigation, 974 F.2d 1068, 1071 n.2 (9th Cir. 1992)). “The party
`asserting the privilege bears the burden of proving each essential element.” Id. at 608 (citing United
`States v. Munoz, 233 F.3d 1117, 1128 (9th Cir.2000), superseded on other grounds as stated in
`United States v. Van Alstyne, 584 F.3d 803, 817 (9th Cir. 2009)).
`Under this standard, Location Labs’s simple statement that the document is protected under the
`attorney-client privilege because it “involve[s] matter[s] confidentially disclosed between an
`attorney and client” clearly is insufficient, and Callwave’s point about the lack of an attorney-client
`relationship is well-taken. Accordingly, the court finds that Location Labs did not establish that the
`sixth document listed on its privilege log is protected under the attorney-client privilege. Whether it
`is protected as attorney work product is discussed below.
`III. THE DOCUMENTS ARE SUBJECT TO THE ATTORNEY WORK-PRODUCT
`DOCTRINE
`Location Labs also asserts that all six of the documents listed on its privilege log—including the
`sixth document discussed above—are protected from disclosure under the attorney work-product
`doctrine. As the party asserting the privilege, Location Labs has the burden of establishing that it
`applies to these documents. See Skynet Elec. Co. Ltd. v. Flextronics Int’l, Ltd., No. C 12–06317
`WHA, 2013 WL 6623874, at *2 (N.D. Cal. Dec. 13, 2013) (“Where a party asserts work-product
`immunity over a piece of evidence, the proponent of the privilege bears the burden of establishing its
`applicability to the present circumstances.”) (citing P. & B. Marina, Ltd. v. Logrande, 136 F.R.D.
`50, 53-54 (E.D.N.Y. 1991)). The attorney work-product doctrine is incorporated into Federal Rule
`of Civil Procedure 26(b)(3)(A), which states: “Ordinarily, a party may not discover documents and
`tangible things that are prepared in anticipation of litigation or for trial by of for another party or its
`representative (including the other party’s attorney, consultant, surety, indemnitor, insurer, or
`agent).” See also In re Grand Jury Subpoena, 357 F.3d 900, 906 (9th Cir. 2004) (quoting Admiral
`Ins. Co. v. U.S. Dist. Court, 881 F.2d 1486, 1494 (9th Cir. 1989)). The plain language of Rule 26
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`ORDER
`C 14-80112 JSW (LB)
`
`4
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`For the Northern District of California
`UNITED STATES DISTRICT COURT
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`

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`Case4:14-mc-80112-JSW Document64 Filed02/23/15 Page5 of 9
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`limits the scope of the attorney work-product doctrine to documents and tangible things, not the
`underlying facts.
`The Ninth Circuit has adopted the “because of” standard for determining whether a document
`was prepared “in anticipation of litigation.” See In re Grand Jury Subpoena, 357 F.3d at 907. More
`specifically,
`a document should be deemed prepared “in anticipation of litigation” and thus
`eligible for work product protection under Rule 26(b)(3) if “in light of the nature of
`the document and the factual situation in the particular case, the document can be
`fairly said to have been prepared or obtained because of the prospect of litigation.” 8
`Charles Alan Wright, Arthur R. Miller, and Richard L. Marcus, FED. PRACTICE &
`PROC. § 2024 (2d ed. 1994). . . . The “because of” standard does not consider
`whether litigation was a primary or secondary motive behind the creation of a
`document. Rather, it considers the totality of the circumstances and affords
`protection when it can fairly be said that the “document was created because of
`anticipated litigation, and would not have been created in substantially similar form
`but for the prospect of that litigation[.]” [United States v. Adlman, 134 F.3d 1194,
`1195 (2d Cir. 1998)].
`
`Id. at 907-08. In making this “totality of the circumstances” inquiry, courts must look at whether the
`documents were created for dual purposes, e.g., both litigation and business purposes. “When there
`is a true independent purpose for creating a document, work product protection is less likely, but
`when two purposes are profoundly interconnected, the analysis is more complicated.” Id. at 908.
`But “[d]ocuments prepared in the ordinary course of business or that would have been created in
`essentially similar form irrespective of the litigation are not protectable as work product.” Arfa v.
`Zionist Org. of Am., CV 13–2942 ABC SS, 2014 WL 815496, at *4 (C.D. Cal. Mar. 3, 2014)
`(quoting Umpqua Bank v. First American Title Ins. Co., 2011 WL 997212, at *4 (E.D. Cal. Mar. 17,
`2011)).
`Callwave argues that Location Labs has not shown that the documents are protected under the
`attorney work-product doctrine because Locations Labs has not shown that “the documents contain
`the ‘mental impressions, conclusions, opinions, or legal theories of a party’s attorney.’” (2/6/2015
`Joint Letter, ECF No. 63 at 2 (quoting Fed. R. Civ. P. 26(b)(3)(B)). On the privilege log, Location
`Labs describes the documents as letters or emails between AT&T’s outside counsel and Location
`Labs’s outside counsel regarding “indemnification/defense and issues related thereto.” (Id., Ex. D.)
`And in its section of the parties’ joint letter, Location Labs says that “[a]ll of the documents are
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`ORDER
`C 14-80112 JSW (LB)
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`For the Northern District of California
`UNITED STATES DISTRICT COURT
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`Case4:14-mc-80112-JSW Document64 Filed02/23/15 Page6 of 9
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`subject to the work[-]product doctrine because they involve matters discussed between counsel for
`defense in on-going litigation.” (2/6/2015 Letter, ECF No. 63 at 4.) Although Location Labs did
`not state that the documents “were created in anticipation of” or “because of” the Underlying
`Litigation, the court believes that this point is implied in this context, where AT&T is a defendant to
`the Underlying Litigation and where Location Labs and AT&T apparently have agreed to
`indemnification in relation to it. The court finds that Location Labs has met its burden to show that
`the documents are subject to the attorney work-product doctrine. Whether Location Labs has
`waived the protection of the attorney work-product doctrine is discussed below.
`IV. UNDER THE COMMON INTEREST DOCTRINE, LOCATION LABS DID NOT
`WAIVE THE PROTECTIONS OF THE ATTORNEY WORK-PRODUCT DOCTRINE
`The parties focus most of their arguments on whether Location Labs waived the protection of the
`attorney work-product doctrine by sharing the documents with AT&T’s outside counsel. Location
`Labs argues that, under the common interest doctrine, it did not waive the protection because it has a
`common interest with AT&T in defending against the Callwave’s claims in the Underlying
`Litigation.
`The common interest doctrine is not a privilege in and of itself, but rather serves as an exception
`to waiver of the attorney-client or attorney work product privilege. See Nidec Corp. v. Victor Co. of
`Japan, 249 F.R.D. 575, 578 (N.D. Cal. 2007) (citing United States v. Bergonzi, 216 F.R.D. 487, 495-
`96 (N.D. Cal. 2003) (discussing “the common interest exception to waiver of the
`attorney-client/work product privilege”)).3 Because the common interest privilege “is an anti-waiver
`exception, it comes into play only if the communication at issue is privileged in the first instance.”
`Id.
`
`3 In their letter, the parties refer to the common interest “privilege” rather than the common
`interest “doctrine.” The court prefers the term “doctrine.” Although some courts have referred to it
`as a privilege, other courts have made clear that the doctrine is not a privilege, but instead is an
`exception to general rules that the attorney-client privilege is waived if the attorney-client
`communications are made in the presence of, or shared with, third-parties, and that the work-product
`privilege is waived by disclosure to third parties which results in disclosure to an adversary party.
`See, e.g., Nidec Corp. v. Victor Co. of Japan, 249 F.R.D. 575, 578 (N.D. Cal. 2007).
`
`ORDER
`C 14-80112 JSW (LB)
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`Case4:14-mc-80112-JSW Document64 Filed02/23/15 Page7 of 9
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`For the common interest doctrine to apply, the party asserting the privilege must show: “(1) the
`communication is made by separate parties in the course of a matter of common interest; (2) the
`communication is designed to further that effort; and (3) the privilege has not been waived.” See
`Bergonzi, 216 F.R.D. at 495 (citing In re Mortgage Realty Trust, 212 B.R. 649, 653 (Bankr. C.D.
`Cal. 1997)). “The privilege does not require a complete unity of interests among the participants,
`and it may apply where the parties’ interests are adverse in substantial respects.” Bergonzi, 216
`F.R.D. at 495 (quoting In re Grand Jury Subpoena Duces Tecum, 406 F. Supp. 381, 392 (S.D.N.Y.
`1975)). The parties, however, must have “a common legal, as opposed to commercial, interest.”
`Nidec, 249 F.R.D. at 579 (quoting Bank Brussels Lambert v. Credit Lyonnais (Suisse) S.A., 160
`F.R.D. 437, 447 (S.D.N.Y. 1995)). “[I]t [also] is clear that no written agreement is required, and
`that a [joint defense agreement] may be implied from conduct and situation, such as attorneys
`exchanging confidential communications from clients who are or potentially may be codefendants or
`have common interests in litigation.” United States v. Gonzalez, 669 F.3d 974, 979 (9th Cir. 2012).
`Here, Location Labs says that it shares with AT&T a common interest “in a joint defense against
`the allegations by Callwave.” (2/6/2015 Joint Letter, ECF No. 63 at 4.) It says that it and AT&T, “a
`licensee and licensor, had a common interest in defending against the claims of Callwave, extending
`to any indemnification provided, and it is precisely these matters of common interest that were
`discussed in the documents at issue.” (Id. at 5.) The court agrees. First, both Location Labs and
`AT&T have an interest in defeating Callwave’s claims of patent infringement in the Underlying
`Litigation. That they also have negotiated possible indemnification with respect to those claims
`does not necessarily cancel that out. (See Am. Eagle Outfitters, Inc. v. Payless ShoeSource, Inc., No.
`CV 07-1675(ERK)(VVP), 2009 WL 3786210, at *3-4 (E.D.N.Y. Nov. 12, 2009).) Second,
`according to Location Labs, the documents reflect its and AT&T’s efforts to further their common
`interest. Third, Location Labs has not waived the protections of the attorney work-product doctrine,
`as Callwave has not gained access to the documents. Pecover v. Elec. Arts Inc., No. C08-2820 CW
`(BZ), 2011 WL 6020412, at 1 (N.D. Cal. Dec. 2, 2011)(“Work product protection is waived where
`disclosure of the otherwise protected document is made to a third party, and that disclosure enables
`an adversary to gain access to the information.”)(citing McMorgan & Co. v. First Cal. Mortg., 931
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`ORDER
`C 14-80112 JSW (LB)
`
`7
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`For the Northern District of California
`UNITED STATES DISTRICT COURT
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`

`

`Case4:14-mc-80112-JSW Document64 Filed02/23/15 Page8 of 9
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`F. Supp. 703 (N.D. Cal. 1996)). Because all three requirements are met, the court concludes that all
`six documents are protected from disclosure as attorney work product and that, under the common
`interest doctrine, Location Labs did not waive that protection.
`V. CALLWAVE HAS NOT MET ITS BURDEN TO SHOW THAT IT HAS A
`SUBSTANTIAL NEED FOR THE DOCUMENTS
`Finally, Callwave argues that it should still gain access to the “facts” contained in the documents
`because it has a “substantial need” for them. One district court recently has explained when the
`protections of the attorney work-product doctrine may be overcome:
`Even if certain materials qualify as work product, they may still be discovered
`under certain circumstances. There are two types of work product, which entail two
`different standards for discovery. See Arfa, 2014 WL 815496, at *4. “Ordinary”
`work product includes “raw factual information” while “opinion” work product
`includes “mental impressions, conclusions, opinions, or legal theories of a party's
`attorney or other representative concerning the litigation.” Id. (citing St. Paul
`Reinsurance Co. v. Commercial Fin. Corp., 197 F.R.D. 620, 628 (N.D. Iowa 2000);
`Fed. R. Civ. P. 26(b)(3)(B)); Caremark, 195 F.R.D. at 616. Ordinary work product
`may be discovered if the party seeking the discovery demonstrates a “substantial
`need” for the materials and there is no other means for obtaining that information
`without undue hardship. Fed. R. Civ. P. 26(b)(3); Hickman, 329 U.S. at 511. In
`contrast, opinion work product enjoys stronger protection, and it may be discovered
`only “when mental impressions are at issue in a case and the need for the material is
`compelling.” Holmgren v. State Farm Mut. Auto. Ins. Co., 976 F.2d 573, 577 (9th
`Cir. 1992) (citing Upjohn Co. v. United States, 449 U.S. 383, 401-02 (1981))(“A
`party seeking opinion work product must make a showing beyond the substantial
`need/undue hardship test required under Rule 26(b)(3) for non-opinion work
`product.”).
`
`Hooke v. Foss Maritime Co., Case No. 13-cv-00994-JCS, 2014 WL 1457582, at *2 (N.D. Cal. Apr.
`10, 2014). Callwave posits that the documents likely contain facts (i.e., ordinary work product), and
`not mental impressions, relevant to the issue of whether Location Labs is in privity with AT&T.
`(Whether Location Labs and AT&T are in privity is important to Callwave because, if they are, it
`could mean that Location Labs improperly filed its second petition for inter partes review with the
`United States Patent and Trademark Office. (See 2/6/2015 Joint Letter, ECF No. 63 at 3 n.2 (citing
`35 U.S.C. § 315(b)).) Callwave says that Location Labs’s and AT&T’s discussions about the scope
`of indemnification and their relative responsibilities are likely to show privity-related facts.
`Callwave also says that it has not been able to get information about this issue in the pending inter
`partes review proceedings, which allow for only limited discovery.
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`ORDER
`C 14-80112 JSW (LB)
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`8
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`For the Northern District of California
`UNITED STATES DISTRICT COURT
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`

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`The court does not believe that Callwave has met its burden to demonstrates a “it has substantial
`need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial
`equivalent by other means.” Fed. R. Civ. P. 26(b)(3). As Location Labs points out, Callwave fails
`to acknowledge “the numerous documents regarding the indemnification agreement between AT&T
`and Location Labs [that] have already been produced to Callwave, including the indemnification
`agreements and all correspondence between Location Labs and [AT&T] prior to the date Location
`Labs accepted the defense.” (2/6/2015 Joint Letter, ECF No. 63 at 6.) Indeed, nowhere in its
`section of the parties’ letter does Callwave say that these already-produced documents do not bear
`upon the privity issue. Perhaps this is because saying so would undercut its other argument—that
`the six documents listed on the privilege log “likely” contain facts showing privity. If the
`indemnification-related documents already produced do not bear upon the privity of Location Labs
`and AT&T, then the documents Location Labs listed on the privilege log likely do not either. But if
`the indemnification-related documents already produced do bear upon the privity of Location Labs
`and AT&T, then Callwave would not have a substantial need for the documents protected by the
`attorney work-product doctrine. On this record, then, the court concludes that Callwave has met its
`burden to overcome Location Labs’s assertion of the attorney work-product doctrine for the six
`documents that Location Labs listed on its privilege log. Location Labs will not be required to
`produce them to Callwave.
`
`CONCLUSION
`For the reasons describe above, the court denies Callwave’s request for an order requiring
`Location Labs to produce the six documents that it identified on the privilege log that it provided to
`Callwave on January 20, 2015.
`IT IS SO ORDERED.
`Dated: February 23, 2015
`
`_______________________________
`LAUREL BEELER
`United States Magistrate Judge
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`For the Northern District of California
`UNITED STATES DISTRICT COURT
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`ORDER
`C 14-80112 JSW (LB)
`
`9
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