In Re: Papst Licensing Digital Camera Patent Litigation - MDL 1880

Memorandum in opposition to re MOTION for Clarification Concerning the Scope of Waiver

D.D.C.May 27, 2008

UNITED STATES DISTRICT COURT DISTRICT OF COLUMBIA IN RE PAPST LICENSING GMBH & CO. KG PATENT LITIGATION Misc. Action No. 07-493 (RMC) MDL Docket No. 1880 This Document Relates To: ALL CASES Hon. Rosemary M. Collyer RESPONSE OF OTHER CAMERA MANUFACTURERS TO PAPST ’S MOTION FOR CLARIFICATION The Camera Manufacturers other than Casio in this MDL matter jointly submit this brief response to Papst’s Motion for Clarification Concerning the Scope of Waiver filed on May 16, 2008 in the Casio litigation. Papst filed its Motion seeking “clarification” of the Court’s May 6, 2008 Order affirming the discovery sanctions imposed by Magistrate Judge Robinson on May 31, 2007. Papst seeks a “clarification” that its privileges are waived with respect to Casio, but not the rest of the world. Specifically, it asks this Court to determine that its waiver should be limited to privileged materials that “relate solely to Casio’s products” and that Casio be the sole recipient of any production of privileged materials. Papst’s sought-for “clarification” thus affects the rights of the other Camera Manufacturers. With respect to Papst’s request that its waiver be limited to privileged materials relating solely to Casio’s products, the Camera Manufacturers join in Case 1:07-mc-00493-RMC Document 109 Filed 05/27/2008 Page 1 of 5 - 2 - Casio’s remarks in Section III of its Opposition filed on May 22, 2008 to Papst’s Motion [Dkt. # 107]. As Casio explains, privileged documents relating solely to non- Casio products are clearly relevant to the claim construction issues in the case, and thereby Casio’s own non-infringement case. These documents relating to non-Casio products could contain admissions regarding the structures or methods that satisfy the claim limitations and are thus relevant to infringement and invalidity issues. The Camera Manufacturers also note, however, that given that Papst draws no material distinction among the different Manufacturers’ digital cameras, Papst’s request is likely a veiled attempt to shield the vast majority of its formerly privileged documents, as surely the vast majority of its documents will not relate “solely to Casio’s products,” but rather relate as much to Casio’s products as any other Manufacturers’ products. As to Papst’s request that the privilege waiver be limited to Casio’s eyes only, the other Camera Manufacturers do not believe extensive briefing is necessary on this point because it is essentially black-letter law that Papst’s disclosure of privileged documents to Casio necessarily waives that privilege as to adversaries in other civil actions. Cobell v. Norton, 213 F.R.D. 16, 24 (D.D.C. 2003) (“The case law in this Circuit is clear that confidentiality does not survive . . . disclosure to a third party . . . .”); Navajo Nation v. Peabody Holding Co., Inc., 209 F.Supp.2d 269, 285 (D.D.C. 2002) (“[I]n the attorney-client context, [the D.C. Circuit] adheres to a strict rule on waiver of privileges.”) (citation omitted); see also In re Subpoena Duces Tecum, 738 F.2d 1367 (D.C. Cir. 1984) (rejecting claims of attorney client privilege Case 1:07-mc-00493-RMC Document 109 Filed 05/27/2008 Page 2 of 5 - 3 - and work product protection when documents had been disclosed previously); Permian Corp. v. United States, 665 F.2d 1214, 1221 (D.C. Cir. 1981) (“The client cannot be permitted to pick and choose among his opponents, waiving the privilege for some and resurrecting the claim of confidentiality to obstruct others”). Indeed, Papst already knows the law and acknowledged it when (in arguing against affirmance of the sanctions) Papst stated that “a decision in the Casio lawsuit requiring Papst to produce, for example, otherwise privileged documents in that case would likely have the prejudicial consequences of compelling Papst to produce the same documents in the other five MDL cases.” Joint Status Report at 7 (Dec. 10, 2007) [MDL Dkt. #4] (emphasis added). Because the law is clear that the waiver of privilege resulting from Papst’s sanctionable conduct is not selective but instead applies to each of Papst’s opponents, Papst’s request for a contrary “clarification” must be rejected. Dated: May 23, 2008 Respectfully submitted, /s/ Patrick J. Kelleher Patrick J. Kelleher DRINKER BIDDLE & REATH LLP 191 N. Wacker Dr. # 3700 Chicago, IL 60606 312.569.1000 patrick.kelleher@dbr.com Counsel for Samsung Techwin Co., Ltd. and Samsung Opto-Electronics America, Inc. /s/ Steven J. Routh Steven J. Routh HOGAN & HARTSON LLP 555 13th Street, NW Washington, DC 20004-1109 202.637.6472 Case 1:07-mc-00493-RMC Document 109 Filed 05/27/2008 Page 3 of 5 - 4 - sjrouth@hhlaw.com Counsel for Fujifilm Corporation and Fujifilm U.S.A., Inc. /s/ Rachel M. Capoccia Rachel M. Capoccia HOGAN & HARTSON LLP 1999 Avenue of the Stars, Suite 1400 Los Angeles, CA 90067 310.785.4694 rdebodo@hhlaw.com Counsel for Victor Company of Japan, Ltd., and JVC Co. of America /s/ Richard de Bodo Richard de Bodo HOGAN & HARTSON LLP 1999 Avenue of the Stars, Suite 1400 Los Angeles, CA 90067 310.785.4694 rdebodo@hhlaw.com Counsel for Matsushita Electric Industrial Co., Ltd., Olympus Corporation, and Olympus Imaging America, Inc. /s/ Heather N. Mewes Heather N. Mewes FENWICK & WEST LLP 555 California Street, 12th Floor San Francisco, CA 94104 HMewes@fenwick.com Counsel for Hewlett Packard Co. /s/ Paul Devinsky Paul Devinsky MCDERMOTT WILL & EMERY LLP 600 Thirteenth Street, NW Washington, DC 20005-3096 pdevinsky@mwe.com Counsel for Ricoh Company, Ltd., Ricoh Americas Corp., and Ricoh Corp. Case 1:07-mc-00493-RMC Document 109 Filed 05/27/2008 Page 4 of 5 - 5 - CERTIFICATE OF SERVICE The undersigned attorney certifies that on 27 May 2008: a copy of the following was served via ECF: • Response of Other Camera Manufacturers to Papst’s Motion for Clarification on all counsel of record by filing it through the United States District Court for the District of Columbia Electronic Case Filing System. /s/ Patrick J. Kelleher Counsel for Samsung Techwin Co., Ltd. and Samsung Opto-Electronics America, Inc. Patrick J. Kelleher patrick.kelleher@dbr.com DRINKER BIDDLE & REATH LLP 191 N. Wacker Dr. # 3700 Chicago, IL 60606 CH02/ 22524974.1 Case 1:07-mc-00493-RMC Document 109 Filed 05/27/2008 Page 5 of 5