The Regents of the University of California v. Micro Therapeutics, third party plaintiffs v. Boston Scientific, third party defendants (2007 U.S. Dist. LEXIS 54054 Decided July 13, 2007 Magistrate Judge Seeborg Micro Therapeutics (Ã¢â?¬Å?MicroÃ¢â?¬Â?) moved to force plaintiffs to turn over two unredacted documents written by plaintiffÃ¢â?¬â?¢s patent prosecution counsel relating to efforts made to locate a copy of a doctoral thesis. The documents state a belief that the doctoral thesis was not publicly available. The thesis was, therefore, not disclosed to the USPTO. The redacted portions of the documents, according to plaintiffs, contain attorney-client advice and mental impressions that are protected by privilege. Micro argues that privilege is waived because plaintiff seeks to rely on the documentÃ¢â?¬â?¢s conclusion that the thesis was not publicly available to rebut MicroÃ¢â?¬â?¢s claims of inequitable conduct. Magistrate Judge Seeborg invokes the sword-and-shield theory and states:
A litigant cannot place into issue privileged matters and also claim to what has been placed into issue still remains privileged and not subject to full disclosure.
The subjective belief of plaintiffs was placed into issue because the crux of plaintiffÃ¢â?¬â?¢s defense is the subjective intention of plaintiff and whether the reliance was truly in good faith. MicroÃ¢â?¬â?¢s motion was granted.