Nidec Corp. v. Victor Co. of Japan (PDF) Magistrate Judge Chen Decided July 26, 2007 Nidec moved to compel Victor Company of Japan (JVC) to produce several documents related to JVCÃ¢â?¬â?¢s perceptions of settlement positions and assessment of the case. At the direction of outside counsel, in-house counsel for JVC created a PowerPoint presentation for prospective buyers of JVC related to NidecÃ¢â?¬â?¢s claims of patent infringement. JVC clarified, however, that the presentation was not specifically prepared for the buyers. As such, the presentation was not prepared for merely a business purpose, but was for a litigation purpose. The presentation was thus work product. Nidec claimed that the work product privilege was waived by JVC because JVC showed the presentation to third parties (the prospective buyers).
For work product Ã¢â?¬Ë?protection is waived where disclosure of the otherwise privileged documents is made to a third party, and that disclosure enables an adversary to gain access to the information.Ã¢â?¬â?¢
Nidec argued that the prospective buyers were adversaries of JVC so the privilege was waived. Magistrate Judge Chen explained that there has to be a potential for litigation between two parties for them to be adversaries.
In the instant case, there is insufficient evidence to demonstrate that JVC and the prospective buyers were adversaries because, at the time of the disclosure, litigation between the parties was nothing but the remotest of possibilities.
Next, the court analyzed whether disclosing the presentation to the potential buyers Ã¢â?¬Å?substantially increasedÃ¢â?¬Â? the likelihood that the information would fall into the hands of Nidec. The disclosure did not Ã¢â?¬Å?substantially increaseÃ¢â?¬Â? this likelihood because all of the potential buyers signed confidentiality agreements and security measures were used to protect the documents in question. Accordingly, privilege was not waived and the court did not compel disclosure of the documents.