Judge: Motorola Email Not Protected by Attorney-Client Privilege
Wednesday, April 18, 2018 | Comments

An Illinois district judge ruled that an email chain between Motorola Solutions employees is not protected by attorney-client privilege and must be turned over to Hytera Communications as part of the discovery process.

The decision by Magistrate Judge Jeffrey Cole comes in Motorola’s theft of trade secrets lawsuit it filed against Hytera last year in the U.S. District Court for the Northern District of Illinois.

Hytera later filed a motion to dismiss, arguing that the statute of limitations under both federal and state trade secrets laws had passed. Motorola responded that it had only recently become aware of the alleged thefts, and therefore, was still within the statutes of limitations.

In an order, Judge Samuel Der-Yeghiayan ruled that it wasn’t an appropriate time to dismiss the case based on the issue of timeliness but acknowledged Hytera’s claims that the statute of limitations had passed. He converted the motion to dismiss to a motion for summary judgment and ordered a period of discovery focused specifically on timeliness.

Der-Yeghiayan has since retired and other judges have taken over the case.

A lengthy discovery period, which has taken five months so far, followed Der-Yeghiayan’s order. A key part of that discovery period has been claims of privilege that Motorola raised so that it does not have to turn over some documents related to the case.

One heavily disputed item on Motorola’s list of privileged documents is item 364, which is a string of emails between several Motorola engineers from October 2012, according to Cole’s order and opinion.

According to the order, in the string of emails, a Motorola engineer expresses concern about the similarity of a recently patented idea by Motorola and an idea for a new product by a Hytera employee who formerly worked for Motorola.

Motorola argued that the string of emails is protected by attorney-client privilege because the original email was the first step in obtaining legal advice about the issue.

Cole rejected this argument, noting that no lawyers were copied on the email string and that the sender only asked for advice on what steps he should take next.

“The email never mentioned a lawyer, or hinted at a desire to get input from a lawyer, or to have a lawyer assess what was being said in the email,” Cole wrote. “The author does not ask that the email be forwarded to a lawyer; nor does it asked (sic) that a lawyer’s views on the content of the email be solicited.”

The string of emails is significant because it could show Motorola was aware of the alleged trade secret violations sooner than it claims.

“The email discussed above was written four years before Motorola claims it decided to investigate any misappropriation,” Cole wrote in his order. “And while Motorola might claim that the October 2012 email does not reflect that Motorola was aware its trade secrets were surreptitiously downloaded so that departing employees could take them, the email is significant in the statute of limitations analysis.”

The Illinois Trade Secrets Act has a five-year statute of limitations, while the Federal Defend Trade Secrets Act has a two-year statute of limitations.

“But that is a matter for another day,” Cole wrote. “For now it is enough to say item 364 is not privileged and is plainly relevant. Further inquiry will reveal what it will.”

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