Apple Inc. v Samsung Electronics Co. Limited (No 2)  FCA 1358 (10 December 2012)
According to an affidavit sworn by a senior legal counsel for Samsung, the number of potentially relevant documents collected by the company’s Australian solicitors, for possible disclosure to Apple in the ongoing litigation, is by now in excess of 500,000. That is, there are over half a million documents produced by, or on behalf of, Samsung, which somebody has had to consider for the purposes of satisfying discovery notices issued by Apple!
So far Apple has identified 128 ‘categories’ of documents which, by agreement or court order, Samsung is required to produce. It is generally up to Samsung and its lawyers to find all of the documents in their possession which fall into the specified categories. Of the half million documents which have been collected for this purpose, over 3,000 have already been supplied to Apple.
As part of this process, a disagreement arose between Apple and Samsung over whether or not a particular selection of 154 documents was immune from production, on the basis that these documents are covered by the exclusion commonly known in Australia as legal professional privilege (sometimes also known as ‘client-solicitor privilege’, and in the US as attorney-client privilege).
This dispute has been adjudicated separately from the main litigation, by Justice Cowdroy in the Federal Court of Australia, who has inspected over half of the documents for himself in order to conclude that they are indeed protected by privilege. However, there were also two documents, which have previously been tendered in redacted form by Samsung as evidence in the main proceeding, in respect of which Justice Cowdroy found that the privilege had therefore been waived. Samsung is therefore now required to furnish these documents in full.
Quite aside from the general interest generated by any Apple/Samsung decision, Justice Cowdroy’s judgment should be essential reading for all in-house lawyers within companies operating in Australia. Continuing a line of cases in which the assessment of privilege by in-house counsel has been treated as inherently suspect, Justice Cowdroy determined that sworn statements by a lawyer employed by Samsung could not be relied-upon for the purposes of determining whether or not they were properly the subject of privilege. Fortunately for Samsung, however, he considered that there was sufficient reason to think that they might be privileged that it would be appropriate for him to take a look for himself before rendering judgement.