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Keywords

contractbreach of contractattorneydepositiondiscoverytestimonypatenttrade secretexpert witnesswrit of mandamusprivileged communicationattorney-client privilege
contractbreach of contractattorneydepositiondiscoverytestimonypatenttrade secretexpert witnesswrit of mandamusprivileged communicationattorney-client privilege

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In re Pioneer Hi-Bred Intern., Inc., 238 F.3d 1370, 2001-1 USTC P 50,239, Fed. Sec. L. Rep. P 91,326, 49 Fed.R.Serv.3d 488, 57 U.S.P.Q.2d 1658

Facts

Monsanto Company sued Pioneer for breach of contract, patent infringement, and misappropriation of trade secrets, claiming that two license agreements did not survive Pioneer's merger into Delta Acquisition Sub, Inc. During discovery, Monsanto sought information about the merger, and Pioneer's in-house counsel was designated to answer deposition questions. Pioneer's counsel invoked attorney-client privilege, but the district court compelled responses, stating that the privilege was waived due to disclosures made in a SEC proxy statement and to expert witnesses.

Monsanto Company sued Pioneer for breach of contract, patent infringement, and misappropriation of trade secrets, claiming that two license agreements did not survive Pioneer's merger into Delta Acquisition Sub, Inc. During discovery, Monsanto sought information about the merger, and Pioneer's in-house counsel was designated to answer deposition questions.

Issue

Did Pioneer waive its attorney-client and work product privileges by disclosing information related to the merger and relying on advice of counsel?

Did Pioneer waive its attorney-client and work product privileges by disclosing information related to the merger and relying on advice of counsel?

Rule

The attorney-client privilege can be waived if a party discloses or relies on privileged communications in a manner that contradicts the confidentiality of those communications.

The attorney-client privilege can be waived if a party discloses or relies on privileged communications in a manner that contradicts the confidentiality of those communications.

Analysis

The court found that Pioneer's disclosure of advice concerning tax consequences of the merger constituted a waiver of the attorney-client privilege for documents related to that advice. Additionally, any disclosure to expert witnesses regarding confidential communications also waived the privilege. The court emphasized that the privilege only protects the disclosure of communications, not the underlying facts.

The court found that Pioneer's disclosure of advice concerning tax consequences of the merger constituted a waiver of the attorney-client privilege for documents related to that advice. Additionally, any disclosure to expert witnesses regarding confidential communications also waived the privilege.

Conclusion

The court granted Pioneer's petition for a writ of mandamus in part, vacating the district court's order except for the requirement to produce documents and testimony related to tax advice received from counsel.

The court granted Pioneer's petition for a writ of mandamus in part, vacating the district court's order except for the requirement to produce documents and testimony related to tax advice received from counsel.

Who won?

Pioneer Hi-Bred International, Inc. prevailed in part as the court vacated some of the district court's orders regarding privilege, allowing for certain protections to remain.

Pioneer Hi-Bred International, Inc. prevailed in part as the court vacated some of the district court's orders regarding privilege, allowing for certain protections to remain.

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