In-house counsel who withhold emails as privileged during litigation could be penalized with further depositions, according to Stanley Gibson of Jeffer Mangels Butler & Mitchell. He cites the recent case where Sprint Communications Co. filed a patent-infringement action against Comcast Cable Communications and some of its related companies. Comcast was ordered to produce seven emails that its in-house patent counsel, David Marcus, had previously withheld as privileged, says Gibson.
Once Sprint received the emails, the company sought to compel Marcus for a second deposition, reports Gibson. “Comcast responded that the newly produced emails did not warrant reopening Marcus’s deposition because Marcus did not author any of the emails and the emails did not contain any significant new information,” he says.
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