Siemens v. Seagate Technology, 2009 U.S. Dist. LEXIS 132522 (C.D. Cal. April 27, 2009):

a. Admissibility of the Privilege Logs

In conjunction with its argument regarding the joint invention of Parkin and Heim, Siemens argues that the Court erred in admitting the IBM privilege logs (Tr. Exhibits 756 and 757) over Siemens' objections before and during the trial and that the logs should not have been considered in determining whether reasonable diligence (or, otherwise, unreasonable delay) existed. (Mot. p. 17.) Although it is not necessary to address Siemens' argument regarding a joint invention, the Court will nevertheless address the admissibility of the logs.

Siemens contends that a "privilege log is merely a tool to facilitate discovery, not an independent piece of evidence that proves or disproves an alleged fact." (Id.) Siemens points to the case of Old Republic Ins. Co. v. Ness, Motley, Loadholt, Richardson & Poole, P.A., 2006 WL 3782994 (N.D.Ill. 2006), in support of its argument. In Old Republic Ins. Co., the court excluded the privilege log, finding that:

The privilege log itself is not evidence; rather, the document named in the privilege log is the evidence. Because the court concludes that any probative value is substantially outweighed by the probability of jury confusion, the privilege log is inadmissible. The parties will be held to proving their cases based on the actual evidence, not on misstatements made and corrected by their lawyers. Further, as noted by Old Republic, if Ness Motley is permitted to attempt to introduce the privilege log, a 'trial within a trial' will result as Old Republic will be required to call its previous counsel to testify as to the circumstances surrounding the mistake, among other things, and the court's time and resources will be wasted.

Id. at *13.

The Court finds, however, that Old Republic Ins. Co. is distinguishable from the present action. The court in that case focused on the fact that the privilege log contained attorney error. Here, there is no contention that the logs contain attorney error. To the extent that Old Republic Ins. Co. is not distinguishable, this Court declines to follow the holding.

Siemens further argues that the logs are inadmissible hearsay. (Mot. p. 18.) In this Court's order dated Oct. 27, 2008, the Court found that:

While it is true they [the logs] are not being offered for the truth of the content of the documents covered by the logs, they are nevertheless being offered for the truth of the events which they purport to record; namely, that a communication was made of a date certain during the prosecution process.

However, the Court finds that the logs fall within the residual hearsay exception under Rule 807. IBM's counsel testified concerning the preparation of the logs. The preparation is fairly ministerial with no need for interpretation to ensure accuracy, and either done by or under the supervision of officers of the court. The present record meets the specific requirements of Rule 807: corroboration is a material issue, the logs are more probative than other types of evidence available to show diligence, and the interests of justice will be served. (Fed. R. Evid. 807(A)-(C).)

(Minute Order, Oct. 27, 2008, pp. 5-6; Docket No. 557.)

The Court also finds that the logs have circumstantial guarantees of trustworthiness pursuant to Fed. R. Evid. 807 because the preparation was either done by or under the supervision of officers of the court. The Court is not persuaded to change its ruling as to this issue.

In addition, Siemens argues that the logs violate the best evidence rule, Federal Rule of Evidence 1002. Assuming this to be true, Seagate shows that the logs are nevertheless admissible under Rule 1004(2) because there is no way to compel production of the originals, the underlying privileged correspondence. (See Minute Order, Oct. 27, 2008, pp. 5-6; Docket No. 557.)

Siemens further argues that the logs were not relevant or probative and that any probative value was substantially outweighed by unfair prejudice and jury confusion. (Mot. p. 18.) In the order dated November 12, 2008, this Court found that the logs were relevant. (Minute Order, Nov. 12, 2008, pp. 5-6; Docket No. 604.) The Court noted that "the fact of communications themselves is consistent with diligent prosecution." (Id.) The Court also found no prejudice under Rule 403 if the logs are admitted, noting that "[w]hile the logs cannot be cross examined, Siemens had an opportunity to cross examine IBM witnesses with regard to the preparation of the log." (Id.) The Court is not persuaded to alter its findings.

Siemens contends that "the Court agreed to instruct the jury not to speculate on the content of the underlying documents. Indeed, even Seagate agreed to the instruction. The Court, however, failed to give that instruction to the jury. Consequently, there was a substantial likelihood that the jury gave the logs undue weight and improperly speculated as to the content and import of the underlying documents." (Mot. p. 19.) However, Siemens did not object to the absence of the instruction at trial. Federal Rule of Civil Procedure 51(d)(1)(B) states that a party must request and then properly object to the failure to give instruction in order to assign error.

Accordingly, the Court finds that there was no error in admitting the IBM privilege logs.