Whirlpool Corp. v. Camco Inc.
T-2028-95
Giles A.S.P.
3/4/97
5 pp.
Motion for production of documents from U.S. plaintiff's U.S. lawyers filed in connection with prosecution of U.S. plaintiff's Canadian patent-Documents part of exchange between U.S. plaintiff's U.S. lawyer and Canadian patent agents, admittedly not solicitors-Exchange for purposes of prosecuting Canadian patents-No litigation specifically contemplated at time-Whether solicitor and client privilege attaching to correspondence-Motion for production dismissed-Two types of solicitor and client privilege: (1) privilege attaching to communications between solicitor and client for purposes of obtaining legal advice, assistance; (2) privilege attaching to reports, information prepared by third parties for use of client's solicitor in litigation-Second type of privilege not applicable as litigation not in contemplation at relevant time-Dominant purpose of communication to obtain Canadian patent-Where solicitor requesting person to obtain or generate and supply information to solicitor so that solicitor can render legal advice or assistance to client, that information while possibly exigible from other sources not exigible from solicitor's files-Protection not diminished by fact material or information in U.S. attorney's files may have been originated by patent agent-U.S. plaintiff's house counsel qualifying as legal adviser for purposes of U.S. plaintiff being able to claim solicitor and client privilege-Documents for which privilege claimed generated by or at request of U.S. plaintiff's house counsel for purpose of providing advice to U.S. plaintiff-Documents ordered sealed until matter finally disposed of.