Back in the day, when I was a practicing litigator, a very senior federal judge who I will just refer to as "Judge Elderly" was complicating my life and the lives of my co-counsel by being extremely slow to rule on certain important motions. Leaving the courtroom one day after the judge's delays created yet another procedural quagmire, my co-counsel somberly deadpanned, "None of this would have happened if Judge Elderly was still alive."

I kind of feel the same way after learning, two months late, about the crazy factual scenario playing out in the case of Jasmine Networks v. Marvell Semiconductor in state court in California: I would have known about this long ago if Corp Law Blog was still alive! (just kidding, Mike!).

The case stems from the following lawyer-nightmare scenario, which I think blows right by the Seventh Circle of Document Review Hell in terms of sheer lawyer anguish: Three Marvell employees--Marvell's general counsel; its VP of engineering, and in-house patent attorney--gathered to call a person at Jasmine, a company with which Marvell was negotiating to purchase some technology. Using a speakerphone, the three left a message on the Jasmine employee's voicemail. However, after leaving the initial message, they failed to hang up the speakerphone, and proceeded to have a conversation that also was recorded on the voicemail.

To put the inadvertently left message in context, Marvell and Jasmine had entered into a nondisclosure agreement that protected the secrecy of Jasmine's trade secrets and employee information. To that end, Marvell was given an opportunity to look at the trade secret information, but not to remove it. Patent disclosures, among the most important of Jasmine's intellectual property, could be reviewed but not copied. Enough was to be shown Marvell to demonstrate the value without disclosing the secret. As summarized by the California Court of Appeals (Sixth District), the contents of the inadvertent voicemail "demonstrate[d] the theft of Jasmine's trade secret, the potential consequences and the planned cover up."

The lower court granted Marvell's request for a preliminary injunction enjoining Jasmine from disclosing, disseminating or referring to the contents of the recorded voicemail conversation. Marvell had argued that because the conversation involved its attorneys, its contents were subject to the attorney-client privilege. Jasmine appealed this ruling.

The Sixth District Court of Appeals reversed, finding that the privilege had been waived by Marvell because although an attorney's inadvertent disclosure does not waive the privilege absent the privilege holder's intent to waive, this rule did not apply because Marvell's general counsel was acting not only in that capacity, but also as the vice-president of business affairs and an officer of the corporation. In short, the appeals court held that because the general counsel also held the title of vice president and was an officer of the company, the fact that Marvell did not intend to waive the privilege through the inadvertent disclosure was immaterial.

This decision apparently has now been appealed to the Supreme Court of California, and has prompted the Association of Corporate Counsel to submit this amicus curiae letter. The ACC argues that the opinion, "if left standing, means that an in-house lawyer who is providing legal services, but who does so with a corporate title (such as 'vice president') attached to his business card, can inadvertently waive the privilege, contrary to the rule for all other attorneys." The ACC noted that more than 4,000 of its 16,000 members hold the title of "vice president," while many others hold similar titles such as Chief Legal Officer.