Nimitz Taking Fight to SCOTUS to Keep Emails Away From Del. Judge

Two days after the U.S. Appeals Court for the Federal Circuit denied Nimitz Technologies’ combined petition for panel rehearing and rehearing en banc of the court’s previous denial of its petition for mandamus relief (see 2302010033), Nimitz asked the Federal Circuit in a motion Thursday (docket 23-103) to stay issuing the mandate in its case, pending the filing of a mandamus or cert petition at the Supreme Court. A mandate would send the case back to Chief U.S. District Judge Colm Connolly in Delaware for enforcement of his Nov. 10 order for Nimitz to produce bank records, emails and other materials for his investigation into any third-party funding that contributed to the filing of four Nimitz patent infringement lawsuits against Bloomberg, BuzzFeed, Cnet and Imagine Learning (see 2212230001). Nimitz asserts the materials Connolly is demanding are protected by attorney-client privilege. The issues to be presented to the Supreme Court “present a substantial question,” and there is good cause for a stay, said the Nimitz motion. By denying the combined rehearing petition, the Federal Circuit required Nimitz to disclose communications “that are protected by the attorney-client privilege to an adversary without any suggestion, much less finding, that any exception to the attorney-client privilege applies in this case,” it said. Four Supreme Court cases, dating to the 1981 decision in Upjohn v. U.S., 449 U.S. 383, 389, “uphold the attorney-client privilege and preclude the disclosure of privileged communications to the district court, which is the adversary in this case,” it said. Nimitz is thus “raising an issue which has never been addressed by any court,” it said. Any disclosure to Connolly of privileged communications would be permanent and “cannot thereafter be ameliorated,” it said.