The U.S. Department of Justice was clearly concerned about the fate of Research in Motion Ltd., the BlackBerry developer that faced a faced a business-shuttering injunction in 2005. Lawyers for NTP Inc., the company seeking the injunction, knew that. The U.S. government was, after all, the largest single user of BlackBerry devices.
What NTP's lawyers didn't know was that Justice had secretly entered into a common-interest agreement with RIM to advance government interests in the patent infringement dispute. Around the time the patent case settled, the attorneys heard about the agreement — and now they want to know more.
A Freedom of Information Act (FOIA) lawsuit brought by Hunton & Williams, one of the firms that represented NTP in the patent case, is seeking to expose the behind-the-scenes legal maneuvering. Hundreds of e-mails and other communications between RIM and the government — what Hunton lawyers describe as an "intense lobbying" campaign by RIM — are the centerpiece of the records dispute, which was argued before the 4th U.S. Court of Appeals on Sept. 22.
Because the patent case settled not long after Justice weighed in, it's unclear whether the government's involvement had any real impact on the outcome. But the government is worried that a loss in the FOIA case could hurt its ability to pursue joint legal strategies with private companies if it can't keep those communications confidential.KEEPING IT CONFIDENTIAL
Justice Department lawyer John Fargo said in court papers that there was nothing untoward about the government's confidential communication with RIM. Common-interest agreements, Fargo said, are routine. Hunton lawyers in turn argue that Justice masqueraded as a neutral third party in the patent litigation by never disclosing the agreement.
"What is the continuing interest of the United States in maintaining the secrecy of the [communications]?" asked John Jay Range, a partner in the Washington office of Richmond, Va.-based Hunton & Williams, in a publicly filed deposition of Fargo in January 2007.
Fargo, director of the intellectual property staff of the Civil Division's commercial litigation branch, replied, "Simply that in dealing with parties [with] which we have a common interest, there is an interest in abiding by those confidences and protecting them." (Fargo declined to comment for this article.)
The patent infringement case that led to the FOIA dispute was litigated in the U.S. district court in Richmond, Va. The time line ran like this: In 2002, a jury found that RIM violated certain NTP patents for e-mail technology. In December 2004 and August 2005, a panel of the U.S. Court of Appeals for the Federal Circuit issued two rulings that ultimately sent the case back to the trial court.
Between the two rulings, RIM's outside counsel reached out to Justice to try to convince the department to take a public interest position in the dispute. During several months in 2005, Justice lawyers talked on the phone and met with RIM's attorneys on multiple occasions, court records show. Hunton lawyers say RIM tried to "incite" Justice with documents to jump into the litigation.
Assistant U.S. Attorney Robert McIntosh later stated in 4th Circuit appellate briefs that it was not until after RIM contacted Justice that the department "appreciated the complexities" of the suit as it pertained to the government's continued use of BlackBerrys.
A common-interest agreement, which allowed RIM and Justice to share information without waiving privilege, was formally reached in November 2005. Fargo and Herbert Fenster, a senior counsel to McKenna Long & Aldridge who practices in the firm's Denver and Washington offices, signed the agreement for Justice and RIM, respectively.
It stated that "the continued ability to employ those BlackBerry systems and devices is considered of sufficient importance to the U.S. to make necessary" the agreement. RIM and the United States understand that the agreement does not "impair the ability of either party to pursue its own interests in this matter."
There are no regulations, guidelines, rules or policies that govern common-interest agreements at the Justice Department, although a supervisor generally is required to sign off on them.
Nonetheless, Fenster said in an interview, "The notion of the common interest agreement is well embedded." He described it as uncommon to see one "attacked."
The same month that the RIM agreement was signed, with the case back before the trial judge, Justice filed a statement of interest with the court to the effect that the government had a "substantial" interest in the proceedings. At a subsequent hearing, Justice lawyers argued for a narrow injunction, a position supporting RIM's interests — as well as the government's.WHAT WAS REVEALED
The BlackBerry litigation ended in March 2006 when RIM agreed to pay NTP $612.5 million, and the threat of an injunction was eliminated. The lawyers' interest in what happened behind the scenes did not go away. Around the time of the settlement, according to Hunton's appellate brief, "it was revealed" that RIM and Justice had entered into a common-interest agreement. In May 2006, Hunton filed a FOIA request under the firm's own name to dig up more information about the agreement.
The Justice Department allegedly withheld 311 documents in whole or in part. The documents included drafts of potential declarations and pleadings, e-mails about the effect of an injunction on government BlackBerrys, and other discussions about how government BlackBerrys could be excepted from any injunction. Hunton sued to get the additional material.
Last year, Chief Judge James Spencer of the U.S. District Court for the Eastern District of Virginia granted in part the government's motion for summary judgment. Spencer ruled that most of the documents Hunton wants are "subject to the common interest privilege," thereby qualifying as intra-agency or interagency communications.
Hunton's appeal of that decision led to last week's argument before the 4th Circuit. At oral argument, Judge M. Blane Michael said he had difficulty seeing how RIM's communication with Justice can qualify as "intra-agency" or "interagency," considering that RIM is not a government agency.
Michael and the second judge on the panel — U.S. District Judge Irene Keeley of the Northern District of West Virginia sitting by designation — also focused on the timing of the common-interest agreement. They wondered whether communications that occurred before the agreement was signed deserved less protection and therefore should be produced under FOIA.
Judge J. Harvie Wilkinson III commented that he doesn't like government secrecy and is "very sympathetic to FOIA cases."
Still, Wilkinson seemed inclined to rule in the Justice Department's favor. He said the government should be able to litigate on "even terms," sharing the same privileges that private civil litigants enjoy. The government is "surely entitled not to be put in a disadvantageous position," he told Hunton associate Edward Noonan, who argued for the firm. "How would you like to litigate without attorney-client or work-product privilege?"
Mike Scarcella can be reached at email@example.com.