Zenith Radio Corp. v. Radio Corp. of America, 121 F. Supp. 792 (D. Del. 1954)

U.S. District Court for the District of Delaware - 121 F. Supp. 792 (D. Del. 1954)
May 20, 1954

121 F. Supp. 792 (1954)

ZENITH RADIO CORP.
v.
RADIO CORP. OF AMERICA et al.

Civ. No. 1247.

United States District Court, D. Delaware.

May 20, 1954.

*793 Arthur G. Connolly and Thomas Cooch of Connolly, Cooch & Bove, Wilmington, Del., Joseph S. Wright, Francis W. Crotty and Philip J. Curtis, Chicago, Ill.; Willis H. Taylor, Jr., R. Morton Adams and Thomas F. Reddy, Jr., of Pennie, Edmonds, Morton, Barrows & Taylor, New York City, and Thomas C. McConnell of McConnell, Lutkin & Van Hook, Chicago, Ill., for plaintiff.

Caleb S. Layton of Richards, Layton & Finger, Wilmington, Del., Stephen H. Philbin of Fish, Richardson & Neave, New York City, John W. Nields, (of Cahill, Gordon, Zachry & Reindel), New York City, and Leonard Lyon, Los Angeles, Cal., for defendant Radio Corporation of America.

John J. Morris, Jr. of Morris, James, Hitchens & Williams, Wilmington, Del., Thomas Thacher and Delevan Smith of Simpson, Thacher & Bartlett, New York City, for defendant General Electric Co.

William Prickett, Wilmington, Del., and John E. F. Wood and Henry R. Ashton, New York City, for defendant Western Electric Co., Inc.

LEAHY, Chief Judge.

Claiming sanctuary for some 1600 documents, defendants have refused to produce them for various reasons of privilege, opinion, "work product", and absence of good cause. The withheld documents roughly fall into five categories: (1) those passing between the inventor and patent department employees; (2) those passing between various employees of the same patent department and their related memoranda; (3) those passing between patent department employees and employees of other departments of the same corporation, exclusive of "house counsel"; (4) those passing between patent department employees and non-employees of the corporation, exclusive of "outside counsel"; (5) those passing between patent department employees and either "house counsel" or "outside counsel".

These are the formulae to be followed in determination of the Fed.Rules Civ. Proc. rule 34, 28 U.S.C., motion to produce the withheld documents of all categories. If counsel can not themselves apply these rules to particular papers, I shall arrange for a Special Master to rule on those in dispute. The scope of the Master's authority shall be bounded by what is here written. I do not contemplate any necessity for his having prolonged hearings or being educated in the nature and extent of the patents in suit. Within thirty days after a disputed document is presented to him for decision, the Master will rule upon it. Should any such document not be dispositively governed by these principles, the Master is instructed to refer that exception to me. In the Appendix, infra, I rule on those documents heretofore handed or detailed to me which, though comparatively few in view of the 1600 or so to be ruled upon, shall at least be illustrative.

A factual conflict has arisen as to the nature of the work of defendants' patent department employees. Plaintiff would have it all technical or business and defendants preponderantly legal or under trial attorneys' direction. Although plaintiff's position hovers closer to the realities than defendants', a median characterization more nearly accords with the facts. Essentially, attorneys and employees of defendants' patent departments are engaged in a type of non-legal work to which the attorney-client privilege and "work product" exemption do not attach. In unusual instances, however, they may so deviate from routine work as to qualify. Hereinafter, criteria for non-production are established which resolve the greater part of the conflict, but sufficient elasticity has been provided to encompass the exceptional patent department document. With so many documents written under varying circumstances and times, one blanket ruling on their production would unnecessarily risk inaccuracies of generalization.

*794 Judge Wyzanski's distinguished decision in United States v. United Shoe Machinery Corp., D.C.Mass., 89 F. Supp. 357, has been closely followed as a directly applicable precedent. On it these rulings rest.

 

A) Privilege

There is a privilege only if:

1. the asserted holder of the privilege is or sought to become a client.

In this connection, the respective clients are RCA, General Electric, and Western Electric not the inventors, who are employees.

2. the person to whom the communication was made

a) is a member of the bar of a court or his immediate subordinate and

b) is acting as a lawyer in connection with this communication.

"Outside counsel" for corporations almost invariably, and "house counsel" ordinarily, qualify under this requirement. Organizational charts to the contrary, I do not regard patent department attorneys as "house counsel". Bar membership should properly be of the court for the area wherein the services are rendered, but this is not a sine qua non, e. g., visiting counsel, long distance services by correspondence, pro hac vice services, "house counsel" who practice law only for the corporate client and its affiliates and not for the public generally, for which local authorities do not insist on admission to the local bar.

By "immediate subordinate" I mean to include the general office clerks and help, law clerks, junior attorneys, and the like who habitually report to and are under the personal supervision of the attorney through whom the privilege passes. However, a privilege available to the attorney-chief of a department or intermediate chief does not, as such, protect everyone in his department or everyone organizationally under him; his privilege, if any, extends only to his immediate subordinates as indicated.

"Acting as a lawyer" encompasses the whole orbit of legal functions. When he acts as an advisor, the attorney must give predominantly legal advice to retain his client's privilege of non-disclosure, not solely, or even largely, business advice. At this stage, attorney-employees of the patent departments of RCA, GE, or WE may or may not qualify in specific instances. They do, for example, when in specific matters they are engaged in applying rules of law to facts known only to themselves and other employees of their client-companies, and in preparing cases for and prosecuting appeals in the Court of Customs and Patent Appeals and other like courts of record. They do not "act as lawyers" when not primarily engaged in legal activities; when largely concerned with technical aspects of a business or engineering character, or competitive considerations in their companies' constant race for patent proficiency, or the scope of public patents, or even the general application of patent law to developments of their companies and competitors; when making initial office preparatory determinations of patentability based on inventor's information, prior art, or legal tests for invention and novelty; when drafting or comparing patent specifications and claims; when preparing the application for letters patent or amendments thereto and prosecuting same in the Patent Office; when handling interference proceedings in the Patent Office concerning patent applications.[1]

Any privilege there may be is not a blanket one. The limitation, "in connection with this communication", frames the special relationship that must be found for each document separately considered.

*795 3. the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either an opinion on law, or legal services or assistance in some legal proceeding.

In this case, the corporation is the client. "Strangers" are those not affiliated with the corporation as employees, officers, directors, or "outside counsel". The legal purpose of the communication is to be ascertained in the context of the comments upon a lawyer's activities, supra.

Of course, the privilege must be claimed it is here and not waived by the client.

 

B) Opinion

The second ground on which the documents are withheld is the assertion some merely express opinions of inventors, engineers, and patent department employees. Without more, this is an insufficient reason to preclude their disclosure to plaintiff in pretrial discovery. If not otherwise protected from production, these recorded opinions under the circumstances are to be produced for what they are worth as clues to other discoverable and admissible factual evidence if that be still within the realm of reason after the huge volume of documents discovered to date as potential impeachment tools; as perhaps explanatory of the inventors' original claims under the patents in suit, or as containing material admissions concerning the validity of defendants' patents, and the like.

 

C) "Work Product"

Whatever sanctity may halo "work product", I envisage few, if any, documents of the first four categories, supra, as qualifying for this protection. "Work product" encompasses the impressions, observations and opinions recorded by an attorney, as the product of his investigation of a case in his actual preparation for trial on behalf of a client. It has been extended to include the recorded investigative work of a person hired by the attorney in his trial preparation and acting under his supervision and direction. The extension does not automatically immunize the work of entire departments or staffs of corporations whose chiefs are attorneys. Documents originating in defendants' patent departments except those going to "house counsel" or outside counsel and qualifying under their derivative privileges are not ordinarily "work product". Seldom, if ever, are patent department employees engaged in actual preparation for a trial of the required type. Remote possibility of litigation such as surrounds nearly every act of the office attorney is an insufficient showing. Preparations for Patent Office proceedings and interferences do not qualify because of the administrative nature of the hearings, the qualifications for admission to practice, and absence of the discovery techniques in the rules of practice. What has been said, supra, of identifying criteria of an attorney functioning as an attorney is equally applicable to "work product" considerations.

 

D) "Good Cause"

Plaintiff meets F.R. 34's requirement of "good cause" for production when it shows both the relevance of the documents all pertain to patents in suit and the information contained in them is, by their nature, within the exclusive knowledge of the defendants. Their contents were withheld on the depositions of the writers and will remain unknown to plaintiff unless produced. There being legitimate discovery ends to be served, production should be made now of those found neither privileged or "work product," and not await trial.

An order appointing the Special Master may be submitted, integrating the rulings made in this memorandum.

 

*796 Appendix

 
                                                                                                                              Ground of
Iden.               Type              From                   To                     Date        Sub. Matter                   Withholding             Ruling            Reason
GE 400B-19          Letter            C. S. Root             C. M. Hutchins         7/15/41     Opinion of effect             Privilege and           To be produced    Non-privileged.
                                      (Inventor, GE          (An attorney in                    of prior patents              equal availability                        No att'y-client
                                      Radio & Tel.           GE Pat. Dept.)                     cited by Examiner                                                       relationship.
                                      Eng. Sec.)                                                upon Root's                                                             Not equally
                                                                                                application for                                                         available
                                                                                                Pat. 2,282,381, being
                                                                                                processed by
                                                                                                Hutchins on GE's
                                                                                                behalf
GE 800B-85            "                R. K. Bailey,         P. A. Frank            12/8/48     Patent approval               Privilege, work             "             Non-privileged.
                                       Jr. (Law Clerk        (An attorney                       search of patent              product, and                              No att'y-client
                                       in GE Patent          in GE Pat.                         office records re             equal availability                        relationship.
                                       Dept.)                Dept.)                             Gruen discriminator                                                     Not work
                                                                                                circuit and                                                             product.
                                                                                                opinions of effect                                                      Analysis not
                                                                                                of patents found                                                        equally available
                                                                                                preparatory to
                                                                                                Gruen Patent
                                                                                                Application
GE 800A-5           Flyleaf of GE      Penciled                 __                  Undated     Note of two prior             Work product,               "             Not work
                    Dkt. 84173         notation of C.                                           art patents possibly          privilege, equal                          product. No
                    Re Gruen           M. Hutchins                                              affecting                     availability                              privilege. Not
                    Patent             (Att'y in GE                                             Gruen application                                                       equally available
                                       Pat. Dept.)
GE-800B-18          Form captioned     File memorandum          __                  3/3/52      Check List for                     "                      "[*]            "
                    "Payment of        of C. M.                                                 fee payment with
                    Final Fee". Re     Hutchins (Att'y                                          Gruen Pat. Application
                    Gruen Patent       in GE Pat.
                                       Dept.)
GE 800B-71          Letter             B. J. Lawrence        C. M. Hutchins         5/9/50      Forwarding of                      "                      "                  "
                                       (GE Engineer)         (Att'y in GE                       Zenith Tel. Receiver
                                                             Pat. Dept.)                        Diagram 
                                                                                                Addressee's written
                                                                                                note thereon
 
*797
                                                                                                                              Ground of
    Iden.           Type              From                   To                      Date       Sub. Matter                   Withholding             Rulling                Reason
    GE 800B-58      Letter            W. J. Gruen            C. M. Hutchins          6/13/50    Reference to                  Work product,           To be produced[*]   Not work product.
                                      (Inventor GE           (Att'y in GE                       Barco Pat. and                privilege, equal                               No privilege.
                                      Receiver Division)     Pat. Dept.)                        penciled notes                availability                                   Not equally
                                                                                                thereon                                                                      available
    GE 800B-38         "              C. M. Hutchins         M. D. Morse             3/3/52     Processing of                   "                          "                    "
                                      (Att'y in GE           (Patent Counsel                    Gruen Pat. App.
                                      Pat. Dept.)            of GE Electronics
                                                             Division)
    GE 800B-147        "                  "                  Thomas Thacher          6/2/52     Present suit                    "                     To be withheld         Attorney-client
                                                             (Outside                                                                                                        privilege
                                                             counsel of GE)
    Z 2800 B 123-124   "              T. R. Goldsborough     H. J. O. Barton        11/17/31    Letter of transmittal         Work product,           To be produced         Non-privileged,
                                      (Att'y                 (RCA Pat. Agt.)                    of report                     privilege and                                  not work product,
                                      RCA Pat.                                                  of engineers of               opinion                                        opinion
                                      Dept.)                                                    RCA containing                                                               properly discoverable
                                                                                                opinion re application                                                       here
                                                                                                and foreign
                                                                                                filing
    Z 2800 B 61-62  Memo              F. M. Harris           Pat. Dept. Files        1/17/36    Discussion and                   "                          "                    "
                                      (Att'y RCA                                                opinion re Kell
                                      Pat. Dept.)                                               application and
                                                                                                other applications
    Z 2800 B 68-69  Letter            W. H. Martin           T. R. Goldsborough     10/8/34     Discussion and                   "                          "                    "
                                      (Att'y RCA             (Att'y RCA                         opinion re Kell
                                      Pat. Dept.)            Pat. Dept.)                        application and
                                                                                                foreign prosecution
                                                                                                and request
                                                                                                for recommendation
    Z 2800 B 101      "               S. B. Smith            H. D. Gregory           9/8/32     Discussion and                   "                          "               "
                                      (Att'y RCA             (Att'y RCA                         opinion re Kell
                                      Pat. Dept.)            Pat. Dept.)                        application
    Z 2803 11         "               F. M. Harris           H. G. Grover            8/13/35           "                         "                          "               "
                                      (Att'y RCA             (Att'y RCA
                                      Pat. Dept.)            Pat. Dept.)
 
*798
                                                                                                                              Ground of
    Iden.           Type              From                   To                      Date       Sub. Matter                   Withholding             Rulling                Reason
    Z 2802 13-14    Letter            S. B. Smith            H. D. Gregory           2/19/32    Discussion and                Work product,           To be produced         Non-privileged,
                                      (Att'y RCA             (Att'y RCA                         opinion re Kell               privilege and                                  not work product,
                                      Pat. Dept.)            Pat. Dept.)                        application                   opinion                                        opinion
                                                                                                                                                                             properly discoverable
                                                                                                                                                                             here
    Z 2802 9-12     Report            H. D. Gregory          S. B. Smith            10/16/33    Discussion and                     "                      "                      "
                                      (Att'y RCA             (Att'y RCA                         opinion re interviews
                                      Pat. Dept.)            Pat. Dept.)                        views with examiners
                                                                                                concerning
                                                                                                Kell application
    Z 2600 B 104-105   "              W. A. Tolson           E. W. Engstrom          1/3/34     Report re applications        Privilege opinion           "                  Non-privileged,
                                      (Engineer RCA)         (Engineer RCA)                     including                                                                    opinion properly
                                                                                                Vance application                                                            discoverable
                                                                                                                                                                             here
    Z 1703 C 21-22  Letter            E. W. Bumstead         F. J. Harbaugh          4/8/38     Discussion and                Work product,               "                  Non-privileged,
                                      (RCA Pat. Agt.)        (RCA Pat. Agt.)                    opinion re other              privilege and                                  not work product,
                                                                                                applications and              opinion; equal                                 opinion
                                                                                                other patents                 availability                                   properly discoverable
                                                                                                                                                                             here;
                                                                                                                                                                             not equally
                                                                                                                                                                             available
    Z 1000 B 97-98     "              H. D. Gregory          W. H. Martin            5/31/34    Refers to Z 1000              Work product,               "                  Non-privileged,
                                      (RCA Pat.              (RCA Pat.                          B 99 and discusses            privilege and                                  not work product,
                                      Att'y)                 Att'y)                             blocking oscillator           opinion                                        opinion
                                                                                                                                                                             properly discoverable
                                                                                                                                                                             here
    Z 1000 S 27     Drawing           H. D. Gregory          RCA Pat. Dept.         Undated     Penciled drawing              Work product,               "                  Non-privileged,
                                      (RCA Att'y             Files                              of horizontal                 privilege and                                  not work product,
                                      Pat. Dept.)                                               and vertical deflection       opinion; equal                                 opinion
                                                                                                circuit                       availability                                   properly discoverable
                                                                                                                                                                             here, not
                                                                                                                                                                             equally available
    Z 1300 B 109-111 Letter                "                 H. J. O. Barton         1/2/34     Discussion and                      "                     "                "
                                                             (RCA Pat. Agt.)                    opinion concerning
                                                                                                Vance application
 
*799
                                                                                                                              Ground of
    Iden.               Type          From                   To                     Date        Sub. Matter                   Withholding             Ruling            Reason
    Z 1500 B 15         Memo          H. D. Gregory          Pat. Dept. Files       2/7/35      Discussion and                Work product,           To be produced    Non-privileged,
                                      (RCA Att'y             (RCA)                              opinion re claims             privilege, and                            not work product,
                                      Pat. Dept.)                                               of Ballard application        opinion                                   opinion
                                                                                                                                                                        properly discoverable
                                                                                                                                                                        here
    Z 2307 B 156-157    Letter        H. D. Newton           H. J. O. Barton        11/23/33    Discussion and                Work product,               "             Non-privileged,
                                      (RCA Pat. Agt.)        (RCA Pat. Agt.)                    opinion re Smith              privilege and                             not work product,
                                                                                                applications                  opinion; equal                            opinion
                                                                                                                              availability                              properly discoverable
                                                                                                                                                                        here, not
                                                                                                                                                                        equally available
    Z 2330 93, 94         "                 "                A. S. Greenberg        11/30/32        "                         Work product,               "             Non-privileged,
                                                                                                                              privilege and                             not work product,
                                                                                                                              opinion                                   opinion
                                                                                                                                                                        properly discoverable
                                                                                                                                                                        here
    Z 2347 12             "           H. D. Newton           C. W. McClair          7/17/34     Discussion and                Work product,               "             Non-privileged,
                                      (RCA Pat. Agt.)        (RCA Pat.                          opinion re other              privilege, opinion,                       not work product,
                                                             Dept. Att'y)                       patents and applications      equal                                     opinion
                                                                                                with                          availability                              properly discoverable
                                                                                                reference to                                                            here, not
                                                                                                Smith app.                                                              equally available
    Z 2600 B 24-26        "           F. M. Harris           H. Shore               9/10/37     Discussion and                   "                        "                      "
                                      (RCA Pat.              (RCA Pat. Agt.)                    opinion re other
                                      Dept. Att'y)                                              patents
    Z 2600 B 60           "           W. H. Martin           T. R. Goldsborough     11/22/35    Letter of transmittal            "                        "                      "
                                      (RCA Pat. Agt.)        (Att'y                             with reference
                                                             RCA Pat. Dept.)                    to other
                                                                                                patent
    Z 2308 B 31           "           W. L. Parrott          C. W. McClair          1/31/33     Discussion and                Work product,                "            Non-privileged,
                                      (RCA Pat. Agt.)        (RCA Att'y                         opinion re other              privilege and                             not work product,
                                                             Pat. Dept.)                        application                   opinion                                   opinion
                                                                                                                                                                        properly discoverable
                                                                                                                                                                        here
 
*800
                                                                                                                              Ground of
    Iden.               Type          From                   To                     Date        Sub. Matter                   Withholding             Ruling            Reason
    Z 2327 20, 21       Letter        F. J. Harbaugh         J. G. Norton           12/26/33    Discussion and                Work product,           To be produced    Non-privileged,
                                      (RCA Pat. Agt.)        (RCA Pat. Dept.                    opinion re Smith              privilege and                             not work product,
                                                             Att'y)                             application                   opinion; equal                            opinion
                                                                                                                              availability                              properly discoverable
                                                                                                                                                                        here, not
                                                                                                                                                                        equally available
    Z 2300 C 34           "           C. D. Tuska            J. G. Norton           4/22/43     Letter of transmittal         Work product,               "             Non-privileged,
                                      (RCA Pat. Agt.)        (RCA Pat. Dept.                    of Z 2300                     privilege and                             not work product,
                                                             Att'y)                             C 35-38 containing            opinion                                   opinion
                                                                                                discussion                                                              properly discoverable
                                                                                                and opinion re                                                          here
                                                                                                Smith application
    Z 2300 C 35-38        "           F. B. Stone            C. D. Tuska            4/14/43     Discussion and                Work product,              "              Non-privileged,
                                      (Engineer RCA)         (RCA Pat. Agt.)                    opinion re specifications     privilege and                             not work product,
                                                                                                of                            opinion; equal                            opinion
                                                                                                Smith application             availability                              properly discoverable
                                                                                                                                                                        here, not
                                                                                                                                                                        equally available
    Z 2308 B 28         Memo          W. L. Parrott          RCA Pat. Dept.         4/7/33      Discussion and                     "                      "                    "
                                      (RCA Pat. Agt.)        Files                              opinion re detector
                                                                                                oscillator
                                                                                                tubes with reference
                                                                                                to Smith
                                                                                                application
    Z 1000 B 26         Drawing       F. M. Harris               "                  Undated     Penciled drawing                    "                       "                   "
                                      (RCA Pat. Dept.                                           of circuits and
                                      Atty.)                                                    notations referring
                                                                                                to other
                                                                                                patent
    Z 1000 B 99         Memo          W. A. Tolson           H. D. Gregory          5/29/34     Discussion and                Work product,                  "          Non-privileged,
                                      (Engineer RCA)         (RCA Pat. Dept.                    opinion re claims             privilege and                             not work product,
                                                             Atty.)                             of Tolson application         opinion                                   opinion
                                                                                                                                                                        properly discoverable
                                                                                                                                                                        here
 
*801
                                                                                                                          Ground of
Iden.              Type              From                   To                   Date        Sub. Matter                  Withholding          Ruling             Reason
Z 1000 B 164-165   Memo              T. R. Goldsborough     A. F. Murray         Undated     Pat. Attys.' request         Work product,        To be produced     Non-privileged,
                                     (RCA Pat.              (RCA Engineer)                   for engineers'               privilege and                           not work product,
                                     Dept. Atty.)           et al.                           opinion re                   opinion                                 opinion
                                                                                             claims of application                                                properly discoverable
                                                                                             notations                                                            here
                                                                                             by engineers
Z 2900 C 21        Letter            M. G. Crosby          J. D. Black           7/30/40     Discussion and                     "                     "                     "
                                     (RCA Communications)  (Atty. RCA Pat.                   opinion re Crosby
                                                           Dept.)                            application
Z 2900 C 22          "               J. D. Black           M. G. Crosby          7/24/40     Letter requesting            Work product,               "           Non-privileged,
                                     (Atty. RCA Pat.       (RCA Communications)              documents re                 privilege                               not work product
                                     Dept.)                                                  Crosby application
Z 2900 C 104         "               M. G. Crosby          J. D. Black           10/15/34    Discussion and               Work product,               "           Non-privileged,
                                     (RCA Communications)  (Atty. RCA Pat.                   opinion re Crosby            privilege and                           not work product,
                                                           Dept.)                            by application               opinion                                 opinion
                                                                                                                                                                  properly discoverable
                                                                                                                                                                  here
Z 2900 C 120         "                        "                    "             4/21/32               "                  Work product,               "           Non-privileged,
                                                                                                                          privilege, opinion                      not work product,
                                                                                                                          and equal                               opinion
                                                                                                                          availability                            properly discoverable
                                                                                                                                                                  here,
                                                                                                                                                                  not equally
                                                                                                                                                                  available
Z 1300 B 56-58       "               S. B. Smith           A. W. Vance           12/6/24     Discussion and               Work product,               "                     "
                                     (Atty. RCA            (RCA Engineer)                    opinion re claims            privilege, opinion
                                     Pat. Dept.)                                             of Vance application         and equal
                                                                                                                          availability
Z 1302 C 15-18       "               T. R. Goldsborough    S. B. Smith           6/4/35                "                        "                     "                     "
                                     (Atty.                (Atty. RCA
                                     RCA Pat. Dept.)       Pat. Dept.)
 
*802
                                                                                                                          Ground of
Iden.              Type              From                   To                   Date        Sub. Matter                  Withholding          Ruling             Reason
Z 1500 B 61-63     Memo              S. B. Smith            F. M. Harris         12/13/38    Discussion and               Work product,        To be produced     Non-privileged,
                                     (Atty. RCA             (Atty. RCA                       opinion re claims            privilege and                           not work product,
                                     Pat. Dept.)            Pat. Dept.)                      of Ballard application       opinion                                 opinion
                                                                                                                                                                  properly discoverable
                                                                                                                                                                  here
Z 1500 B 135       Letter            H. D. Gregory          H. J. O. Barton      11/3/32               "                  Work product,               "           Non-privileged,
                                     (Atty. RCA             (RCA Pat. Agt.)                                               privilege, opinion                      not work product,
                                     Pat. Dept.)                                                                          and equal                               opinion
                                                                                                                          availability                            properly discoverable
                                                                                                                                                                  here,
                                                                                                                                                                  not equally
                                                                                                                                                                  available
Z 1500 B 136-137     "               T. R. Goldsborough     A. F. Murray         Undated     Bequest for opinion          Work product,               "           Non-privileged,
                                     (Atty.                 (RCA Engineer)                   re Ballard                   privilege and                           not work product,
                                     RCA Pat. Dept.)        et al.                           application                  opinion                                 opinion
                                                                                                                                                                  properly discoverable
                                                                                                                                                                  here

NOTES

[1] These are not hallmark activities of attorneys. Patent solicitors, agents, and other non-lawyers may practice before the Patent Office. Any citizen although not an attorney may qualify for practice before the Patent Office. Admission for all is by special examination. 35 U.S. C.A.Appendix.

[*] The contrary ruling upon a similar document at the March 1, 1954, hearing (Transcript, p. 33) is reversed since the communication is not privileged under any attorney-client relationship, does not qualify as "work product", is not equally available to plaintiff, and, although an opinion, is properly discoverable.