From either perspective, if Mr. Witte's advice was sought, or given, for the purpose of determining that CSI should remove JRPC before Plaintiffs figured out they had a claim for the copying of that copyrighted software, or to otherwise prolong illegal copying, or to otherwise mislead Plaintiffs with respect to the copying of JRPC or the fact that CSI did not itself have a license to copy PowerRPC, then communications regarding that advice are discoverable under the crime-fraud exception to the attorney client privilege because made to further or conceal a continuing or contemplated crime and/or fraud. In re Napster, Inc. Copyright Litig. 479 F 3d 1078, 1090 (9th Cir. 2007), see also United States v. Zolin, 491 U.S. 554, 563, 109 S. Ct. 2619, 2626 (1989) ("It is the purpose of the crime-fraud exception to the attorney-client privilege to assure that the "seal of secrecy," ibid., between lawyer and client does not extend to communications "made for the purpose of getting advice for the commission of a fraud" or crime."), In re Green Grand Jury Proceedings, 492 F 3d 976, 979 (8th Cir. 2007), In re Richard Roe, Inc., 68 F 3d 38, 40 (2d Cir. 1995). The crime-fraud exception applies to work product as well as the privilege. In re Green Grand Jury Proceedings, supra, 492 F 3d, at 979.
In circumstances such as these, the appropriate procedure is for the Court to conduct an in camera review of Mr. Witte's communications with CSI regarding the removal of Netbula software from the infringing software, all of which, according to him, occurred prior to this lawsuit, to determine whether the crime fraud exception applies. United States v. Zolin, supra, 491 U.S., at 568 ("In our view, the costs of imposing an absolute bar to consideration of the communications in camera for purpose of establishing the crime-fraud exception are intolerably high."), see also In re Green Grand Jury Proceedings, supra, 492 F 3d, at 979 (in camera review conducted).
Equal Justice » Chordiant Case » Lawsuit » Motion Compel Discovery Responses From Derek Witte Under Crime-Fraud Exception