The court in In re Intel Corp. Microprocessor Antitrust Litig., 2008 WL 2310288 (DDel 6/4/08) deemed defendant Intel waived privilege protection due primarily to defendant's willingness to make records related to custodian interviews avaialble to avoid worldwide depositions of custodians.
The Special Master ruled that Intel had waived work product protection, noting that Intel had agreed to produce, “detailed written description[s] of the preservation issues affecting [every] Intel Custodian, including the nature, scope and duration of any preservation issue(s).” The Special Master continued:
"Intel could have left AMD and the Class Plaintiffs to their own devices, forcing them down the path of protracted world-wide preservation depositions. It did not. Rather it trumpeted its willingness to have AMD, the Class Plaintiffs and the Court informed as to fact work-product gathered and provided “a detailed written description of the information provided by each custodian [to Weil] during the interviews."
Therefore, the Special Master concluded that Intel could not “mask” its agreed-to discovery of custodian information by asserting work product protection with respect to fact work product which, in the Special Master’s view, was at the heart of Intel’s position on its preservation issues.
For the case summary and a link to the decision see here: http://tiny.cc/LeMwF