United States District Court, W.D. Texas, Austin Division
SPARKS SENIOR UNITED STATES DISTRICT JUDGE
REMEMBERED on this day the Court reviewed the file in the
above-styled cause, and specifically Defendants Barco, Inc.
and Barco, N.V. (collectively, Barco)'s Motion to Strike
Privileged Information [#230], Plaintiff Richard
Belliveau's Redacted Response [#235] in opposition,
Belliveau's Motion to File Unredacted Response Under Seal
[#235], Barco's Response [#236] in opposition to the
Motion to File Under Seal, and, finally, Barco's Reply
[#240] in support of its Motion to Strike. Having reviewed
the documents, the governing law, and the file as a whole,
the Court now issues the following opinion and orders.
Belliveau, an inventor, cofounded a company, High End Systems
(High End), that specializes in complex lighting and
projection systems. Order of January 18, 2019 [#197] at 1-4.
During his time at High End, Belliveau granted High End an
exclusive license to use his IP. Id. In exchange for
this license, High End agreed to pay royalties to Belliveau
and to use commercially reasonable efforts to commercialize
his IP. Id.
2007, Barco bought High End. Id. Ten years later, in
2017, Barco began to explore a possible sale of High End to a
third-party. Id. As the sales process progressed,
Belliveau learned that the third-party purchaser did not
intend to allow Belliveau to stay on as CTO, and rather than
stay on as a consultant, Belliveau resigned. Id.
Shortly after Belliveau resigned but before the sale was
consummated, High End granted Barco a sublicense to use
Belliveau's IP. Id.
lawsuit, Belliveau alleges Barco used its control over High
End to extract a sublicense to Belliveau's IP for a price
far below market value. Id. Following several rounds
of dispositive motions, Belliveau's remaining claims
allege Barco committed constructive fraud and fraud by
nondisclosure when it extracted the sublicense from High End.
Id. at 16. Belliveau also contends Barco breached
various fiduciary duties in securing the sublicense.
The Present Discovery Dispute
March 14, 2019, Barco moved to strike two sentences from a
filing made by Belliveau on the ground the sentences
contained privileged information. Mot. Strike [#230] at 3.
Belliveau then filed a redacted response explaining why he
believed the information in question was not privileged.
Public Mot. Seal [#235]. When Belliveau moved to file an
unredacted version of this response under seal, Barco opposed
the motion on the ground the unredacted response also
contained privileged information and urged to Court to rely
solely on the redacted response in ruling on the motion to
strike. Resp. Mot. Seal [#239] at 4-9. Both the motion to
strike and the motion to file under seal are now ripe for
moves to strike two sentences from one of Belliveau's
filings on the ground the sentences contain privileged
information. Mot. Strike [#230] at 3. Barco argues the Court
already ruled this information is privileged in the course of
ruling on Belliveau's previous motions to compel the
production of communications between himself and Barco's
in-house counsel. See Mot. Strike [#230] at 4-6, 7.
In turn, Belliveau argues the two disputed sentences were
derived solely from Belliveau's summary judgment
declaration, which is not privileged. Resp. Mot. Strike
[#235] at 5.
Court denies Barco's motion to strike because there is no
indication that Belliveau's pleading borrowed from or
relied upon Barco's privileged communications. To the
contrary, the disputed sentences appear to have been derived
entirely from Belliveau's declaration. The declaration
"[Barco's lawyer] made representations to me in
these communications regarding (a) the extent to which I
would be kept apprised of the times of any sale . . . and (b)
my role in the approval of any such terms of sale. ... I
trusted and relied on [these] representations; [Barco's
attorneys] had been representing my interests in licensing
the Belliveau IP for years. I fully engaged in the [sale]
process . . . with the understanding that I would be included
in the decision-making on any transaction that would impact
Resp. Mot. Summ. J. [#148-2] Belliveau Decl. at 3. The
disputed sentences at issue here convey ...