In what could well be “the largest electronic production in history,” Intel began to experience some preservation issues, and the plaintiffs, in order to test Intel’s assertions that the lapses in its efforts were “misunderstandings or errors by individual employees” and that its “investigation has revealed no instance of deliberate deletion to deny plaintiffs access to information responsive to allegations in the Complaint,” sought notes and other documents subject to work product. Intel agreed (with some dispute over the precise scope of the stipulation) to produce summaries (which Intel likened to Interrogatory Responses) outlining the underlying documentation of efforts. Examining much of the caselaw on partial and selective waiver, the court concluded (at least with respect to “fact” work product) that: “Intel decided to include in its production to the parties and in its filings with the court the summaries. By so doing, Intel placed the accuracy and validity of the information contained in these summaries at issue, thus waving the attorney-client privilege on the underlying documents. To conclude otherwise would place Intel in the position of being able to use its sword to assert facts while at the same time shield Plaintiffs and the Court from the accuracy of Intel’s” assertions. The court also went on to examine the caselaw surrounding work product, and compelled production of “fact” work product, as distinguished from “core” work product. See In re Intel Corp. Microprocessor Antitrust Lit., No.05-1717, 2008 WL 2310228 (D.Del. June 4, 2008).
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