Apple Inc v Samsung Electronics Co Limited (No 2)

Apple Inc v Samsung Electronics Co Limited (No 2) involved a dispute between two multinational technology companies over patent infringement and licensing of technology essential to mobile telecommunications standards. The proceedings included claims and counterclaims regarding the use of baseband chip set technology and allegations of anticompetitive conduct. Apple claimed that Samsung infringed its patents and engaged in anticompetitive practices by refusing to license the patents on fair terms, while Samsung counterclaimed for patent infringement and sought declarations regarding the validity of its patents. The case involved complex issues of patent law and competition law, including the interpretation of FRAND obligations under international telecommunications standards.

The court was tasked with deciding several legal issues, including whether certain documents were privileged and whether partial disclosure had resulted in the waiver of privilege. Samsung claimed privilege over certain documents, asserting that they were created in reasonable contemplation of litigation and for the purpose of obtaining legal advice. Apple challenged the basis of this claim, arguing that Samsung’s representative lacked personal knowledge of the documents and their creation. Additionally, Apple contended that partial disclosure of privileged documents resulted in a waiver of privilege. The court had to determine whether Samsung's claim for privilege was valid and whether the partial disclosure of certain documents warranted a finding of waiver.

The court found that Samsung's claim for privilege was established for the documents in question, as they were created in reasonable contemplation of litigation and for the purpose of obtaining legal advice. However, the court also determined that privilege had been waived with respect to certain annexures due to partial disclosure. The court examined the nature of the documents and the circumstances of their creation, concluding that there was a real prospect of litigation when the documents were produced. The court rejected Samsung's arguments regarding waiver, finding that the partial disclosure of the documents resulted in the loss of privilege for those specific parts of the documents. The court provided the parties with an opportunity to review the judgment and make submissions on confidentiality before it was made publicly available.

The court vacated Order 2 of the orders made by Cowdroy J on 30 November 2012 and noted that the confidentiality regime agreed to by the parties remained in place. The court's decision highlighted the importance of personal knowledge and the circumstances of document creation in determining the validity of privilege claims, while also underscoring the consequences of partial disclosure in the context of litigation.