United States Fourth Circuit

In an action arising from an underlying patent infringement suit involving the Blackberry communication device, district court's judgment upholding the decision by the Department of Justice (DOJ) to deny plaintiff's request under the Freedom of Information Act for records of communications between the agency and the defendant is affirmed in part, vacated in part and remanded where: 1) district court's conclusion that privileged communications between DOJ and the defendant subsequent to their common interest agreement on a particular date are protected from disclosure by FOIA Exemption 5 is affirmed; 2) district court's conclusion that a common interest relationship existed between the defendant and the DOJ from March 2005 until the date of the agreement is vacated; and 3) on remand, the district court should determine the point in time when DOJ decided that the public's interest converged with defendant's interest in opposing broad injunctive relief, that it wanted defendant to prevail in its litigation, and that it would assist defendant in doing so.

Appellate Information

• Decided 01/04/2010
• Published 01/04/2010

Judges

• Before WILKINSON and MICHAEL, Circuit Judges, and IRENE M. KEELEY, United States District Judge for the Northern District of West Virginia, sitting by designation.

Court

• United States Fourth Circuit

Counsel

• For Appellees:
  
• ARGUED:Edward Peter Noonan, Hunton & Williams, LLP, Richmond, Virginia, for Appellant. Robert P. McIntosh, Office of the United States Attorney, Richmond, Virginia, for Appellee. ON BRIEF:John Jay Range, Hunton & Williams, LLP, Washington, DC, for Appellant. Dana J. Boente, Acting United States Attorney, Richmond, Virginia, for Appellee.