CORBIS CORPORATION v. STONE
Court of Appeals of Washington, Division One.
Filed: March 26, 2012.
E. Testimony regarding the parties' understanding of the terms of the Development Agreement.
Corbis also claims the trial court erred by permitting Steve Stone to testify as to his subjective understanding of the terms of the Development Agreement, specifically the definition of Jazz Service, which the judge hearing pre-trial motions previously ruled was unambiguously defined in the Agreement. But the two citations to the transcript given in support of this argument do not show the trial court permitted such testimony. Indeed, a review of all of Stone's testimony shows the trial court scrupulously made sure Stone did not so testify. In fact, at one point when counsel appeared to be leading Stone toward such testimony, counsel for Corbis objected, and in a sidebar, the trial court directed counsel to cease that line of questioning and it did not progress further. Moreover, even if Stone made a comment as to his understanding of the definition of Jazz Service, it is difficult to see how it caused any prejudice; the jury was instructed on the definition of Jazz Service, and the instruction reflected exactly the definition in the contract and in the pre-trial ruling:
"Jazz Service," as referred to in the Development Agreement, means: (i) those sets of technologies which enable the injection and removal of handles into Digital Objects; (ii) those necessary technologies to manage these handles to insure their persistence and quality; and (iii) the necessary technologies, which, when added to a web crawler, search for and find handleized Digital Objects.
We find no error on this issue.
F. Alleged adverse inferences from Corbis' assertion of the attorney-client privilege.
Corbis also argues that InfoFlows' counsel "repeatedly encouraged the jury to speculate about the content of communications for which Corbis had properly asserted the attorney-client privilege, and the reasons the privilege had been asserted." We disagree. Corbis cites to five passages in the record on this issue, but none of them shows counsel encouraging the jury to speculate about the content of privileged communications.
For two of the examples, it is clear from reading the transcript that counsel for InfoFlows simply sought to elicit testimony explaining that the jury does not get to see what is blacked out in the partially redacted exhibits he was using. In the third example, one of Corbis' witnesses was cross-examined as to why he sent Stone's materials to an outside patent attorney. The fourth example is nothing more than questions to Weiskpof about a non-privileged email from Corbis' counsel to Stone. And, the fifth example is simply to a passage in InfoFlows' closing argument, but nowhere in that passage does counsel discuss the content of privileged communications. We reject this argument.