Search the Archives           Subscribe           About this News Service           Reader Comments


Archived updates for Tuesday, May 09, 2006

Uncommunicated Law Firm Work Product Protected When In-House Privilige is Waived

In In re EchoStar Communications Corporation (Fed. Cir. May 3, 2006) EchoStar had relied on the advice of its in-house counsel prior to the filing of the patent infringement action by Tivo. After the action was filed, EchoStar obtained additional legal advice from Merchant & Gould but elected not to rely on it. TiVo sought production of documents in the possession of EchoStar and Merchant & Gould in order to explore further EchoStar’s state of mind in determining that it did not infringe the patent.
The district court held that by relying on advice of in-house counsel EchoStar
waived its attorney-client privilege and attorney work-product immunity relating
to advice of any counsel regarding infringement, including Merchant & Gould.
The district court indicated that the scope of the waiver included
communications made either before or after the filing of the complaint and any
work product, whether or not the product was communicated to EchoStar. The
district court also held that EchoStar could redact information related only to
trial preparation or information unrelated to infringement.

Circuit Judge Gajarsa agreed that "when EchoStar chose to rely on the advice of in-house counsel, it waived the attorney-client privilege with regard to any attorney-client communications relating to the same subject matter, including communications with counsel other than in-house counsel, which would include communications with Merchant & Gould." However, "Merchant & Gould work product that was not communicated to EchoStar or does not reflect a communication is not within the scope of EchoStar’s waiver because it obviously played no part in EchoStar’s belief as to infringement."

Here, Merchant & Gould work product that was not communicated to EchoStar or does not reflect a communication is not within the scope of EchoStar’s waiver because it obviously played no part in EchoStar’s belief as to infringement of the ’389 patent. See Steelcase, 954 F. Supp. at 1198-99. It may very well be true, as TiVo suggests, that at times some parties would communicate draft opinion letters or the contents thereof to the client confidentially in order to avoid disclosing that communication during potential discovery if and when the attorney-client privilege is waived, but we cannot eviscerate the legitimate policies of the work-product doctrine and chill the principles of our adversary system as a whole on account of the possibility that, from time to time, there may be occurrences of ethical ransgressions.
In sum, the advice-of-counsel defense to willfulness requires the court to decide, inter alia, whether counsel’s opinion was thorough enough to "instill a belief in the infringer that a court might reasonably hold the patent is invalid, not infringed, or unenforceable." Ortho Pharm., 959 F.2d at 944. If a Merchant & Gould document was not communicated to EchoStar or if a Merchant & Gould document does not reference a communication between Merchant & Gould and EchoStar, its relevant value is outweighed by the policies of the work-product doctrine. Thus, it was an abuse of discretion for the district court to determine that the scope of the waiver of privilege extended to such documents.

    (3)comment(s)     translate     More Updates     Send    

3 Comments:

Blogger Dongdong Weng said...

20156.12dongdong
nhl jerseys
replica watches
cheap air max
lululemon
tory burch outlet
michael kors outlet
burberry scarf
oakley sunglasses outlet
toms outlet
coco chanel
hollister
louis vuitton
cheap nfl jerseys
michael kors
coach outlet
tods shoes
christian louboutin outlet
air max 90
michael kors outlet
michael kors
gucci outlet
true religion
rolex watches outlet
michael kors
toms outlet
chanel handbags
michael kors outlet
ray ban sunglasses
coach factory outlet
michael kors outlet

June 12, 2015 5:38 AM  
Blogger Zheng junxai5 said...


zhengjx20160613
nike free 5.0
michael kors outlet
cheap ray ban sunglasses
air jordan femme
christian louboutin outlet
vans outlet
replica rolex watches
hollister clothing
coach outlet
tory burch outlet online
christian louboutin sale
juicy couture
coach outlet
air jordan shoes
oakley canada
michael kors handbags
michael kors outlet clearance
michael kors handbags
rolex watches
toms outlet
coach outlet store online clearances
michael kors handbags
coach outlet online
ladies cartier watches
nike trainers sale
coach factory outlet online
copy watches
discount jordans
christian louboutin shoes
coach factory outlet
coach factory outlet
oakley outlet
louis vuitton outlet online
louis vuitton handbags
red bottom shoes
michael kors outlet
kate spade outlet
louis vuitton purses
nfl jerseys

June 12, 2016 10:24 PM  
Blogger Zheng junxai5 said...


zhengjx20160613
nike free 5.0
michael kors outlet
cheap ray ban sunglasses
air jordan femme
christian louboutin outlet
vans outlet
replica rolex watches
hollister clothing
coach outlet
tory burch outlet online
christian louboutin sale
juicy couture
coach outlet
air jordan shoes
oakley canada
michael kors handbags
michael kors outlet clearance
michael kors handbags
rolex watches
toms outlet
coach outlet store online clearances
michael kors handbags
coach outlet online
ladies cartier watches
nike trainers sale
coach factory outlet online
copy watches
discount jordans
christian louboutin shoes
coach factory outlet
coach factory outlet
oakley outlet
louis vuitton outlet online
louis vuitton handbags
red bottom shoes
michael kors outlet
kate spade outlet
louis vuitton purses
nfl jerseys

June 12, 2016 10:30 PM  

Post a Comment

<< Home