EchoStar and Underwater Devices Under En Banc Reconsideration
In In Re Seagate Technology (January 26, 2007) the Federal Circuit ordered the following questions to be briefed for en banc consideration:
- Should a party's assertion of the advice of counsel defense to willful infringement extend waiver of the attorney-client privilege to communications with that party's trial counsel? See In re EchoStar Commc'n Corp., 448 F.3d 1294 (Fed. Cir. 2006).
- What is the effect of any such waiver on work-product immunity?
- Given the impact of the statutory duty of care standard announced in Underwater Devices, Inc. v. Morrison-Knudsen Co., 717 F.2d 1380 (Fed. Cir. 1983), on the issue of waiver of attorney-client privilege, should this court reconsider the decision in Underwater Devices and the duty of care standard itself?
En banc (latin for on the bench) or "in bank" is a term used to refer to the hearing of a case by all the judges of a court. Appellate courts in the United States sometimes grant rehearing en banc to reconsider a decision of a panel of the court (a panel generally consisting of only three judges), where the case concerns a matter of exceptional public importance or the panel's decision appears to conflict with a prior decision of the court.