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:

1. 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).


2. What is the effect of any such waiver on work-product immunity?


3. 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?

Briefs of amici curiae will be entertained in accordance with Federal Rule of Appellate Procedure 29 and Federal Circuit Rule 29.

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.