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Federal Circuit to decide scope of attorney-client privilege waiver en banc
January 26, 2007
The Federal Circuit this afternoon agreed to hear a case to determine the scope of the waiver of attorney-client privilege when advice of counsel is used to defend against a charge of willful infringement. The order in In re Seagate Technology, LLC, which can be found here, invites the parties to brief the following questions:

(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?

The result of this case will have a direct impact on how companies seeking advice of counsel regarding potential patent infringement structure their communications with outside counsel. Briefing will be complete in early April, so no decision is likely for some time, but it will be a case to watch going forward.
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