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Federal Circuit Clarifies Scope of Waiver of Attorney-Client Privilege
and Work-Product Immunity
In In re EchoStar Commc'ns Corp., Misc. Nos. 803, 805, 2006 WL 1149528 (Fed. Cir. May 1, 2006), the U.S. Court of Appeals for the Federal Circuit clarified the extent to which a party waives its attorney-client privilege and work-product immunity when it asserts the advice-of-counsel defense in response to a charge of willful patent infringement. The Federal Circuit directed a Texas district court to vacate an order compelling EchoStar Communications Corp. to produce certain Merchant & Gould law firm documents that were never communicated to EchoStar.
In this case, TiVo Inc. sued EchoStar for willful infringement of U.S. Patent 6,233,389. In response to the allegation of willful infringement, EchoStar relied on the advice-of-counsel defense based on advice provided by in-house counsel prior to the filing of the lawsuit. After the action was filed, EchoStar obtained additional advice from Merchant & Gould, but did not rely on it. TiVo sought production of documents in the possession of EchoStar and Merchant & Gould. The district court found that EchoStar had waived its attorney-client privilege and work-product immunity relating to advice of any counsel, including Merchant & Gould. The district court also 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. In response, Echostar petitioned the Federal Circuit for a writ of mandamus.
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