Caution: Disclosure of Opinion's Conclusions Waived Attorney-Client Privilege

In re Target Technology (Fed. Cir. 2006, Non-Precedential).

On mandamus, the CAFC affirmed a district court’s discovery order compelling disclosure of three letters between two different law firms and the president of the defendant.

Although such communications are ordinarily protected by attorney-client privilege, the appellate court found that privilege was waived by the President by his statement in a sales letter that "I also asked my patent attorney to conduct a search in the US patent literature, and no potential infringement was found."

Applying 9th Circuit law, the panel fount that the company president’s extrajudicial disclosure that revealed the attorney's conclusion waived privilege to the contents of the letter even though the disclosure did not reveal the details of the privileged communication.

The CAFC was careful to note that the waiver only applied to portions of the communications relating to the disclosed conclusions.

Aside:

• Cite: 2006 U.S. App. LEXIS 26240.
• CAFC Clerks: Please Post ALL Opinions Online: I found this opinion by chance through a LexisNexis search.  The CAFC does a good job of posting its opinions online.  For some unknown reason, however, the court rarely posts its Mandamus orders.  These orders are especially important in cases such as the recent TiVo case where the court granting a temporary stay of the injunction.  The stock market reacted to this order, but because it was not publicly posted, certain insiders may have received the information first.  

Comments

[Thomason]

I wonder what happened with the CAFC's request for comments on their proposed change to the rules respecting unpublished opinions. That topic is no longer active on the CAFC site.

[B]

There is a new federal rule (applied to all federal courts) effective Jan. 1, 2007. See Appellate Rule 32.1 (Citing Judicial Dispositions) (allow citation of unpublished opinions)
available at:
http://www.uscourts.gov/rules/newrules6.html