En Banc Panel to Determine Scope of Opinion Waiver

In Re Seagate Technology (Fed. Cir. 2007).

The Federal Circuit has decided sua sponte to an en banc hearing addressing 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?

DOCS

• En Banc Order
• Petition
• Opposition
• Reply

NOTE:

• As I suggested earlier this week, the CAFC has begun to test publication of merits briefs on its www.cafc.uscourts.gov website.
• The Order indicates that Amici will be entertained “in accordance with [FRAP] 29 and Federal Circuit Rule 29.” This likely means that the court will grant leave to all amici briefs, although that meaning is unclear.