http://www.thefireofgenius.com/2006/05/09/echostar-redux/ Academic commentary about patent law, i.p. law, creativity, and more Fri, 29 Aug 2008 06:55:44 +0000 http://wordpress.org/?v=2.5 http://www.thefireofgenius.com/2006/05/09/echostar-redux/#comment-2179 The Fire of Genius » EchoStar follow-up: Communications with trial counsel? Sun, 30 Jul 2006 17:04:03 +0000 http://www.thefireofgenius.com/2006/05/09/echostar-redux/#comment-2179 [...] On May 1, 2006, the Federal Circuit ruled on a mandamus petition challenging a trial court’s ruling on the scope of a waiver of attorney-client privilege and work product immunity (a waiver made to use the advice of counsel to rebut a charge that the infringement in the case was willful). The case is In re EchoStar Communications Corp., 448 F.3d 1294 (Fed. Cir. 2006). I’ve blogged it before, focusing on the Federal Circuit’s ” recogniz[ing] at least three categories of work product that are potentially relevant to the advice-of-counsel defense … includ[ing]: (1) documents that embody a communication between the attorney and client concerning the subject matter of the case, such as a traditional opinion letter; (2) documents analyzing the law, facts, trial strategy, and so forth that reflect the attorney’s mental impressions but were not given to the client; and (3) documents that discuss a communication between attorney and client concerning the subject matter of the case but are not themselves communications to or from the client.” Id. at 1302. The first and third categories must, after a waiver, be produced, whereas the second need not be. Id. at 1302-04. [...] […] On May 1, 2006, the Federal Circuit ruled on a mandamus petition challenging a trial court’s ruling on the scope of a waiver of attorney-client privilege and work product immunity (a waiver made to use the advice of counsel to rebut a charge that the infringement in the case was willful). The case is In re EchoStar Communications Corp., 448 F.3d 1294 (Fed. Cir. 2006). I’ve blogged it before, focusing on the Federal Circuit’s ” recogniz[ing] at least three categories of work product that are potentially relevant to the advice-of-counsel defense … includ[ing]: (1) documents that embody a communication between the attorney and client concerning the subject matter of the case, such as a traditional opinion letter; (2) documents analyzing the law, facts, trial strategy, and so forth that reflect the attorney’s mental impressions but were not given to the client; and (3) documents that discuss a communication between attorney and client concerning the subject matter of the case but are not themselves communications to or from the client.” Id. at 1302. The first and third categories must, after a waiver, be produced, whereas the second need not be. Id. at 1302-04. […]

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