August 31, 2007
Waiver Not Extended
A company retained opinion counsel to render a series of three opinions regarding possible patent infringement. When a claim of infringement was later brought, it provided to the opposing counsel the opinions along with the associated work product and offered opinion counsel for deposition in order to negate the claim of bad faith infringement. The trial court concluded that the waiver of attorney-client privilege with respect to opinion counsel extended to trial counsel and ordered discovery access to trial court's confidential communications and work product.
The United States Court of Appeals for the Federal Circuit held that the privilege had not been waived with respect to trial counsel. Opinion and trial counsel had operated independently of each other: "...we conclude that the significantly differing functions of trial counsel and opinion counsel advises against extending the waiver to trial counsel." Trial counsel, unlike opinion counsel, is "engaged in an adversarial process." However, the court did "not purport to set out an absolute rule." (Mike Frisch)
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