Journal article
INTENTIONAL WAIVERS OF PRIVILEGE AND THE OPINION OF COUNSEL: CAN THE SCOPE OF DISCLOSURE BE MANAGED?
Santa Clara Computer and High Technology Law Journal, Vol.20, pp.765-1139
01 Mar 2004
Abstract
In any given patent dispute, the protections afforded by the attorney-client privilege and work product doctrines are foundational assumptions when documentation is created and client communications take place. The purpose of each doctrine is to encourage "full and frank communication" between lawyer and client, 1 and afford attorneys the opportunity to permit thorough trial preparation without the fear that such material will become available to opposing counsel through discovery. 2 Therefore, memorandum, e-mails and transcribed voicemails often contain sensitive information created based on the parties' belief that the sensitive information will not become available to opposing counsel. However, when creating such sensitive documentation, attorneys may not always carefully consider the fact that the sensitive material may later be displayed - larger than life - to a jury examining whether their client has engaged in willful patent infringement. At first blush, it may be difficult to conceive of circumstances under which such protections would be voluntarily waived. However, an accused infringer seeking to rely on an "advice of counsel" defense to a charge of willful infringement may choose to do so as a necessary price to pay to obtain the benefits of an advice of counsel defense. Generally, prior to invoking an advice of counsel defense, a client will engage opinion counsel, who is asked to consider the patent claims and the potentially infringing process, method or device, and to provide an independent, informed legal opinion as to whether infringement has occurred or whether ...
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Details
- Title
- INTENTIONAL WAIVERS OF PRIVILEGE AND THE OPINION OF COUNSEL: CAN THE SCOPE OF DISCLOSURE BE MANAGED?
- Creators
- Amy L. Landers
- Publication Details
- Santa Clara Computer and High Technology Law Journal, Vol.20, pp.765-1139
- Publisher
- School of Law, Santa Clara University Santa Clara Computer and High Technology Law Journal
- Resource Type
- Journal article
- Language
- English
- Academic Unit
- Thomas R. Kline School of Law
- Identifiers
- 991021866839304721