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When the U.S. Court of Appeals for the Federal Circuit decided the case of In re EchoStar Communications Corp., 448 F.3d 1294 (Fed. Cir. 2006), last May, it provided clarification in an area of uncertainty concerning the proper scope of the waiver of the attorney-client privilege and work-product immunity in cases in which parties accused of patent infringement rely on opinions of counsel to defend against claims of willful infringement. Specifically, the EchoStar decision excluded certain categories of work product from the waiver — namely documents that reflect the opinion attorney’s mental impressions but were not provided or communicated to the client.

In the months since EchoStar was decided, however, district courts applying the EchoStar decision have arrived at inconsistent rulings regarding two other aspects of the scope of the waiver. The first is whether the waiver extends to litigation counsel communications and work product. The second is whether the scope of the subject-matter waiver extends to all willfulness defenses — i.e., validity, enforceability and infringement — even when the subject matter of the underlying opinion relied upon by the accused infringer is limited only to a subset of those defenses (e.g., infringement only).

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