Oregon Supreme Court Permits Patent Firm to Claim Privilege Over Communications with Internal Counsel

Given the conversation in posts below about interpreting statutes, this case is interesting for reasons beyond the issue involved.  In Crimson Trace Corp. v. Davis Wright Tremaine LLP (Or. May 30, 2014), the court held that a law firm could claim privilege over communications between a lawyer who was concerned about litigating a patent case where one of the firm’s own lawyers was accused of inequitable conduct and the firm’s in-house lawyers.

The court noted that some courts had recognized a “fiduciary exception” to privilege, which basically bars a lawyer who owes a fiduciary duty to a client to assert privilege against it.  However, the court noted that those courts that had recognized this exception were in common law jurisdictions, not ones, like Oregon, where the scope of privilege and its exceptions were set by the legislature.  Given that the legislature had spoken on the subject, the Oregon court held that it was not free to make-up additional exceptions.

Of course, CLS bank will be just like it in that regard. ha, ha.

2 thoughts on “Oregon Supreme Court Permits Patent Firm to Claim Privilege Over Communications with Internal Counsel

  1. :-)

    It would be nice if the Supremes in CLS acknowledge the statute and the 1952 act’s revisions. I know they won’t.

  2. Is the “ha ha” indicating that you think that the Supreme Court of the US will not be, um, ‘judicial’ in its restraint over writing patent law, as the Oregon court was in its restraint?

    And yes, we already have heard from the Court and its no-bones addiction in P0rnetheus about the Court not letting anything make its own implicit writings become dead letters…

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