In Re Seagate Technology (Fed. Cir. 2007).
The Federal Circuit has decided sua sponte to an en banc hearing addressing the following questions:
- Should a party’s assertion of the advice of counsel defense to willful infringement extend waiver of the attorney-client privilege to communications with that party’s trial counsel? See In re EchoStar Commc’n Corp., 448 F.3d 1294 (Fed. Cir. 2006).
- What is the effect of any such waiver on work-product immunity?
- Given the impact of the statutory duty of care standard announced in Underwater Devices, Inc. v. Morrison-Knudsen Co., 717 F.2d 1380 (Fed. Cir. 1983), on the issue of waiver of attorney-client privilege, should this court reconsider the decision in Underwater Devices and the duty of care standard itself?
- As I suggested earlier this week, the CAFC has begun to test publication of merits briefs on its www.cafc.uscourts.gov website.
- The Order indicates that Amici will be entertained “in accordance with [FRAP] 29 and Federal Circuit Rule 29.” This likely means that the court will grant leave to all amici briefs, although that meaning is unclear.