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May 10, 2006

Discovery Chill

The wake of the CAFC ruling May 4 regarding privilege & discovery in TiVo v. EchoStar is even now being felt. The trend will be for law firms and in-house counsel to be very circumspect in their communications, even internally, surrounding patent infringement opinions; a lot less will be discoverable documentation, email included.

In Ampex v. Eastman Kodak, on May 9, in a patent suit in Delaware court, Ampex requested the trial judge to order further document production relating to opinion counsel provided to Eastman Kodak, properly citing the TiVo v. EchoStar precedent, and being careful not the overstep the bounds laid out in that ruling. Eastman Kodak naturally resists, particularly in providing a requested privilege log of trail counsel communications.

The Ampex scenario will likely be replayed in most cases where opinion counsel was relied upon. Trial court judges will grapple in determining exactly where to draw the line case by case, but fortunately, the ruling of TiVo v. EchoStar draws a bright line in principle.

Posted by Patent Hawk at May 10, 2006 11:48 AM | Litigation