Intentional Waivers of Privilege and the Opinion of Counsel: Can the Scope of Disclosure be Managed

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, and afford attorneys the opportunity to permit thorough trial preparation without the fear that such material will become available to opposing counsel through discovery. 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.

Keywords: Waivers of Privilege, Attorney-Client Privilege, Patent dispute