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`United States: Federai Circuit Clarifies the Scope of the Priviiege Waiver when Relying an
`Opinion of Counsel Mondaq Business Briefing May 22, 2006
`'
`
`Copyright 2006 Mondaq Ltd.
`All Rights Reserved
`Mondaq Business Briefing
`
`May 22, 2006
`
`LENGTH: 973 words
`
`HEADLINE: United States: Federal Circuit Clarifies the Scope of the Privilege Waiver When
`Relying on Opinion of Counsel
`
`BYLINE: By Blair Jacobs and Katherine R. Lahnstein
`
`BODY:
`
`.
`
`In a decision handed down on May 1, 2006, the Federal Circuit addressed the breadth of
`waiver that attaches to attorney-client privilege and work-product immunity when a litigant
`relies on an opinion of counsel as a defense to willfulness. In re Echostar Communications,
`2006 U.S. App. LEXIS 11162 (Fed. Cir. 2006). The Federal Circuit opinion addressed the split
`among the district courts on this issue and sought to clarify this oft-litigated and potentially
`perilous area of patent law.
`
`Tivo sued Echostar for allegedly infringing its U.S. Patent No. 6,233,389. As is typically the
`case, Tivo also alleged willful infringement. In opposing this allegation of willful infringement,
`Echostar asserted reliance on advice of counsel, based on an opinion "formed by in—house
`counsel and conveyed to Echostar executives." Id. at *8. This in-house opinion was created
`before the action was filed. After the action was filed, Echostar obtained a second opinion
`from its outside counsel, Merchant & Gould. Echostar opted not to rely on that opinion and,
`accordingly, Merchant B: Gould never transmitted it to Echostar.
`
`Tivo sought production of privileged documents relating to the opinions. EchoStar resisted
`the disclosure of any privileged materials other than the opinions of counsel. In fact,
`Echostar first argued that because the opinion it relied upon was an "lnternaI investigation
`involving in-house engineers and in-house counsel" it was legally distinct, and not subject to
`the same waiver as "legal opinions commissioned at a later date from outside lawyers." Id.
`The Federal Circuit found this to be a meritless argument, holding that an opinion from in-
`house counsel was no different from an opinion of outside counsel.
`
`Echostar next argued that the district court's compulsion order cast too wide a net by
`including within the waiver's scope documents never communicated by Merchant & Gould
`(the attorney) to Echostar (the client). The district court had held that by relying on advice of
`counsel, Echostar waived attorney—client privilege and attorney work—product immunity
`
`1701
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`

`
`relating to advice of any counsel regarding infringement. Also, the district court held that the
`scope of the waiver included communications made either before or after the filing of the
`complaint and any work-product, whether or not such product was communicated to
`Echostar.
`
`The Federal Circuit focused its analysis primarily on the scope of waiver issue. The Federal
`Circuit speculated that the underlying cause of the district court casting such_ a wide net was,
`at least in part, a circuit split on the treatment of work-product documents, particularly work-
`product that is never communicated to the client. Id. at *10.
`
`The Court explained that work-product immunity “can protect documents and tangible things
`prepared in anticipation of iitigation_ that are both non-privileged and relevant." Id. at ‘"15.
`From a policy perspective, work-product immunity is intended ‘to protect the thoughts and
`strategies of an attorney, thereby promoting a fair and efficient adversarial process. Id. Thus,
`while work-product can be waived, such waiver must be balanced against the important
`objective of promoting counsel to record their thoughts and advice. The waiver therefore
`extends to work-product concerning the same subject matter as the disclosed work-product,
`and only factual or non-opinion work-product can be waived. Id. (citation omitted.)
`
`The Court went on to provide some fairly clear guidance on the scope of work-product
`waiver. The Court first recognized three categories of work-product relevant to the advice-of-
`counsel defense:
`
`(1) documents that embody a communication between the attorney and client concerning the
`subject matter of the case, such as a traditional opinion letter;
`
`(2) documents analyzing the law, facts, trial strategy, and so forth that reflect the attorney's
`mental impressions but were not given to the client; and
`
`(3) documents that discuss a communication between attorney and client concerning the
`subject matter of the case but are not themselves communications to or from the client.
`
`Id. at *19.
`
`with respect to the first category, the Court reiterated "that when a party relies on the
`advice—of-counsel as a defense to willful infringement the party waives its attorney-client
`privilege for all communications between the attorney and client [relating to the same
`subject matter], including any documentary communications such as opinion letters and
`memoranda." Id.
`
`As to the second category, the Court clarified that these communications were not waived
`because they do not provide insight into the infringer's state of mind. "It is what the alleged
`infringer knew or believed, and by contradistinction not what other items counsel may have
`prepared but did not communicate to the client, that informs the court of an infringer's
`wil|fuiness.“ Id. at *22.
`
`Finally, the Court noted that the third category fell somewhere in between, and it would be a
`question of the contents of the document in each instance. Nevertheless, the Court was clear
`that documents could be waived where the content of the documents had been
`communicated to the client.
`
`The Federal Circuit's ruling will hopefully lend guidance to what has been a particularly murky
`area of the law. One point is clear: if you do not want counsel's work-product brought front
`and center in a case involving willfuiness allegations, such work-product should not be
`disclosed or discussed with the client in any manner.
`
`1702
`
`

`
`2006 Sutherland Asbili 8: Brennan LLP. All Rights Reserved.
`
`This article is for informational purposes and is not intended to constitute legal advice.
`
`Sutherland hshill & Brennan
`1215 Pennsylvania Avenue, NW
`washingcan, DC
`20004-2415
`UNITED STATES
`E-mail:
`infoGaab1aw.cam
`URL:
`www.sah1aw.com
`
`(C) Mondaq Ltd, 2006 - Tel. +44 (0)20 8544 3300 - http:,{(wwgu_.mondag.corn
`
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`SATELLITE WEEK Apffl 03, 2006 Monday
`
`Copyright 2006 Warren Publishing, Inc.
`All Rights Reserved
`SATELLITE WEEK
`
`April 03, 2006 Monday
`
`SECTION: SATELLITE TV
`
`LENGTH: 2 13 words
`
`BODY:
`
`A set of jurors in Tex. will learn more than they ever wanted to know about PVR gear, as
`Echostar and TM: debate whether Echostar stole TiVo's "time warp" patent in an
`infringement case that opened last week in Marshall.
`
`The case hinges on whether EchoStar's DVR uses Tivo technology. TiVo wants unspecified
`but large damages, pegged at $100 million by analysts. An Echostar motion to transfer the
`TiVo case to federal court in Cal. was denied. News reports said the federal courts in Marshall
`and other east Tex. cities are known for fast work on patent cases. An Echostar
`spokeswoman had no comment on the lawyers‘ opening statements. Echostar said in a
`March 10-K SEC filing it "intends to vigorously defend this case." But if Dish Network loses
`the time~warp fight, It may face substantial damages -- triple what jurors flat as lost TlVo
`revenue -- "and/or an injunction that could require us to materially modify certain user-
`friendly features that we currently offer consumers," the Echostar filing warned. The Tivo
`suit alleges infringement of U.S. Patent 6,233,389 for pausing live TV. An EchoStar suit
`against TiVo and Humax U.S.A. alleges infringement of 4 U.5. patents on PVR technology. An
`Echostar spokeswoman said she didn't know what the 4 countersuit patents protect.
`
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`CONSUMER ELECTRONICS DAILY March 30, 2006 Thursday
`
`Copyright 2006 Warren Publishing, Inc.
`All Rights Reserved
`CONSUMER ELECTRONICS DAILY
`
`March 30, 2006 Thursday
`
`SECTION: COURTS
`
`LENGTH: 226 words
`
`_
`
`BODY:
`
`A jury in Tex. will learn more than jurors ever wanted to know about DVR gear, as Echostar
`and Tivo argue as to whether Echostar stole TiVo's "time warp" patent, in an infringement
`case that opened wed.
`
`in Marshall, Tex. The case hinges on whether EchoStar's DVR uses TlVo technology. Tlvo
`wants heavy but undisclosed damages, pegged at $100 million by analysts. An Echostar
`motion to transfer the TiVo case to federal court in Cal. was denied. News reports said the
`federal courts in Marshall and other east Tex. cities are known for fast work on patent cases.
`An Echostar spokeswoman had no comment on the day's opening remarks by lawyers for
`both sides. Echostar said in a March 10K filing it "intends to vigorously defend this case." But
`should Dish Network lose the time warp fight, it may face substantial damages -- perhaps 3
`times what jurors fix as lost Tivo revenue, the Echostar filing warned. Damages could include
`"treble damages and/or an injunction that could require us to materially modify certain user-
`friendly features that we currently offer consumers," Dish said. The Tivo suit alleges
`infringement of U.S. Patent No. 6,233,389 for pausing live TV. An Echostar suit against TlVo
`and Humax U.S.A. alleges infringementof 4 U.S. patents on DVR technology. An Echostar
`spokeswoman said she didn't know what the 4 countersuit patents protect.
`
`'
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`COMMUNICATIONS DAILY March 30, 2006 Thursday
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`COMMUNICATIONS DAILY
`
`March 30, 2006 Thursday
`
`SECTION: SATELLITE
`
`LENGTH: 226 words
`
`BODY:
`
`A jury in Tex. will learn more than jurors ever wanted to know about DVD. gear, as Echostar '
`and Tivo argue as to whether Echofitar stole TiVo's "time warp" patent, in an infringement
`case that opened Wed.
`
`in Marshall, Tex. The case hinges on whether EchoStar's DVR uses Tivo technology. Tivo
`wants heavy but undisclosed damages, pegged at $100 million by analysts. An Echostar
`motion to transfer the TiVo case to federal court in Cal. was denied. News reports said the
`federal courts in Marshall and other east Tex. cities are known for fast work on patent cases.
`An Echostar spokeswoman had no comment on the day's opening remarks by lawyers for
`both sides. Echostar said in a March 10K filing it "intends to vigorously defend this case." But
`should Dish Network lose the time warp fight, it may face substantial damages —— perhaps 3
`times what jurors fix as lost TiVo revenue, the Echostar filing warned. Damages could include
`"treble damages and/or an injunction that could require us to materially modify certain user-
`friendly features that we currently offer consumers," Dish said. The Two suit alleges
`infringement of U.S. Patent No. 6,233,389 for pausing live TV. An Echostar suit against TiVo
`and Hurnax U.S.A. alleges infringement of 4 U.S. patents on DVR technology. An Echostar
`spokeswoman said she didn't know what the 4 countersuit patents protect.
`
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`1709
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`
`Til/o Joins the Collection of Nation's Most Influential Inventions; United States Patent and
`Trademark Office Museum Honors Ideas That Improve Lives PR Newswire US July 20, 2005
`Wednesday 12:00 PM GMT
`
`Copyright 2005 PR Newswire Association LLC.
`All Rights Reserved.
`PR Newswire US
`
`July 20, 2005 Wednesday 12:00 PM GMT
`
`LENGTH: 583 words
`
`HEADLINE: TiVo Joins the Collection of Nation's Most Influential Inventions;
`United States Patent and Trademark Office Museum Honors Ideas That Improve Lives
`
`DATELINE: ALVISD, Calif. July 20
`
`BODY:
`
`ALVISO, Calif., July 20 /PRNewswire-FirstCall/ -- Joining the esteemed ranks of inventions
`such as the toothbrush, seat belt, computer and alarm clock, several TiVo inventions are
`featured in a new year-long exhibit at the United States Patent and Trademark Office
`(USPTO) Museum in Alexandria, Va., beginning July 13.
`
`Designed to celebrate the nation's most influential inventions, "The Invention Machine: A Day
`in My Life" exhibit features everyday inventions that impact and improve people's daily lives,
`including the TiVo(R) digital video recorder (DVR) and the Tivo Service. The digital lifestyle
`that was launched by TiVo's creation has brought choice and control to the lives of millions of
`Americans.
`
`"It is an honor for Tivo, and for me personally, to be placed in the US Patent and Trademark
`Office Museum," said James Barton, Senior Vice President of Research and Development,
`Chief Technology Officer, and co-founder of TlVo Inc. "It isn't every day that an invention is
`embraced by millions of people. To be featured in such a terrific showcase is a great day for
`TiVo."
`
`Depicted in a three-dimensional virtual diorama, the TiVo display showcases a living room
`decorated with TiVo trademarked logos and icons on everything from rugs to wall decor. Set
`to upbeat music, a video loop displayed on a TV on the "living room" wall highlights the
`benefits of TlVo's Time Warp patent (U.S. Patent No. 6,233,389), which covers TiVo's
`proprietary technology for efficiently storing and playing back TV shows. The video loop also
`highlights other patented aspects of TiVo's DVR and service, including novel ways of
`controlling live TV, TiVo's intuitive user interface and TiVo's award-winning remote control.
`
`The USPTO Museum was designed and built by experts at Invent Now, a non-profit
`
`1710
`
`

`
`organization formed to recognize and encourage invention and creativity and curators of the
`National Inventor's Hall of Fame. "Our goal with the USPTO Museum was to create a fun,
`thought-provoking, and memorable experience. The Tivo exhibit is sure to be a favorite
`among guests," said Mitch Scott, Senior Designer for Invent Now. "We are showing visitors of
`all ages how imagination can be made real."
`'
`
`Ranging from interactive activities and touch-screen technology to artifacts and videos, the
`USPTO Museum provides a high-impact educational experience and is immediately visible to
`all those passing through the atrium of the United States Patent and Trademark Office. The
`new exhibit opened to the public on Wednesday, July 13, 2005. More information is available
`at htt_t_:'.([www.uspto.gov( .
`
`About TiVo Inc.
`
`Founded in 1997, Tivo (NASDAQ:TIVO), a pioneer in home entertainment, created a brand
`new category of products with the development of the first digital video recorder (DVR).
`Today, the company continues to revolutionize the way consumers watch and access home
`entertainment by making TiVo the focal point of the digital living room, a center for sharing
`and experiencing television, music, photos and other content. TiVo connects consumers to
`the digital entertainment they want, where and when they want it. The company is based in
`Alviso, Calif.
`-
`
`NOTE: Tivo is a registered trademark of Tivo Inc. or its subsidiaries in the United States and
`other jurisdictions.
`
`CONTACT: Krista Wierzbicki of TiVo Inc., +1-408-519-9438, or
`kwierzbicki@tivo.ggm ; or Delia Spears of Weber Shandwick, +1-952-346-6303, or
`gspears@webershandwigk.cg_m , for TiVo Inc.
`
`Web site: htt
`
`: www.tivo.com
`
`SOURCE Tivo Inc.
`
`UitL: flp:([www.,t_irnewswire.com
`
`NOTES: NOTE TO EDITORS: Tivo exhibit photos available upon request.
`
`LOAD-DATE: July 21, 2005
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`Til/o Patent Suit Advances on Federal Court Denial‘ of Echostar Motions PR Newswire US
`
`March 9, 2005 Wednesday
`
`Copyright 2005 PR Newswire_Association LLC.
`All Rights Reserved.
`PR Newswire US
`
`March 9, 2005 Wednesday
`
`LENGTH: 691 words
`
`HEADLINE: TiVo Patent Suit Advances on Federal Court Denial of Echostar Motions
`
`DATELINE: ALVISO, Calif. March 9
`
`BODY:
`
`ALVISO, Calif., March 9 {PRNewswlre-FirstCall;’ -- Tivo Inc. (NASDAQ:TIVO), the creator of
`and a leader in television» services for digital video recorders {DVRs), today announced that
`the federal district court for the Eastern District of Texas, Marshall Division has denied
`motions to dismiss and transfer TiVo's patent infringement case against Echostar
`Communications Corporation (ECG) and affiliated companies. In that case, Tivo has alleged
`that ECC and certain subsidiaries are violating a key TiVo patent (Ll.S. Patent No. 6,233,389
`issued to Two in May 2001, known as the "Time Warp" patent). The defendants had sought
`to transfer the case out of Texas, and two of the defendants argued that they were not
`subject to jurisdiction in Texas. The Court denied both motions.
`
`Key Tivo Inventions protected by this patent include a method for recording one program
`while playing back another; watching a show as it is recording; and a storage format that
`supports advanced capabilities -- such as pausing live television, fast-forwarding, rewinding,
`instant replays, and slow motion.
`
`As a result of the Court's rulings, the case will move forward in TiVo's chosen forum of the
`Eastern District of Texas, where the Court has scheduled jury selection to begin on October
`4, 2005. TiVo is being represented by law firms Irell B: Manella LLP (led by trial attorney
`Morgan Chu) and Mcl<ool Smith, PL. (led by trial attorney Sam Baxter).
`
`About Tivo Inc.
`
`Founded in 1997, TiVo Inc., a pioneer in home entertainment, created a brand new category
`of products with the development of the first digital video recorder (DVR). Today, the
`Company continues to revolutionize the way consumers watch and access home
`entertainment by making TiVo the focal point of the digital living room, a center for sharing
`and experiencing television, music, photos and other content. TlVo connects consumers to
`the digital entertainment they want, where and when they want it. The Company is based in
`
`1712
`
`

`
`Aiviso, Calif.
`
`This release contains certain forward-looking statements within the meaning of the Private
`Securities Litigation Reform Act of 1995. These statements relate to, among other things,
`TiVo's intellectual property litigation, patents, or other factors that may affect future earnings
`or financial results. Forward-looking statements generally can be identified by the use of
`forward-looking terminology such as, "believe," "expect," "may," "will," "intend," "estimate,"
`"continue," or similar expressions or the negative of those terms or expressions. Such
`statements involve risks and uncertainties, which could ca use actual results to vary
`materially from those expressed in or indicated by the forward-looking statements. Factors
`that may cause actual results to differ materially include delays in development, competitive
`service offerings and lack of market acceptance, as well as the “Factors That May Affect
`Future Operating Results." More information onipotential factors that could affect the
`Company's financial results is included from time to time in the Company's public reports
`filed with the Securities and Exchange Commission, including the Company's Annual Report
`on Form 10-K for the fiscal year ended January 31, 2004, as amended, and the Quarterly
`Reports on Form 10-Q for the periods ended April 30, 2004, July 31, 2004, and October 31,
`2004, filed with the Securities and Exchange Commission. We caution you not to place undue
`reliance on forward-looking statements, which reflect an analysis only and speak only as of
`the date hereof. Tivo disclaims any obligation to update these forward-looking statements.
`
`NOTE: Tivo and the Tivo logo are registered trademarks of Tivo Inc. in the United States and
`other jurisdictions. All rights reserved. All other company or product names mentioned may
`be trademarks or registered trademarks of the respective companies with which they are
`affiliated.
`
`CONTACT: Amanda Sanyal of SutherlandGold Comn-3., +1-B66-252-7373,
`ext. 106, or amanda@sutherlarIdgold.com , for TiVo Inc; or Ed Lockwood of TiVo
`Inc. Investor Relations, +1-403-519-9345, or ir@tivo.com
`
`Web site: httg:4_’zwww.tivo.com[
`
`SOURCE Tivo Inc.
`
`URL: http:g[www.,<:_rge1v§v1ire.com
`
`LOAD-DATE: March 10, 2005
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`Til/o slaps Echostar with DVR suit CED February 1, 2004
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`Copyright 2004 Reed Business Information US, a division of Reed Elsevier Inc.
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`February 1, 2004
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`SECTION: Departments; Upfront; Pg. 14
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`LENGTH: 157 words
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`HEADLINE: TiVo slaps Echostar with DVR suit
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`BYLINE: Staff
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`BODY:
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`Echostar beat TiVo in the race to reach 1 million DVR subscribers, but Tlvo beat the DBS
`provider in the courts, slapping Echostar with a patent infringement suit last month.
`
`Two, in a suit filed in Texas, alleged that Echostar has infringed on TiVo's "Time Warp"
`patent. That patent, No. 6,233,339, includes a method for some key DVR functions,
`including the recording of one program while playing back another, watching a program as it
`is recording, and a storage format that supports trick-play (pause, fast-forward, rewind, etc.)
`functions. Tivo said it filed the patent in July 1998.
`
`Tivo surpassed the 1 million subscriber milestone in November 2003, just behind Echostar,
`which reached that milestone in September.
`
`Echostar CEO Charlie Ergen told reporters at last month's Consumer Electronics Show that
`he was "confident we do not infringe on [TiVo's] patent. We do not think TiVo has a
`particularly strong case."
`
`LOAD-DATE: February 03, 2004
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`Date!TirrIe: Wednesday. October 31, 2007 - 10:04 AM EDT
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`IVO: Files Complaint Against Echostar Comm. - Patent Knobiascom January 23, 2004 Friday
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`Copyright 2004 Comtex News Network, Inc.
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`LENGTH: 460 words
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`January 23, 2004 Friday
`
`HEADLINE: TWO: Files Complaint Against EchoStar Comm.- Patent
`
`DATELINE: Ridgeland, MS
`
`BODY:
`
`TiVo Incorporated (NASDAQ NM : TIVO) filed an 8-K on H23, in which the Company reported
`that on US, it filed a complaint against Echostar Communications Corporation in the U.S.
`District Court for the Eastern District of Texas alleging willful and deliberate infringement of
`U.S. Patent No. 6,233,389, entitled "MuItimedia Time Warping System." On January 15,
`2004, the Company amended its complaint to add Echostar DB5 Corporation, Echostar
`Technologies Corporation, and Echosphere Limited Liability Corporation as additional
`defendants.
`
`The Company alleges that it is the owner of this patent," and further alleges that the
`defendants have willfully and deliberately infringed this patent by making, selling, offering to
`sell and/or selling digital video recording devices, digital video recording device software
`andfor personal television services in the United States.
`
`Tribune Media Services, Inc. Agreement
`
`On January 12, 2004 the Company executed a new Television Listings Data Agreement with
`Tribune Media Services, Inc. the current sole supplier of program guide data for the Tivo
`service. This agreement supersedes its existing television listing agreement with Tribune,
`which was originally executed in 1993. Pursuant to the new agreement, the Company will
`license program guide data for the Tivo service in exchange for monthly fees. In the event
`that the Company request format changes or require additional services, Tribune may
`increase its fees depending on the change in service requested. Pursuant to the new
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`agreement, Tribune and the Company will indemnify each other against claims and damages
`by third parties for breach of the agreement, or personal injury, property damage or
`infringement of intellectual property claims arising from the agreement or the Tribune data.
`The new agreement will become effective on.March 1, 2004, will have an initial term of three
`years and will automatically renew for up to two additional terms of one year each unless we
`notify Tribune of our desire to terminate the agreement at least 90 days before the end of
`thethen-current term.
`
`Acquisition of Strangeberry Inc.
`
`On January 12, 2004 the Company acquired Strangeberry Inc., a small Palo Alto based
`technology company specializing in using home network and broadband technologies to
`create new entertainment experiences on television. Strangeberry has created technology,
`based on industry standards and including a collection of protocols and tools, designed to
`enable the development of new broadband-based content delivery services. In exchange for
`all of the issued and outstanding capital stock of Strangeberry, the Company issued shares of
`Tlvo common stock to the stockholders of Strangeberry in a private placement.
`
`LOAD-DATE: January 24, 2004
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`Tech Lawsuit Tracker: Jan. 6, 2004 Daily Deal/The Deal January 7, 2004 Wednesday
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`Copyright 2004 The Deal, L.L.C.
`Daily Deal/The Deal
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`January 7, 2004 Wednesday
`
`SECTION: TECH LAWSUIT
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`LENGTH: 673 words
`
`HEADLINE: Tech Lawsuit Tracker: Jan. 6, 2004
`
`BYLINE: by Paul Bonanos and Gerald Magpily
`
`HIGHLIGHT:
`
`Metrologic wins a patent lawsuit against Symbol.
`
`BODY:
`
`The new year brought resolution for two warring factions and a new battle for others.
`
`Metrologic Instruments Inc. rang in 2004 by declaring victory in a lawsuit against Symbol
`Technologies Inc., apparently ending one aspect of the 11-year legal dispute between the
`two makers of bar-code scanners and wireless devices.
`
`By refusing to overturn an earlier summary judgment, the U.S. Court of Appeals for the
`Second Circuit essentially named Metrologic the winner in the case. The suit is one of several
`involving the two companies, including a more recent patent infringement action filed in June
`2003.
`
`The federal ‘court rejected Symbol's appeal, citing a lack of jurisdiction. Symbol had claimed
`that Metrologic violated the terms of a licensing agreement between the two, but the U.S.
`District Court for the Eastern District of New York sided with Metrologic in a decision handed
`down in March 2003.
`
`Metrologic first filed suit against Symbol in 1992,