In the wake of In re EchoStar, there have been multiple other cases in the District Courts interpreting and applying the Ã¢â?¬Ë?waiver of privilegeÃ¢â?¬â?¢ standard articulated in that decision. The discussion of Genentech in a prior post goes into a more in depth analysis of the treatment EchoStar is getting, but a couple of other cases help illuminate another important issue. Informatica Corp. v. Business Objects Data Integration (BODI), Inc., decided July 14, 2006, affirmed August 9, 2006 United States District Court, N.D. California James Lawson, Chief Magistrate Judge, Affirmed by Jeffrey S. White, U.S. District Court Judge. The court discussed work product waiver and determined that the privilege was not waived in the mental impressions of counsel. The court went on to support this determination by stating that the issue was the state of the mind of the infringer (the client), not the state of mind of the attorney. Essentially, the court remained in lock-step with the decision in EchoStar. However, of great interest was the fact that the court declared that the waiver may apply to both pre and post filing work product and privileged communications of trial counsel, so there is little temporal limitation on the waiver under such circumstances. The court suggested in the dicta of EchoStar that the waiver should extend through the litigation and trial when there is alleged ongoing infringement. Now, while most of the D.C. cases have been ruling similar to Informatica (i.e. agreeing with EchoStar), there has been some reluctance to agree with the CircuitÃ¢â?¬â?¢s suggestion regarding the temporal scope of the waiver. Intex Recreation Corp. v. Team Worldwide Corp., decided Jul 14, 2006 United States District Court, D.D.C. Deborah A. Robinson, Magistrate Judge Here, Judge Robinson differentiated Intex from EchoStar on the grounds that the defendantÃ¢â?¬â?¢s advisory and trial attorneys were the same, and the opinion regarding possible infringement was given after the initial complaint was filed. She went on to say that as such:
Waiver extends only to those trial counsel work product materials that have been communicated to the client and ‘contained conclusions or advice that contradict or cast doubt on the earlier opinions. Intex, 439 F.Supp.2d 46 at 52
So in essence, the court found a middle ground in allowing the waiver to extend into the litigation on a limited basis as opposed to the larger temporal scope suggested by EchoStar.