In a December 13, 2016, order (made publicly available in redacted form on January 5, 2017), the District Court for the Eastern District of North Carolina enunciated a broad waiver of the attorney-client privilege for a party relying on the advice-of-counsel defense to an allegation of willful infringement. The court’s order relied on the Supreme Court’s 2016 Halo decision to allow discovery of post lawsuit communications with opinion counsel, as well as certain communications between and among the defendant, its in-house counsel, opinion counsel and trial counsel. The decision has significant ramifications for parties seeking to rely on noninfringement or invalidity opinions to counter willful infringement claims.
On Wednesday, the District Court for the Northern District of California granted defendant F5’s renewed motion for JMOL that it did not willfully infringe plaintiff Radware’s patent. The court determined that plaintiff failed to submit sufficient evidence to support the jury’s willfulness finding, even under the new preponderance of the evidence standard set forth in the Supreme Court’s Halo decision.