Defendant Use Of Attorney Opinions Under Broadcom

Law360, New York (August 28, 2009, 2:24 PM EDT) -- The current law of willful infringement and induced infringement holds several traps for the unwary defendant. Currently, a defendant may choose to disclose an attorney opinion of noninfringement or invalidity to defend a claim of willful infringement or inducement.

Choosing to do so, however, waives attorney-client privilege and work product protection over related communications.

On the other hand, choosing to assert attorney-client privilege over the opinion may under current case law allow the plaintiff to offer evidence and arguments to the jury that the defendant never...
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