Whose Privilege Is It Anyway?

Law360, New York (November 15, 2010, 11:22 AM EST) -- It has become increasingly common for patent owners (particularly nonpracticing entities) to file a single patent infringement case against a slew of defendants, in an attempt to pursue a “divide-and-conquer” strategy.

In an effort to combat this, defendants of these large — and often unwieldy — cases frequently band together to create a unified front by entering into “joint defense” or “common interest” agreements. These agreements allow them to share privileged or otherwise protected documents and information without waiver. There are obvious benefits to such agreements,...
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