ACC Argues Against the Improper Extension of Privilege Waiver to In-House Post-Complaint Communications and Work Product

ACC Position: 

In a patent infringement case before the U.S. District Court in Delaware, Johns Hopkins University v. Alcon Laboratories, Inc., Alcon is relying on an opinion of counsel defense, and accordingly has been ordered to produce privileged documents relating to legal advice on the subject patent’s validity and potential infringement. The trial court ordered Alcon to produce all such communications, with the exception of post-complaint communications with outside counsel. This order leaves Alcon’s post-complaint communications with in-house counsel subject to disclosure. In its brief supporting Alcon’s request for a writ of mandamus, ACC argues that this order, if allowed to stand, would “relegate…inside counsel to ‘second class’ litigator roles.” This would reduce efficiency and increase costs for corporate clients and undermine important communications companies should have with their in-house attorneys after complaints are filed.

See the brief here.