Free Reply Brief - District Court of Delaware - Delaware

Case 1:04-cv—01373-KAJ Document 340-2 Filed 05/31/2006 Page1 0f2

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05/f23//2006 Clase 1 il04-cv—01373-KAJ Document 340-2 Filed 05/31/2006 Page 2 of 2
WILMERHALE
May 23, 2006 F-·¤i·= ¤· Lrvlu
By Facsimile and Regular Mall Egg
arlc.|evrn®i¤dlmerha|e.com
Stephen T. Straub, Esq.
Ropes 8.: Gray LLP
1251 Avenue ofthe Americas _
New York, NY 10020-1104
Re: Analog Devices, Inc. v. Linear Technology Corp.
Civil Action N o. 00-CV-10841-EFH
Dear Steve:
Enclosed for your review please End a copy of a brief filed by Ropes dt Gray LLP in a patent
infringement action pending in the United States District Court for the District of Delaware,
which addresses the scope of the waiver of the attorney-client privilege when a defendant relies
upon an opinion of counsel to rebut a charge of willful infringement. In this brief, your fimt
argued that a recent decision by the Federal Circuit, In re EchoStar Communications Cog., 2006
VWL 1149528 (Fed. Cir. May 1, 1996), holds that all cotnrnunications with trio! counsel are
waived when a party obtains an opinion of counsel to rebut a charge of willful infringement after
the initiation of litigation. Otherwise stated, your firm took the position that where a party
obtains an opinion of counsel after the initiation of litigation, that party must produce all
communications with its trial counsel (not merely communications with opinion counsel).
In this case, LTC waived the attorney—client privilege to rely upon an opinion of counsel it
obtained after Analog filed suit in May H0. g LCO·O5239-5439; LC005-440-5589 (Opinion
Regarding U.S. Patent No- 5 ,664,481 by O’Keefe, Egan & Peterrnan, LLP). However, LTC has
not produced any communications with trial counsel and its predecessor frm.
Please advise me promptly by June 1 whether LTC will produce all communications between
LTC and trial counsel relating to infringement of the ‘481 patent and the RECH53 patent so we can
determine whether to approach the Court on this issue.
Please call me if you have any questions.
Very truly yours,
Eric D. Levin
EDL:ed1
Enclosure
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