Last week’s Privilege Point described an “advice of counsel” issue that arose in Bankman-Fried’s recent criminal trial. The day after S.D.N.Y. Judge Kaplan’s ruling in that case, another court dealt with this issue.

In New Vision Gaming & Development, Inc. v. LNW Gaming, Inc., Case No. 2:17-cv-01599-APG-BNW, 2023 U.S. Dist. LEXIS 177955 (D. Nev. Oct. 2, 2023), plaintiff New Vision moved for partial summary judgment — relying in part on an employee’s declaration that its lawyer found that defendant’s poker game infringed plaintiff’s patent. Acknowledging that “disclosing that legal counsel was consulted, the subject of the matter as to which advice was received, or that action was taken based on that advice, does not necessarily waive the privilege protection,” the court explained that in contrast to that scenario plaintiff’s declaration “explicitly stated his attorney’s conclusion that [defendant] had infringed [plaintiff]’s patent and that this gave rise to a claim.” Id. at *6, *7. The court understandably ordered plaintiff’s representative to answer deposition questions “as to whether his attorney considered all information, including any contradictory information, to see whether his opinion was well-founded.” Id. at *9.

Because the scope of an implied waiver rests on notions of fairness, courts finding such a waiver must define the extent to which the implied waiver strips away privilege protection. Next week’s Privilege Point will describe a New York opinion decided ten days later, which also focused on that scope of waiver issue.