Most courts consider the attorney-client privilege so important that they prohibit the drawing of any adverse inference from a client’s assertion of the privilege. However, for many years courts handling patent infringement cases have permitted an inference of willfulness to flow from a litigant’s assertion of the privilege (or the work product doctrine protection).
A Federal Circuit Court of Appeals (which hears such matters) has now rejected that approach, and returned to the basic principle protecting any client who asserts the privilege from an adverse inference. Knorr-Bremse v. Dana Corp., Nos. 01-1357 & -1376, 02-1221 & -1256, 2004 U.S. App. LEXIS 19185 (Fed. Cir. Sept. 13, 2004).
In an era of increasing assaults on the attorney-client privilege, clients and their lawyers should take comfort in this affirmation of both society’s interest in the privilege and courts’ protection of clients who assert their rights.