EchoStar (NASDAQ:DISH) responded to Judge Duffey’s order to show cause with a lengthy set of documents outlining their reasons for believing the various documents in question are immune from discovery. Generally they take the position that the documents are simply internal work product that was never communicated to EchoStar. Without access to the documents in question, we cannot comment on the strength of EchoStar’s position on these documents, however we do find their response regarding Document 88 to be quite curious. Document 88 is a set of handwritten notes taken during a telephonic conference call, about which EchoStar says:
When Merchant & Gould attorneys were retained to provide an opinion regarding a patent over which litigation was pending, they had a conference call with litigation counsel from Morrison & Foerster. The only participants in the call were Merchant & Gould attorneys retained to provide advice on legal matters related to the pending litigation, and Morrison & Foerster counsel representing EchoStar in the litigation. [ … ] Document 88 was never communicated to EchoStar (in this form or orally), and it does not reference, describe, or disclose any communication with EchoStar.
EchoStar, then, appears to be taking the position that direct communication with the law firm they retained to represent them in the litigation is legally distinct from communication with EchoStar itself with respect to the that litigation. We doubt TiVo’s (NASDAQ:TIVO) attorneys will see it the same way. We wonder if the judge will.