On January 26th, in response to a TiVo motion to enforce his earlier order to deliver certain documents, a frustrated-sounding U.S. District Court Judge Duffey slapped the wrists of Echostar and “non-party witness” Homer Knearl, requiring them to sign pre-prepared affidavits that they had, in fact, complied with his order. Duffey accused Knearl and Echostar of playing “a legal shell game” and called their earlier responses “vague, equivocal, and qualified.”
TiVo has been seeking documents produced by Knearl and his former associates at the Merchant and Gould law firm that relate to a legal opinion of non-infringement that M&G gave Echostar in their patent dispute with TiVo. That opinion was not allowed into evidence at trial (primarily because of Echostar’s failure to deliver related documents under an earlier court order), and has now become a significant factor in Echostar’s appeal and TiVo’s counter-appeal.
Judge Duffey also took the uncompromising step of ordering Echostar and Knearl to provide to him, for in camera review, all documents for which they claim attorney-client privilege. Both orders were to be executed by February 15th.