That's the question being asked in the case of Dell v. Lucent Technologies (E.D. Tex, 4:03-cv-347), where Lucent has filed a Motion In Limine to preclude Dell from mentioning to the jury that Lucent did not rely on an opinion of counsel in defense of Dell's willful infringement allegations.
According to Lucent, the absence of an opinion of counsel is "irrelevant" under Seagate. Additionally, Lucent suggested that Dell should be precluded from mentioning that Lucent failed to obtain an opinion of counsel because the jury might be confused into thinking that Lucent had an obligation to obtain such an opinion:
Because Lucent’s decision not to rely on an opinion of counsel in defense of Dell’s willful infringement allegations is irrelevant to any issue before the jury, any reference to that decision is inadmissible. Fed. R. Evid. 402. Moreover, because any suggestion by Dell that Lucent did not obtain an opinion of counsel will only serve to confuse and mislead the jury into believing that Lucent had an obligation to obtain an opinion, any such suggestion should also be precluded under Federal Rule of Evidence 403. Accordingly, Lucent respectfully requests that the Court preclude Dell from mentioning or suggesting that Lucent did not obtain an opinion of counsel.
In response, Dell argues that the lack of an opinion is relevant, and should be submitted to the jury:
Whether Lucent knew or should have known of the objectively high risk of infringement is a subjective inquiry to which an opinion of counsel is relevant. If Lucent had obtained an exculpatory opinion of counsel, it would surely argue that its having done so demonstrates that it did not know of a high risk of infringement. The reverse is also true; from Lucent’s failure to seek legal advice the jury can infer that Lucent recklessly disregarded a high risk of infringement. The jury is therefore entitled to hear that Lucent did not obtain an opinion of counsel, and to consider this fact along with the other relevant facts and circumstances.
View Dell's Motion In Limine here (link)
View Lucent's Response here (link)