Sanctions imposed due to contact with employee of opposing party's affiliate
Microsoft Corp. v. Alcatel Business Systems et al., C.A. No. 07-090-SLR, December 18, 2007.
Robinson, J. Motion to disqualify law firm is granted in part and denied in part.
The Plaintiff accuses Alcatel’s OmniPCS Enterprise and OmniTouch Unified Communications software suite of infringing its patents. Plaintiff’s counsel, Fish and Richardson, arranged for the installation of the accused system in its Washington D.C. office. An employee of Acatel-Lucent, one of the originally named defendants, identified himself as such and worked on the installation and provided training on the administration, use and configuration of the system to two F&R lawyers, who engaged him in ongoing conversations about the system. Defendants assert that F&R’s conduct violated Model Rules 4.1, 8.4(c), and 4.3. The Court finds that given the employee’s position and level of responsibility, and because he was directed (as an employee of a represented party) to engage in conduct directly relevant to the subject matter of the litigation by F&R, that F&R violated Model Rule 4.2. The Court finds no prejudice in that no confidential information was disclosed; and F&R managed only to get objective information about the accused products without the “glaze of litigation stratagems that usually accompanies the discovery process.” The Court sanctioned Plaintiff by ruling F&R must pay the costs of this motion practice. In addition, Plaintiff may not use the fruit of F&R’s conduct, i.e. its expert may not serve as a consultant or expert witness, nor may the two F&R lawyers who oversaw the installation be involved in the litigation, nor may the information be given to any other witness for use in this litigation.
A copy of the full opinion is available here.
