I’m updating my book on ethical issues in patent litigation, and found one of those “no way” cases.
Jones Day lawyer is representing a defendant in patent litigation. The plaintiff designates its expert. Lawyer gets on the Internet and, through email sent through that expert’s company’s web page, asks him some general questions by email, through a fake gmail address, not his Jones Day address.
For various reasons, the district court denies the motion for disqualification and sanctions. One of the reasons was that the information provided was the same sort of information the expert would have provided to any customer contacting him.
Interesting one. It’s IPatt Group, Inc. v. Scotts Miracle-Gro Co., 2013 WL 3043677 (D. Nev. June 17, 2013).
no disqualification, but was there an ethical violation that might result in discipline?
Perhaps another reason the Court declined to disqualify counsel and/or impose sanctions was that the complaining party waited for more than 8 months after the ex parte contact was discovered. I was surprised by the Court’s ruling when I read your post but after reading the order, it makes sense. Kinda hard to seriously complain about the ex parte contact when you wait for eight months to suddenly become offended by the complained of activity.
…come to the equity table with clean hands…?
Yes, various factors in play that led to denial of the motion, delay by time being one.
However, many courts do not allow lawyers to “waive” the interest of the court. Honesty is one of those things.
Don’t get me wrong, this is a thorny issue — the need to find facts without formal discovery, etc. Fun stuff.
I would not classify the email account as “fake,” and do wonder if an attorney must identify his true identity in any interaction on social media (not just the limited example in this case).
If so, then this blog (moreso on the main page) would need to seriously think about the massive level of advocacy that runs rampant by the pseudonymous and anonymous “ecosystem.”
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