New Decision Addressing How to Handle Discovery Adverse to Current or Former Client

Suppose you’re representing a party to a lawsuit, and you have no conflicts, but you need to take discovery of a client, or a former client and the lawsuit is related to your work for your former client.  While your representation of the party in the suit isn’t adverse, some courts hold that taking discovery is adverse, and so if it’s taken from a current client, that’s a conflict, and if taken from a former client, that’s adverse and can’t be done if the matter for the former client is “substantially related” to the discovery requests.

A solution is to use separate counsel to take the discovery.  What limits are there on replacement counsel?  A recent case amplified on the sparse case law that there is on that point.  After discussing the case law limiting what “conflicts counsel” — replacement counsel for discovery — can do, the court wrote:

In light of these decisions, and my prior opinion, I think conflicts counsel in this case should be walled off from the McAndrews firm. Conflicts counsel need not be walled off from local counsel. Conflicts counsel may be provided with any and all (unredacted) filings on the docket. They may be further provided with any discovery served or received to date, including any infringement or validity contentions. Further, to the extent Plaintiff has any relevant written expert (including consulting expert) opinions, they may be provided to conflicts counsel. On the other hand, conflicts counsel does not get any tutorial from McAndrews, and does not get any draft Broadcom discovery. Conflicts counsel, if it needs expert advice beyond that identified above, will need to obtain its own expert(s). Conflicts counsel will need to formulate its own discovery requests to Broadcom, but is not prohibited from copying discovery requests already made to the parties or to other third parties. Conflicts counsel will need to serve any Broadcom subpoenas, deal with any Broadcom counsel, take any Broadcom depositions, and collect any Broadcom documents. Any discovery obtained by conflicts counsel may be provided to local counsel, and local counsel may provide the discovery to McAndrews. McAndrews may decide which discovery to provide to its experts, and which discovery to use at trial. The wall will continue at least through the close of discovery, but, it seems to me, it will have to be relaxed at some point before trial, since McAndrews will need to be in charge of trying Plaintiffs case. If any Broadcom witnesses appear at trial, however, any examination (or, more likely, cross examination) will need to be done by conflicts counsel.

TQ Delta LLC v. Pace PLC (D. Del. Civil Action No. 13-1835-RGA Jan. 5, 2017).