Ex Parte Contact that Plaintiff Failed to do Adequate Pre-Suit Investigation Part of Failed Fee Shifting Motion

When I do CLE talks, I often tell people that if you’re going to raise ethical-related issues, be very honest and clear when you do.  In a recent case where Google sought to shift fees onto a patentee who lost his patent in an IPR, Google relied on the fact that a former employee of the patentee told Google’s counsel that the pre-suit investigation had been inadequate.  The judge wrote in part:

Defendants offer two reasons why the case should be considered exceptional, but neither is persuasive. First, they say that Fujinomaki himself didn’t do enough research before he filed his lawsuit pro se.  That is not at all supported by the record or by the law. Defendants concededly do not challenge the adequacy of Bumgardner’s testing and research once the case was brought to his attention. Dkt. No. 276 at 1. And defendants have virtually no evidence to back up their claim that Fujinomaki unreasonably filed suit. They rely only on the rather bizarre fact that Fujinomaki’s pre-suit patent consultant, Amani Bey, apparently contacted defendants after the lawsuit was filed to inform them about “Plaintiff’s failure to comply with Rule 11.”  How Bey did this without breaching a duty or at the very least a contractual obligation to Fujinomaki is not clear, but in any event, this purported incident is just a sideshow. Defendants present the incident mainly with hearsay evidence, and offer no documents to support Bey’s accusation. Other evidence strongly suggests that Bey was hardly an unbiased or trustworthy source. He reached out to defendants only after Fujinomaki sued him in Japan for failure to provide promised services. In addition, Bey’s allegations are contradicted by the declaration of Tatsuya Ichinomiya….

The opinion is Fujinomaki v. Google, LLC (Case No. 3:16-cv-03137-JD, N.D.Cal. July 31, 2018) (denying fee shifting).