Monday, October 26, 2009

EDTX Meet & Confer Rule for Discovery Motions Requires Participation by "Lead Counsel"

Defendants' motion to compel the production of patent prosecution files from plaintiff's outside attorneys was denied without prejudice because lead counsel did not participate in the "personal conference" required by the court's local rule. "Pursuant to Local Rule CV-7(h), prior to seeking court intervention, lead counsel for the movant must have a personal conference with the lead counsel for the non-movant. . . . [I]n the Certificate of Conference, Defendants identified [an attorney] as 'lead counsel for the Defendants,' when [a different attorney] is listed on the Court’s docket as Defendants’ lead attorney. [The third party] accurately points out that this is in violation of the certification components set forth in Rule CV-7(i) that requires all elements of Rule 7(h) to be met, as well as the stipulation that in discovery-related motions, the Certificate of Conference must be signed by lead counsel. The Court sees no reason that the 'lead counsel' signing a Certificate of Conference should not be the same attorney that is designated as lead counsel on the Court’s docket sheet. . . . [B]oth parties are reminded that 'unavailability' is no excuse for lead and local counsel’s failure to participate in discovery."

Konami Digital Entertainment Co, Ltd. et al. v. Harmonix Music Systems, Inc. et al., 6-08-cv-00286
(TXED October 22, 2009, Memorandum & Opinion) (Love, M.J.)

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