Defense Counsel’s Damages Team Disqualified for Hiring Plaintiff's Former Trial Presentation Consultant

The court granted in part plaintiffs' motion to disqualify defense counsel after defense counsel hired plaintiffs' former lead trial presentation consultant from a related trial on the same patents-in-suit. "Given the nature and substance of [the consultant's] work in his prior trial presentation services and work . . . Plaintiffs are entitled to a rebuttable presumption that this element [likelihood of access to relevant privileged information] has been met. . . . After careful consideration of [the affidavits of defendant's counsel, paralegal, and director of trial services], the Court concludes that the presumption of sharing has not been sufficiently rebutted here. Though the affidavits . . . are technically uncontroverted, they are nonetheless 'self–serving protestations' that, viewed with the rest of the evidence of record in the context of [the consultant's] 80 hours working on this case with counsel, staff, and experts, do not 'clearly and effectively rebut the presumption that information was exchanged' at some level. [Defense counsel's] handling of [the consultant's] employment . . . assignment to the [related] matter and delay in notifying Plaintiffs’ counsel reflect a rather astonishing tone deafness, compounded by [defense counsel's] resistance to allowing [the consultant] to be deposed. . . . Further, that [defendant] knowingly placed [the consultant] on the very same matter that he had worked on four years ago creates more than a nagging suspicion of taint. . . . [As a result] all members of [defense counsel’s] trial team that worked directly with [the consultant] . . . and the damages expert team are disqualified from any further work on this case and from any contact regarding this case . . .”

Tyco Healthcare Group LP, et. al. v. Ethicon Endo-Surgery Inc., 3-10-cv-00060 (CTD December 30, 2011, Order) (Arterton, J.)