Tuesday, August 18, 2015

Possible Perjury and Falsification of Billing Records After Dismissal Does Not Justify Award of Attorney Fees

The court overruled defendant's objection to the magistrate judge's recommendation denying its motion for attorneys' fees under 35 U.S.C. § 285 and rejected defendant's argument regarding litigation misconduct by plaintiff's former counsel. "Defendant argues that Plaintiff's former counsel committed litigation misconduct by falsely testifying that he had created a claims construction chart during the pre-filing investigation and then falsifying billing records to support this false testimony. . . . There are hard-copy and electronic versions of Plaintiff's counsel's billing records . . . . [T]he hard-copy billing records appear to be altered. . . .These discrepancies are troubling: they suggest that Plaintiff's former counsel may have perjured himself when he testified that he created a claims construction chart . . . and may have falsified evidence in an attempt to corroborate this. These issues will be addressed by separate order and a referral to the appropriate disciplinary authorities. However, they do not affect the extraordinary-case analysis because they do not pertain to Plaintiff's conduct while litigating this case. To the extent there was misconduct, it took place well after Plaintiff voluntarily dismissed the case."

Commonwealth Laboratories, Inc. v. Quintron Instrument Company, Inc., 1-14-cv-20083 (FLSD August 14, 2015, Order) (Seitz, J.)

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