Monday, October 26, 2015

Counsel’s Violation of Protective Order Does Not Warrant Disqualification

The court denied defendants' motion to disqualify plaintiff's counsel after he violated a protective order by disclosing defendants' highly confidential information to plaintiff. "[T]his Court is troubled by the seemingly cavalier attitude towards the Protective Order that was evinced by Plaintiff's attorney in counsel's initial email exchange about the improper disclosure. . . . [Counsel's email correspondence] suggests that Plaintiff's counsel felt that they were justified in ignoring AEO designations and the dictates of the Protective Order, where they had unilaterally decided that disclosure was necessary. Nonetheless, the totality of the circumstances presented here do not justify the imposition of sanctions as severe as those requested by Defendants. . . . [T]his Court cannot conclude that the violation consisted of more than a single incident, in which Plaintiff's counsel disclosed only limited information. Further, Defendants have not shown that they have suffered any commercial harm as a result of the violation. . . . While Defendants argue that Plaintiff's counsel intentionally breached the Protective Order 'because they desired to give [plaintiff] an advantage in responding to deposition inquiries', they do not explain how knowledge of the particular information apparently learned by [plaintiff] actually resulted in a litigation advantage for Plaintiff. . . . Especially given the narrow parameters of the violation that has been demonstrated by Defendants, this Court cannot find that a lesser sanction, such as requiring Plaintiff's counsel to pay Defendants' fees and costs for their motion, would be insufficient to address the situation presented and deter future misconduct."

Jay, M.D. v. Spectrum Brands Holdings, Inc. et al, 1-13-cv-08137 (NYSD October 20, 2015, Order) (Freeman, M.J.)

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