Tuesday, January 10, 2017

Conflicts Counsel for Third Party Discovery Must be Walled Off From Trial Counsel​

Following an order that plaintiff obtain conflicts counsel to pursue third party discovery from a former client of plaintiff's trial counsel, the court issued a second order addressing how conflicts counsel should function. "I think conflicts counsel in this case should be walled off from [trial counsel's] firm. Conflicts counsel need not be walled off from local counsel. Conflicts counsel may be provided with any and all (unredacted) filings on the docket. . . . On the other hand, conflicts counsel does not get any tutorial from [trial counsel], and does not get any draft [nonparty] discovery. Conflicts counsel, if it needs expert advice beyond that identified above, will need to obtain its own expert(s). . . . The wall will continue at least through the close of discovery, but, it seems to me, it will have to be relaxed at some point before trial, since [trial counsel] will need to be in charge of trying Plaintiffs case. If any [nonparty] witnesses appear at trial, however, any examination (or, more likely, cross-examination) will need to be done by conflicts counsel."

TQ Delta, LLC v. Pace Americas, LLC et al, 1-13-cv-01835 (DED January 6, 2017, Order) (Andrews, USDJ)

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