Opinion Counsel’s Involvement in Litigation Justifies Discovery of Communications with Trial Counsel​

The court granted plaintiff's motion to compel discovery regarding communications between defendants' opinion and trial counsel because of opinion counsel's involvement in the present suit. "[B]y involving opinion counsel in the substantive defense of this lawsuit, [defendant] engaged in the type of conduct that justifies allowing discovery into any communications either involving or relaying information from opinion counsel to [defendant], its trial counsel, or its in-house counsel. . . . [Opinion counsel's] active, on-going involvement in this litigation blurs the lines between the roles of objective advisor and partisan advocate. Prohibiting [plaintiff] from discovering the content of [opinion counsel's] communications with trial counsel has the potential to allow [defendant] to obtain the benefits of an advice of counsel defense while also allowing it to shield communications which may demonstrate substantial flaws in [opinion counsel's] prior opinion. If present, those flaws may call into question [defendant's] reasonable reliance upon its opinion counsel’s advice."

Krausz Industries Ltd. v. Smith-Blair, Inc., et al, 5-12-cv-00570 (NCED December 13, 2016, Order) (Numbers, MJ)