Krausz Industries Ltd. v. Smith-Blair, Inc., et al, 5-12-cv-00570 (NCED December 13, 2016, Order) (Numbers, MJ)
Monday, January 9, 2017
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."