SECRETS, LIES, AND MONEY! Ethical rules for interacting with non-lawyers in IP litigation and transactions. January 22, 2014 Los Angeles, California

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1 SECRETS, LIES, AND MONEY! Ethical rules for interacting with non-lawyers in IP litigation and transactions January 22, 2014 Los Angeles, California Sponsored by Sidley Austin LLP Panelists: Kelly Kriebs, Sidley Austin LLP Samuel Tiu, Sidley Austin LLP Moderator: Harrison Perla, Esq., CEVA, Inc. #IHCC12 1

2 Questions for Consideration Is it ethical for lawyers/parties to pay fact witnesses (e.g., inventors) to cooperate in litigation? Even in negotiations with another party, how should a lawyer interact with a represented party, or maintain the client s confidence, but remain truthful? How should in-house counsel deal with employees who had access to sensitive trade secrets of their former employers? _2 2

3 Compensating a Fact Witness Inventor Content of testimony vs. reasonable value for loss time ABA Model Rules 3.4(b) and Comment (3) ABA Formal Opinion Cal Rules of Prof. Conduct 5-310(B) California Formal Opinion USC 201 Federal anti-bribery and anti-gratuity statute Case law _3 3

4 Reasonableness of Payment Benefits should be directly tied to reasonable reimbursement for time and expenses What about payment contingent on successful outcome of case? Ethicon, Inc. v. U.S. Surgical Corp., 135 F.3d 1456 (Fed. Cir. 1998) ($300K upon execution of agreement and $1 million dollars on successful outcome payable to inventor) ESN LLC v. Cisco, 685 F. Supp 2d 631 (ED Tex. 2009) ($200K based on favorable outcome payable to former employer of inventor) TQP v. Newegg ($350/hour plus 2.5% of settlement awards) _4 4

5 Locking Up The Inventor Witness Can I prevent a non-employee inventor witness from communicating with the other side s attorneys? ABA Model Rules 3.4(f) Cal Rules of Prof. Conduct 5-310(A) _5 5

6 Shield communications with the attorney-client privilege Issues to consider: Representing the Former Employee/Inventor Joint representation/conflict of interests ABA Model 1.7 (and Cal Rule 3-310) Solicitation rules ABA Model _6 6

7 Inventor Dual Capacity Witness Case law example: Sensormatic Elecs. Corp. v. WG Security Prods., Inc., 2006 U.S. Dist. LEXIS (E.D. Tex. May 11, 2006) Privilege protection of communications: FRCP 26(b)(4)(C) (non-testifying expert) FRCP 26(b)(4)(D) (testifying expert) _7 7

8 Inventors of the Adverse Party If the inventor is a former employee of your adversary Communication Represented by counsel? ABA Model Rule 4.2 California Rule Not represented by counsel? Proposed California Rule 4.3(b) Payment Hire as expert witness? _8 8

9 Prior Art Witnesses Not affiliated with either party Payment considerations as part of litigation strategy Witness bias? TypeRight Keyboard Corp. v. Microsoft Corp., 374 F.3d 1151 (Fed. Cir. 2004) Control and non-attendance at trial _9 9

10 Check the specific jurisdiction for your case Candor with court and opposing counsel is important Disclose early Take-Aways _10 10

11 Communication with Represented Parties Cal Rules of Prof. Conduct Not limited to litigation; also applies to transactions Graham v. U.S. (9th Cir. 1996) 96 F.3d 446; Cal Rules of Prof. Conduct Discussion (2008) Knowledge of Representation Snider v. Superior Court (Quantum Productions Inc.) (2003) 113 Cal.App.4th 1187; Cal. Bar Form. Op _11 11

12 Communication with Represented Parties Consent to communication with represented party must come from the party s counsel (Cal Rules of Prof. Conduct 2-100) Consent from Target s GC or outside counsel? ABA Form. Op _12 12

13 Social Media and Take Aways Communication via Social Media SDCBA Legal Ethics Opinion Take-Aways Do you know (or should you have known) the opposing party is represented by counsel? Get consent from counsel to communicate with her client Consider all forms of communication _13 13

14 Open Source Software Open Source Review Open Source License Permissive Viral Attribution requirements Copyright infringement Jacobsen v. Katzer, 535 F.3d 1373 (2008) _14 14

15 Duty of Candor Duty of Candor How does duty relate to duty to follow client s instructions and keep confidences ABA Model Rule 1.2(a) Cal Bus. & Prof. Code 6068(e) No duty to protect the interests of non-clients Fox v. Pollack (1986) 181 Cal.App.3d 954 and Skarbrevik v. Cohen, England & Whitfield (1991) 231 Cal.App.3d 692 Goodman v. Kennedy (1976) 198 Cal.3d 355 and ABA Formal Opn. No Who is the client? Cal Rules of Prof. Conduct _15 15

16 Duty of Candor Duty of Candor Cal Bus. & Prof. Code 6106 ABA Model Rules 4.1 and 8.4 Vega v. Jones, Day, Reavis & Pogue (2004) 121 Cal.App.4th 282 Must not participate in fraudulent conduct Cal Rules of Prof. Conduct and related Discussion May have to report up and perhaps, ultimately, withdraw (resign) _16 16

17 Duty of Candor; Take-Aways Duty of candor to the court standards differ ABA Model Rule 3.3 Cal Rules of Prof. Conduct and Cal Bus. & Prof. Code 6068(d) Take-Aways Duty of confidentiality to client is paramount But cannot knowingly make a false statement of fact or perpetrate a fraud Duty to report up _17 17

18 Employee with Former Employer s Trade Secrets Ethical dilemma Cannot possess trade secrets of others But destroying documents with trade secrets may be viewed as spoliation of evidence Possible approaches? Return the information Quarantine the information Destroy the information _18 18

19 Employee with Former Employer s Trade Secrets Onboarding new employees is important Examples: IBM v. Visentin, 2011 U.S. Dist. LEXIS (S.D.N.Y. 2011) Amazon.com v. Powers, 2012 U.S. Dist. LEXIS (W.D. Was. 2012) _19 19

20 Panelists Kelly Kriebs Partner, Corporate and Finance Sidley Austin LLP Samuel Tiu Partner, Litigation - Intellectual Property Sidley Austin LLP Harrison Perla, Esq. Director of Worldwide Legal Affairs CEVA, on Twitter _20 20

21 11 th Annual In-House Counsel Conference January 22, 2014 (Los Angeles, CA) _21

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