Judge Andrews Adopts Procedure for Use of Conflicts Counsel

February 9, 2017

Publication| Intellectual Property

In TQ Delta LLC v. Pace PLC, C.A. No. 13-1835-RGA (D. Del. Jan. 5, 2017), and related actions, Judge Andrews outlined the function of conflicts counsel ordered to undertake discovery of a third party to the lawsuit. Third party Broadcom Corp. (“Broadcom”) had permitted one of the defendants to produce sensitive documents containing Broadcom’s information, after which the plaintiff, TQ Delta LLC (“TQ Delta”), issued a subpoena directly to Broadcom. Because TQ Delta’s lead counsel had previously represented Broadcom in another matter, Broadcom moved to disqualify the counsel.

Having concluded that lead counsel’s prior representation of Broadcom and current representation of TQ Delta were substantially related, Judge Andrews ordered TQ Delta to retain conflicts counsel to conduct third-party discovery of Broadcom. Judge Andrews ordered that conflicts counsel be walled off from TQ Delta’s lead counsel (which had represented Broadcom in the substantially related matter), but not from TQ Delta’s local counsel (which had not).

The Court instructed that conflicts counsel would be permitted access to all filings, any discovery served to date, and any expert opinions in existence, but could not receive a tutorial from TQ Delta’s outside counsel and must retain new experts if additional expert advice would be required. Moreover, conflicts counsel must handle all subpoenas, depositions, and document collection and production relating to Broadcom, and may then provide such discovery to TQ Delta’s local counsel, who may subsequently provide it to TQ Delta’s lead counsel.

Key Points:  Judge Andrews reviewed procedures for conflict counsel adopted by other federal district courts in issuing this decision, which is thus likely to provide useful guidance to parties that may find it advisable to retain such counsel in future cases here.

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