In TQ Delta LLC v. Pace PLC, et al., C.A. No. 13-1835-RGA (D. Del. Jan. 5, 2017), Judge Richard G. Andrews recently resolved the parties’ dispute with regard to the use of conflicts counsel for Plaintiff, which had been ordered by the Court in connection with taking certain third-party discovery. Having summarized the few relevant cases on this topic cited by the parties, the Court ordered that conflicts counsel was to be walled off from Plaintiff’s lead counsel, but not its Delaware counsel. Among other parameters, conflicts counsel could receive unredacted filings, discovery served to date, infringement and validity contentions, and Plaintiff’s expert opinions, but conflicts counsel could not receive “any tutorial” from the lead counsel and would not receive any draft discovery directed to the third party. Conflicts counsel could provide discovery from the third party to Delaware counsel, who could then provide the discovery to lead counsel.
The Court ruled that this wall would continue at least through the close of discovery, but may need to be “relaxed at some point before trial,” the details to be determined at a later date. However, any examination of the third party’s witnesses at trial would need to be done by conflicts counsel.