Vanessa Blum writes for The Recorder, an American Lawyer affiliate.
Earlier this month Apple Inc. filed an astonishing motion to disqualify opposing counsel in a patent suit pending in San Francisco federal district court. The tech giant accused a partner at Morgan, Lewis & Bockius, one of Apple’s longtime go-to law firms, of secretly orchestrating legal strategy and advising plaintiffs counsel even as he had access to reams of confidential Apple materials.
This week, lawyers for Philadelphia-based patent holder FlatWorld Interactives got to have their say, firing back at Apple for attempting to derail the litigation based on what they describe as "a narrative laced with innuendo."
The controversy surrounds John McAleese III, who until recently was an environmental law partner at Morgan Lewis and is married to a FlatWorld co-owner. FlatWorld’s lawyers at Hagens Berman Sobol Shapiro in Seattle flatly deny that McAleese worked with them and want U.S. District Judge Jeffrey White of San Francisco to review the privileged emails that Apple has not seen but cites as proof that McAleese was "secretly working for Apple’s adversary" for more than six years.
"Despite Apple’s effort to create smoke, there is no fire," FlatWorld’s lead counsel, Steve Berman and Mark Carlson, wrote in the firm’s response opposing disqualification from FlatWorld v. Apple.
Apple is represented in the case by the IP boutique Bridges & Mavrakakis. Partner Kenneth Bridges of the firm’s Palo Alto office did not respond to a request for comment.
The rogue-partner scenario described by Apple (and first reported by technology magazine Ars Technica) was enough to send chills through any Big Law partner who manages an important client relationship.
Not surprisingly, FlatWorld’s version of events differs from Apple’s. However, there are some facts both parties can agree on: McAleese, who recently joined the Philadelphia office of McCarter & English after 24 years at Morgan Lewis, is married to Jennifer McAleese, 35 percent owner of FlatWorld. The company, which is co-owned by inventor Slavoljub Milekic, sued Apple in 2012 over the touchscreen technology in its iPhone and iPad.
The disqualification controversy arose in late February when FlatWorld provided Apple with its privilege log, referencing communications to and from John McAleese as protected by attorney-client privilege. What happens next could depend on the contents of those communications and whether they suggest McAleese was conveying information through his wife to FlatWorld’s lawyers at Hagens Berman.
FlatWorld’s attorneys insist that never happened: John McAleese’s only connection to the litigation is through marriage and he never advised on the case, much less conveyed any insider information.
It’s not disputed that Jennifer McAleese forwarded more than two dozen emails to her husband, including 13 email strings from Hagens Berman lawyers containing legal advice. However, Berman and Carlson contend that disqualification cannot be justified without evidence they received information from John McAleese.
"Any alleged taint attaching to Mr. McAleese can only be attributed to Hagens Berman if Mr. McAleese acted as co-counsel in this litigation with a ‘close’ and ‘intimate’ working relationship with Hagens Berman — and there is absolutely no evidence that he did," Berman and Carlson wrote in their response Tuesday.
FlatWorld offered to disclose the emails to Apple, if Apple would agree the production did not constitute a waiver of privilege, the lawyers stated. However, no agreement was reached.
Apple argued in its May 28 filing that McAleese’s "pervasive involvement" in the case could leave no doubt he acted as co-counsel on the case, by passing advice and confidential information through his wife. Moreover, Apple contends that FlatWorld, John McAleese and Hagens Berman worked together to conceal their communications by amending an initial privilege log and replacing "attorney-client" with spousal privilege for some withheld documents.
The original log should speak for itself, according to Apple.
FlatWorld’s lawyers want White to review the documents in full before reaching any conclusions.
"The court should not have to rely on Apple’s lurid conjecture about the substance of these documents, or pick between the parties’ respective characterizations of them in a vacuum," Berman and Carlson wrote in a motion seeking in camera review.
The lawyers also pose the question of what would stop Apple from seeking to disqualify future counsel on the same grounds they have moved against Hagens Berman.
"Any firm replacing Hagens Berman would face an enormous and expensive task to come up to speed on this case," the lawyers wrote. "And in the end, Ms. McAleese will still be married to John McAleese."