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PATENT COUNSEL SUBPOENA IS QUASHED NEW YORK — Defendants in a patent action may not depose the plaintiff’s litigation counsel, even though he was responsible for prosecuting the patents at issue in the case, a Southern District of New York judge ruled Thursday. Applying language used by the Second Circuit U.S. Court of Appeals on the standard for deposing attorneys, Judge Robert Sweet quashed a subpoena aimed at attorney Jeffrey Kaplan in the computer software dispute ResQNet.com v. Lansa, 01 Civ. 3578. ResQNet.com sued Lansa in 2001 over five patents for software-related patents. Kaplan had shepherded them though the U.S. Patent and Trademark Office. Lansa wanted to depose Kaplan on the prosecution of the patents, his communications with the PTO, prior art on the software and draft patent applications. It argued that the law of the Federal Circuit should apply. Judge Sweet said that in “procedural issues not unique to patent law,” the Federal Circuit defers to the regional circuits. The Second Circuit, he said, disfavors depositions of opposing counsel because they risk disrupting the attorney-client relationship and impeding litigation. Judge Sweet said he was guided by dicta in the Second Circuit’s 2003 opinion in In re Subpoena Issued to Dennis Friedman, 350 F.3d 65 (2003). The court said a motion to quash a subpoena under Rule 26 of the Federal Rules of Civil Procedure requires a district court to adopt a flexible approach to lawyer depositions as it determines whether the deposition “would entail an inappropriate burden or hardship.” — New York Law Journal

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