(Tom Kurtz / The Recorder)
SAN FRANCISCO — As a Northern District patent battle heats up, Radware is trying to disqualify IP litigator Morgan Chu and others at Irell & Manella from representing rival networking firm A10 Networks.
In a motion filed Friday, Radware argued that the Irell team has an ethical conflict because Chu and others have previously advised the company. Representing Radware in at least two matters, Irell gained confidential information about Radware’s products, financing and decisionmaking, the Israeli company claimed in the motion for disqualification.
“The prejudice to Radware in allowing its former counsel and confidant to represent an adverse party in a related patent infringement case is simply too great to turn a blind eye to Irell’s conflict,” the motion states.
Kerr & Wagstaffe filed the motion on behalf of Radware, which is represented by McDermott Will & Emery in the underlying suit. Radware wrote that it tried to resolve the matter privately, but Irell refused to withdraw, forcing the company to move to disqualify the firm.
If Irell is disqualified Radware suggested that A10 can rely on Latham & Watkins, which it has also hired to represent it in the suit.
McDermott partner Fabio Marino declined to comment. Chu and a spokeswoman for Irell & Manella did not respond to requests for comment about their representation of A10, a San Jose–based company.
Lawyers may go up against former clients if the current and former matters are not substantially related, legal experts say. Irell told Radware’s counsel that it did not have a conflict because its prior representation of the company involved different patents, according to the motion.
But Radware insists that the patents it asserted against A10 are related to products that Radware discussed in depth with Irell lawyers. The attorneys conferred about the products in confidence with two Radware employees that Irell is now trying to depose, the Israeli company added.
According to the motion, Irell represented Radware in a dispute with F5 Networks, which Radware sued in U.S. District Court for the Northern District of California last May on the same day it sued A10. Those suits are now related, and F5 and A10 have coordinated their defenses to Radware’s claims, exacerbating Irell’s conflict, Radware argues. The companies all make networking hardware that helps busy websites control Internet traffic.
“Radware should not have to face its former counsel on this playing field,” the company argues.
Radware originally tried to disqualify Irell in a motion filed in camera, claiming it contained materials protected by attorney-client privilege.
Irell protested that Radware should not be allowed to wage a covert offensive against the firm.
“Radware cannot use the attorney-client privilege as both a sword and a shield,” Chu wrote in opposition to the motion for in camera review. “It would also be a violation of due process if Radware were permitted to publicly accuse Irell of unethical conduct and seek its disqualification of this action, while … preventing A10 and Irell from publicly defending themselves.”
Radware filed a redacted motion to disqualify Irell after U.S. District Judge Ronald Whyte ruled that the company must either make the documents available to the court and attorneys involved in the litigation or withdraw them.
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