The Seventh Circuit Pilot Program on Electronic Discovery is hosting a complimentary webcast CLE discussing practical applications of data analytics in discovery on April 11, 2018 from 12 pm – 1:30 pm CT. This program tackles one of the most complex, expensive and vilified parts of litigation – discovery – looking at ways to improve, … Continue Reading
Earlier this month, President Trump appointed Northern District Judge St. Eve to the Seventh Circuit. Those that practice in the Northern District are, no doubt, familiar with her career trajectory. Judge St. Eve practiced at Davis Polk in New York before joining independent counsel Ken Starr’s Whitewater investigation where she distinguished herself as an investigator … Continue Reading
First Classics, Inc. v. Jack Lake Prods., Inc., No. 17 C 1996, Slip Op. (N.D. Ill. Jun. 1, 2017) (Cole, Mag. J.). Judge Cole granted plaintiff’s motion to cancel the parties’ agreed settlement conference, but denied plaintiff’s motion for monetary sanctions without prejudice to refile its motion with more detail. Because defendant refused to attend … Continue Reading
Black & Decker Corp. v. Positec USA Inc., No. 11 C 5426, Slip Op. (N.D. Ill. Aug. 5, 2015) (Dow, J.). Judge Dow denied defendant’s motion to strike plaintiff Black & Decker’s (“B&D”) jury demand as to their Lanham Act claim for defendant’s profits. While the Lanham Act suggested the possibility of a jury decision, … Continue Reading
With amendments to the Federal Rules set to go into effect on December 1, the Seventh Circuit Pilot Program on Electronic Discovery is offering a CLE program on the e-discovery implications of the new rules on October 14 at 12pm CT. Speakers include: Judge Sheila Finnegan; Nan Nolan (former Magistrate Judge and current JAMS mediator); … Continue Reading
With a hat tip to the Chicago Daily Law Bulletin’s coverage of the 7th Circuit Judicial Conference, Northern District Judges Durkin, St. Eve, and Tharp offered several valuable practice tips for litigating before federal courts, that apply as well for IP litigators as for any litigator. Judge Durkin: Reduce litigation costs. For example, there is … Continue Reading
The Seventh Circuit Electronic Discovery Pilot Project and Seyfarth Shaw LLP are offering a free webinar (register here) on the discovery of social media April 5 from 12:00 – 1:15 central. The program will focus on the particular issues with discovery of social media including: The discoverability of social media The preservation duty as it … Continue Reading
The Seventh Circuit Electronic Discovery Pilot Program is sponsoring a free e-discovery webinar on April 6, 2011 from noon until 1:30 pm CDT. This is the next in a series of e-discovery seminars sponsored by the local federal courts which have been excellent so far. Participation is limited to 1,500. So, sign up early -- click here to register. Attendance for the past events has been impressive. 1.5 hours of MCLE credit have been applied for in Illinois, Indiana and Wisconsin.
Here are the details of the webinar from the Northern District's inviation:
What Everyone Should Know About the Mechanics of E-Discovery
April 6, 2011 - Noon - 1:30 p.m. (CDT)
Understanding the mechanics of electronic discovery is essential to your effectiveness in litigation and to fulfill your responsibility to your clients. The Seventh Circuit Electronic Discovery Pilot Program, together with Merrill Corporation, has developed a program designed to assist you in mastering the e-discovery challenges of today's litigation and to help you manage the preservation, retrieval and production of ESI through the e-discovery process. You will gain information including:
A basic understanding of the terminology unique to the realm of e-discovery.
The meaning of preservation and how to achieve this crucial obligation in an evolving technological landscape.
How to assess and manage the challenges of an e-discovery project.
A foundational understanding to help you identify potential e-discovery pitfalls and potential problems.
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The Seventh Circuit's Electronic Discovery Committee is offering what appears to be an excellent CLE program, with one hour of Illinois credit, discussing when and how lawyers should communicate with their clients about e-discovery issues. Click here to register for the April 28, 2010 noon CT webinar. Here is the Committee's description of the program:
"You and Your Clients: Communicating About E-Discovery, How to Talk to Your Clients about E-Discovery and the Application of the Seventh Circuit E-Discovery Principles" should not be missed. It will provide an in-depth discussion regarding the following topics:
When should communications regarding ESI begin with your client;
What are the categories of discoverable ESI you need to discuss;
How do you help your client assess where discoverable ESI might be stored;
What steps should be taken to preserve relevant ESI;
When (and if) backup tapes should be considered an ESI source that needs to be preserved/disclosed/produced;
How vendors can be used effectively in the collection/processing/production of ESI;
Practical approaches for the production of ESI; and
When to use and how to select an electronic discovery liaison.
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Wednesday, February 17, 2010 at noon central, Law.com is hosting an in-depth webinar discussion of the Seventh Circuit's new Principles Relating to the Discovery of Electronically Stored Information - click here for registration information. The Principles are designed to streamline discovery and resolve e-discovery disputes by, among other things, incentivizing early and informal information exchange on common issues. The Principles also identify formats of e-discovery that are generally not required to be preserved in order to reduce fights and costs. For more on the Principles, click here. In October 2009, the Seventh Circuit initiated Phase One of its E-Discovery Pilot Program across the Seventh Circuit's district courts, with a special emphasis on the Northern District of Illinois. In Phase One, the Principles are being applied to 80 selected cases during Phase One.
The panelists for the webinar include:
Chief Judge Holderman;
Magistrate Judge Nolan;
Thomas Lidbury, Mayer Brown; and
Alexandra Buck, Senior Counsel and Director of E-Discovery and Records Management at Abbott Laboratories.
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Gabbanelli Accordions & Imports, L.L.C. v. Italo-Am. Accordion Mfg. Co., No. 02 C 4048, Slip. Op. (N.D. Ill. Sept. 21, 2009) (Zagel, J.).
Judge Zagel entered judgment on behalf of plaintiffs in the amount of $151,200 in lost profits after the Seventh Circuit affirmed the Court's judgment.* The Court also held defendants jointly and severally liable for $147,576.12 in plaintiff's attorneys' fees.
* Click here for more on this case in the Blog's archives.
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Schrock v. Learning Curve Int'l, No. 08-1296, 2009 WL 3644331(7th Cir. Nov. 5, 2009).
The Seventh Circuit reversed and remanded Judge Shadur's decision in this copyright case.* The Court held that plaintiff's photographs of defendant's Thomas the Tank Engine trains were derivative works, and that absent a contractual provision to the contrary, plaintiff had a copyright in the derivative work. Because plaintiff had permission to create the derivate works, plaintiff had a copyright in his derivative works. And the Court could not decide whether the agreements prevented plaintiff from getting a copyright in the derivative work because the agreements were not part of the appellate record. Additionally, the Court pointed out that the requirement that a derivative work be "substantially different" from the original did not create a heightened originality standard for derivative works. The Court noted that plaintiff's photographs of defendant's Thomas the Tank engines had sufficient originality.
* Click here for more about this case in the Blog's archives.
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Click here for the Seventh Circuit's new proposed pattern trademark jury instructions.* The committee that prepared the instructions included Northern District of Illinois Judges Kendall and Kennelly, as well as a broad spectrum of attorneys from academic, government and private practice.
The pattern instructions are impressive for their thoroughness. They are also very well cited, making them an excellent primer on Seventh Circuit trademark law. Of particular note, the instructions do not include a dilution instruction because since Congress's 2006 revision of the dilution laws, there has not been sufficient appellate interpretation.
* The jury instructions are not yet in final form.
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The Seventh Circuit's Judge Posner has weighed in on the newspaper crisis at his Becker-Posner Blog suggesting that a fix to the news revenue issue might be to change copyright laws to prevent linking to or summarizing news content (click here to read the post):
Expanding copyright law to bar online access to copyrighted materials without the copyright holder's consent, or to bar linking to or paraphrasing copyrighted materials without the copyright holder's consent, might be necessary to keep free riding on content financed by online newspapers from so impairing the incentive to create costly news-gathering operations that news services like Reuters and the Associated Press would become the only professional, nongovernmental sources of news and opinion.
I see the problem and the danger to society in losing newspapers and their reporters, but it seems unworkable to prevent linking. Perhaps a system could be implemented requiring sites that link to a news story or to registered and copyrighted material to pay a small fee for each click through from their site. It could be similar to and even administered by the Copyright Clearance Center which currently offers licenses that grant rights to incidental copying of the copyrighted content of member organizations.
Additionally, preventing summarizing of factual news stories would be exceptionally difficult to implement. But the newspapers can prevent direct copying of the text of articles from their sites and can always require subscriptions or passwords to get to their content.
But while I am not sure that these suggestions are workable, there is little doubt that newspapers in particular need new avenues to monetize their content in order to maintain economically viable. And as someone who has three papers delivered to his door daily, I fully support protecting the print news media.
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At the request of Federal Circuit Chief Judge Michel, an all-star panel was established to create a comprehensive set of model patent jury instructions -- click here to download them. The panel included patent litigation heavy weights like Don Dunner and federal judges -- Judges Ward (E.D. Texas) and Whyte (N.D. Cal.). The Federal Circuit has not officially endorsed the jury instructions, but they are very comprehensive and deal with just about every recent case law development. In particular, they provide an excellent glossary of patent terms for the jury (something that should be in every set of patent jury instructions, but often is not) and they provide two KSR obviousness instructions, one for if the jury is making the final determination and one if the judge does (the panel could not come to a consensus on what the correct reading of the law was).
The one instruction I had hoped to see that was missing was an instruction for awarding royalties on post-verdict sales -- see the MTTLR Blog on the issue here or read commentary on Judge Clark's plan to submit post-verdict damages to the jury here at Michael Smith's E.D. Texas blog. If anyone has seen an instruction for post-verdict damages, send it to me and I will post it for all to consider.
You can also read more about patent jury instructions in the Blog's archives -- click here for the Seventh Circuit's model patent jury instructions and here for a list of jury instructions Northern District judges have offered as precedent in IP cases.
Hat tip to Dennis Crouch for linking to the new model jury instructions here at Patently-O.
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Anne Reed has an excellent post at her Deliberations blog about improving the voir dire system based upon Judge Mize's and Center for Jury Studies director Paula Hannaford-Agor's new paper, Building a Better Voir Dire -- click here to read the post and for a link to a pdf of the article, which is also worth the read. Reed's post and the article fit well with my recent series of posts on the Seventh Circuit's American Jury Project report -- to read those posts and for a copy of the report, click here (juror questions); here (preliminary jury instructions); here (12 person juries); here (interim statements by counsel)and here (Phase I principles).
Reed nails a huge problem with improving voir dire specifically or the trial process generally -- judges and lawyers have different interests. Judges who do lots of trials while facing bulging dockets and populations with little interest in appearing for jury duty often want trials over quickly and efficiently using the smallest jury pool possible. Lawyers want to know as much as possible about as large a pool of jurors as possible. Of course, the more in-depth the voir dire process, the more time it takes. And the process of testing new ideas and improving upon voir dire, or any part of the trial process, also takes time up front, even if it saves time in the long term. But Reed, Mize and Hannaford-Agor identify two resources that help limit the upfront costs for judges -- the American Jury Project and the NCSC's State-of-the-States Survey. Both are incredible resources for judges that want to try new approaches to better serve all trial stakeholders.
Most of all though, it is exhilirating to see important groups like the NCSC and the Seventh Circuit massing their resources to evaluate and improve the trial process. I look forward to covering more efforts like these and to continuing the discussion about how to best try cases in our courts.
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I previously described the high-level findings of the Seventh Circuit’s American Jury Project – click here for that post, including links to PDFs of the report and related documents. Having discussed the four Principles studied in Phase Two,* this post looks at the additional three Principles considered only during Phase One: juror questionnaires, deliberation guidance, and trial … Continue Reading
I previously described the high-level findings of the Seventh Circuit's American Jury Project - click here for that post, including links to PDFs of the report and related documents. Having discussed the Commission's findings, I am now looking at findings for the specific Principles studied. This post focuses on twelve person juries.
In seventeen trials, counsel were allowed to make interim statements before or after witness testimony and at the end or beginning of each week, as follows:
Counsel could make interim statements before or after their questioning of a witness, on either direct or cross;
The statements were given outside the presence of fact witnesses;
Counsel could object having interim statements just as in an opening or closing, but could not respond to them, to avoid excessive contentiousness;Advance notice of interim statements was not required;
Counsel's statements for a trial were time-limited at the start of trial; and
Counsel were given ten minutes at the end and beginning of each trial week to summarize old testimony or preview the coming testimony.
83% of judges using interim statements would use them again and believed they assisted juror understanding. No judge reported abuse of interim statements. Most judges that did not try interim statements believed they would decrease trial efficiency.
Both trial counsel and jurors agreed with the judges that interim statements improved trials. 90% of jurors thought the interim statements were helpful for introducing or summarizing evidence.
The Commission suggests courts use interim statements for trials lasting longer than one week. The longer a trial runs, interim statements become both more helpful and more critical to juror understanding.
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I previously described the high-level findings of the Seventh Circuit's American Jury Project - click here for that post, including links to PDFs of the report and related documents. Having discussed the Commission's findings, I am now looking at findings for the specific Principles studied. This post focuses on twelve person juries - click here for a previous post regarding juror questions and click here for a previous post regarding preliminary jury instructions.
Twelve person juries had the least conclusive results of the four Phase Two Principles. Mathematical modeling and other data suggested that twelve person juries would increase jury diversity and, therefore, presumably fairness. Fifty trials used twelve person juries. 50% of the judges in the trials believed the larger panels resulted in increased diversity, but only 39% of the trial attorneys agreed. But relatively few judges (25%) and trial attorneys (25%) thought the larger juries increased the fairness of the trial. Judges (78%) and trial attorneys (64%) largely agreed that the larger juries did not decrease trial efficiency. Finally, 93% of jurors and 77% of attorneys agreed that "the right number" of jurors were empanelled expanded in their cases.
The actual fairness of trials may not have been improved by larger juries. But the increased diversity of the twelve person jurors should at least increase the perception of fairness. Much of the power of our judicial system rests in a shared public perception of its fairness. The perception of fairness, therefore, is critical to the system. As a result, I agree with the Commission's finding that, despite the inconclusive findings, twelve person juries warrant at least further study, if not widespread adoption.
Finally, one interesting procedural note: courts across the country face consistent problems filling jury pools. So, increasing jury sizes will strain an already strapped system. This is partially resolved by the Commission's decision not to increase each side's three peremptory challenges along with the increased jury sizes. Not increasing peremptory challenges reduces the increased strain on the jury pool and helps increase diversity, but it also limits counsels' ability to pick the best possible jury. There may not be a perfect solution to this problem, but it is, at a minimum, an interesting tension that warrants additional study.
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I previously described the high-level findings of the Seventh Circuit's American Jury Project - click here for that post, including links to PDFs of the report and related documents. Having discussed the Commission's findings, I am now looking at findings for the specific Principles studied -- click here for the last post discussing the use of juror questions.
The second Phase Two Principle tested was substantive preliminary jury instructions. Courts were instructed to follow traditional jury instruction procedures to develop initial substantive jury instructions explaining:
The jury's rule;
Trial procedures, including taking notes and juror questions - click here for the Blog's post about jury questions;
The native and evaluation of evidence;
Issues to be addressed;
The elements of the claims; and
Jurors' obligations during trial.
Courts were also encouraged to repeat instructions throughout trials as necessary. When I clerked for District Judge Gordon Quest (W.D. Mich.), I saw numerous trials, in a very short period, all of which used preliminary instructions. It is hard to believe a trial without preliminary instructions could be as effective as one with them. Most jurors come to a trial without significant trial experience beyond Law & Order or CSI - both great series, but lousy juror education. Going through a trial without instructions until the end is like asking people to play football, without telling the rules of the game until the fourth quarter. The results of the study confirm my belief. Thirty four trials used preliminary instructions. Judges from 87% of the trials reported that the preliminary instructions approved juror understanding. 80% of the judges said the instructions increased the judge's satisfaction with the trials. And judges believed that the instructions increased fairness in 76% of the trials. No judge believed that the instructions harmed the trial process. Chief Judge Holderman believed the preliminary instruction were valuable:
I have found that preliminary instructions helped to orient the jurors to the case and allowed the jurors to start making connections between the evidence and the disputed issues in the case more quickly.
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I previously described the high-level findings of the Seventh Circuit's American Jury Project - click here for that post, including links to PDFs of the report and related documents. Having discussed the Commission's findings, I am now looking at findings for the specific Principles studied.
First up is allowing jurors to submit written questions for witnesses. As I discussed previously, jurors and judges both overwhelmingly believed juror questions benefited both juries and trials. It is hard to imagine that juror questions would not benefit trials and justice. If you ever have the opportunity for a post-trial discussion with a jury, a common theme is what the jury did not understand about the trial and the questions jurors wanted the lawyers to ask. While it is a little frightening for trial lawyers to give up some control of the trial process, overall both sides are better off with the jurors' questions answered, removing a huge distraction for jurors. And you can learn much about how a jury is leaning or what you need to do in your case by listening to jurors' questions.
Of course, as with most things during a trial, the details are very important. The Commission used the following initial jury instruction explaining that written questions could be submitted, that they would be asked only if allowed by the Fed. R. Evid., that they might be revised to comport with the Rules, and that questions may or may not be asked of all witnesses:
In this trial, we are using a procedure that you may not have seen before. As members of the jury, you will be permitted to submit questions for a witness after the lawyers have finished questioning the witness. Here is how the procedure works: After each witness has testified and the lawyers have asked all of their questions, I will turn to the jury to see if anyone has any additional questions. If you have a question, you should write it down and give it to the court staff.
You may submit a question for a witness to clarity or help you understand the evidence. Our experience with juror questions indicates that a juror will rarely have more than a few questions for one witness, and there may be no questions for some witnesses.
If you submit a question, the court staff will provide it to me and I will share your questions with the lawyers in the case. If your question is permitted under the rules of evidence, I will read your question tot the witness so that the witness may answer it. In some instances, I may modify the form of phrasing of a question so that it is proper under the rules of evidence. On other occasions, I may not allow the witness to answer a question, either because the question cannot be asked under the law, or because another witness is in a better position to answer the question. Of course, if I cannot allow the witness to answer a question, you should not draw any conclusions from that fact, or speculate on what the answer might be.
Here are several important things to keep in mind about your questions for the witnesses.
First, all questions mush be submitted in writing. Please do not ask questions orally of any witness.
Second, witnesses may not be re-called to the witness stand for additional juror questions, so if you have a question for a particular witness, you should submit it at the end of that witness's testimony.
Finally, as jurors you should remain neutral and open throughout the trial. As a result, you should always phrase any questions in a neutral way that does not express an opinion abut the case or a witness. Remember that at the end of the trial, you will be deciding the case. For that reason, you must keep an open mind until you have hard all of the evidence and the closing arguments of counsel, and I have given you final instructions on the law.
The following instruction was used at the end of trials:
During the trial, written questions by some members of the jury have been submitted to be asked of certain witnesses. Testimony answering a question submitted by a juror should be considered in the same manner as any other evidence in the case. If you submitted a question that was not asked, that is because I determined that under the rules of evidence the answer would not be admissible, just as when I sustained any objection to questions posed by counsel. You should draw no conclusion or inference from my ruling on any question, and you should not speculate about the possible answer to any question that was not asked or to which I sustained an objection.
Jurors were allowed to ask questions in 38 trials, and asked questions in 31 of those. 56% of jurors asked at least one question. Judges (63%), litigators (60%), and juries (87%) generally agreed that jurors asked an appropriate number of questions. Most jurors said that their questions were for the purpose of:
Getting additional information;
Linking evidence; or
Covering something lawyers missed.
Judges (77%) and litigators (65%) largely agreed that juror questions increased juror understanding and that they did not harm trial efficiency - judges (75%) and litigators (66%). Even the losing litigators largely believed juror questions enhanced juror understanding. Based upon this data, it appears that juror questions should be widely adopted.
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The Seventh Circuit instituted a Commission to study the implementation of the ABA Jury Project. The Northern District was heavily represented on the Commission. The following Northern District Judges were members of the Commission: Bucklo, Brown, Coar, Darrah, Denlow, Der-Yeghiayan, Gottschall, Holderman, Kennelly, Lefkow, Moran, Schenkier, St. Eve, and Zagel. The Commission recently published its report -- click here to read it. The report describes a two phase analysis. In the first phase, district judges tested the following seven ABA Principles:
1. Twelve-Person Juries;
2. Jury Selection Questionnaires;
3. Preliminary Substantive Jury Instructions;
4. Trial Time Limits;
5. Juror Questions;
6. Interim Trial Statements by Counsel; and
7. Enhanced Jury Deliberations.
Other Principles, such as juror notebooks and allowing jurors to take notes, were already in such widespread use that they were not tested. Click here for the Phase One Project manual detailing the principles, the rationales and authority behind them, and suggested procedures. Phase One resulted in questionnaires from 22 participating federal trial judges, 74 participating attorneys and 303 jurors from 38 trials that used one or more of the seven Principles. Based upon the analysis of Phase One results and questionnaires, the Commission focused Phase Two on the following four Principles:
1. Juror Questions;
2. Interim Trial Statements by Counsel;
3. Twelve-Person Juries; and
4. Preliminary Substantive Jury Instructions.
These Principles were chosen because of Phase One popularity (78% of jurors reported that being able to ask questions increased their satisfaction with the process) and because of a desire to study the Principles more. Click here for the Phase Two manual.
In Phase Two, 108 jurors from 12 trials employing one or more of the Phase Two Principles filled out questionnaires. In addition, 12 attorneys and 4 district judges that participated also filled out questionnaires. The results are interesting, but more importantly create the opportunity to powerfully impact the trial system across the Seventh Circuit in ways that benefit all of the stakeholders in the trial process -- the litigants, the jurors, the judge and the judge's chambers, and the litigators.
All four of the Phase Two Principles showed significant benefits to the trial process. 83% of jurors reported an increased understanding of the facts when allowed to ask written questions through a judge -- the questions were reworded to meet evidentiary rules. And 75% of judges and 65% of attorneys thought the questions benefited jurors. Similarly, preliminary substantive jury instructions were found to improve trials by jurors (80%), judges (85%) and attorneys (70%). And the same was true for interim statements to the jury -- jurors (80%) and judges (85%). Finally, twelve-person juries were found not to harm efficiency, while increasing juror diversity.
Each of the four Phase Two Principles, as well as several of the additional three Phase One Principles deserve more attention and analysis. So, over the next several weeks I will provide follow up posts discussing the findings of those Principles in greater detail. I will start with the idea of juror questions, which I find particularly important, later this week or early next.
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The Seventh Circuit's Judge Posner is scheduled to begin a bench trial this morning on the issue of inequitable conduct in New Medium Technologies LLC v. Barco NV, No. 05 C 5620. The trial is scheduled to last today and tomorrow, but could go as long as Wednesday. I represented a party that was in the case, but settled and was dismissed from the case last year. As a result, I have not covered any opinions from the case, previously before Judge St. Eve. But I am going to observe some of the trial, and I may blog about the trial if I find some interesting things to say that relate more to the trial techniques of counsel or Judge Posner's courtroom than the facts of the case.
But if you are interested in watching Judge Posner hear a patent case or what I expect to be some excellent advocacy from the Niro firm, for plaintiffs, and Baker & McKenzie, for defendants, the bench trial is being heard in Judge St. Eve's courtroom.
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Miyano Machinery USA, Inc. v. MiyanoHitec Machinery, Inc., No. 08 C 526, 2008 WL 236610 (N.D. Ill. Jun. 6, 2008) (Nolan, Mag. J.).
Judge Nolan granted plaintiff's motion to quash defendants' subpoenas of plaintiff's counsel - who represented: 1) plaintiffs and perhaps individual defendants in plaintiffs' earlier trademark prosecution; and 2) plaintiffs in this case. The Court denied defendants' motions to compel production of communications between plaintiffs and plaintiffs' counsel and to pierce the privilege.
Defendants argued that plaintiffs committed fraud on the PTO, and therefore inequitable conduct, when plaintiffs' counsel allegedly knowingly submitted false declarations during prosecution of plaintiffs' trademarks. Defendants based their claims on an allegedly privileged communication between plaintiff and its counsel (Exhibit L) that plaintiffs claimed was inadvertently produced.
The Court held that Exhibit L was inadvertently produced - it was just one document among 22,000 pages and plaintiffs requested its return immediately after discovering its production. Furthermore, Exhibit L was essentially a list of questions from counsel to plaintiffs, by which counsel was making sure he had sufficient information to file the declarations in question - evidence supporting plaintiffs' defense of defendants' inequitable conduct claims.
Finally, while the Seventh Circuit had not ruled on the correct test for whether to allow attorney depositions, the Court followed what it held was the prevailing test in the Northern District, as set forth in Shelton v. American Motors Corp., 805 F.2d 1323, 1327 (8th Cir. 1986):
1. No other available means for obtaining the information;
2. Information is relevant and not privileged; and
3. Information is crucial to the case.
Id. Because plaintiffs identified four other individuals allegedly having the information - some of whom had not been deposed - defendants had not met their burden to depose plaintiffs' counsel.
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