Case 4:09-cv-01827 Document 106 Filed in TXSD on 06/02/10 Page 1 of 6
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF TEXAS
`HOUSTON DIVISION
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`WESTERNGECO LLC,
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` Plaintiff,
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`v.
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`ION GEOPHYSICAL CORP.,
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`§§
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`§ CIVIL ACTION NO. 09-cv-1827
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`MEMORANDUM AND ORDER
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` Defendant.
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`Pending before the Court is a Motion for Relief from WesternGeco’s Objections to Ion's
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`Consultants filed by Defendant Ion Geophysical Corporation ("Ion") (Doc. No. 95). Also
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`pending is the Opposition to Ion's Proposed Experts filed by Plaintiff WesternGeco LLC
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`(“WesternGeco”) (Doc. No. 97).
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` Each of these submissions considers Ion's designation of four named individuals (the
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`"Proposed Experts") to serve as expert consultants in this case. WesternGeco opposes the use of
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`the Proposed Experts, asserting that they have conflicts of interest because of work they
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`previously did on behalf of WesternGeco or its parent during which they received confidential
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`and privileged information. The issue has arisen because, as provided in a Protective Order
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`entered herein, Ion notified WesternGeco that it intended for the Proposed Experts to review
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`confidential documents produced in this case. WesternGeco timely objected, as also provided by
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`the Protective Order. WesternGeco now seeks to disqualify these experts from serving as
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`consultants for Ion.
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`I.
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`LEGAL STANDARD
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`1
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`PGS Exhibit 1096, pg. 1
`PGS v. WesternGeco (IPR2014-00688)
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`Case 4:09-cv-01827 Document 106 Filed in TXSD on 06/02/10 Page 2 of 6
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`Disqualification of experts is warranted where: 1) the retaining party and the expert had a
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`relationship that permitted the retaining party to reasonably expect that its communication with
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`the expert would maintained in confidence; and (2) confidential or privileged information was, in
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`fact, provided to the expert by the party seeking disqualification. Koch Refining Co. v. Jennifer
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`L. Boudreaux M/V, 85 F.3d 1178, 1182-83 (5th Cir. 1996). Both questions must be answered in
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`the affirmative in order for the witness to be disqualified. Dyna-Drill Techonologies Inc. v.
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`Conforma Clad Inc., 2005 WL 5979403, at *1 (S.D. Tex. May 16, 2005). Courts have generally
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`found that the first prong of this test is met when “the record supports a longstanding series of
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`interactions, which have more likely than not coalesced to create a basic understanding of the
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`[retaining party’s] modus operandi, patterns of operations, decision-making process, and the
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`like.” Koch, 85 F.3d at 1182. By contrast, when the expert was not retained, was not supplied
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`with specific data that is relevant to the case, and was not requested to perform any services, the
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`experts is generally not subject to exclusion. Id.
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`II. MR. RICK WORKMAN
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`After reviewing the submissions of the parties and hearing oral argument, the Court
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`concludes that Mr. Rick Workman should be excluded as an expert in this case. Mr. Workman
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`served as an employee of WesternGeco’s predecessor, Western Geophysical (“Western”), for
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`nearly two decades. Although they did not overlap, Mr. Workman worked in the same Applied
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`Technology Group as Mark Zajac, the inventor of one of the patents being asserted in this
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`litigation. Indeed, during oral argument, WesternGeco pointed out that Mr. Workman was titled
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`“Chief Geophysicist” during his tenure with this group. (See Workman Decl., Doc. No. 103 Ex.
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`F, ¶¶ 3-6.) Moreover, Mr. Workman directly participated in technology development for
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`products related to the streamer positioning devices that are at the heart of this dispute, including
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`2
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`PGS Exhibit 1096, pg. 2
`PGS v. WesternGeco (IPR2014-00688)
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`Case 4:09-cv-01827 Document 106 Filed in TXSD on 06/02/10 Page 3 of 6
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`streamer-cable design and ocean-bottom cable testing. (WesternGeco Br., Doc. No. 97, Ex. 16.)
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`Mr. Workman was also involved with a published patent that deals with “a method for
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`controlling the position and shape of marine seismic streamer cable.” (Id. Ex. 19.) Ion admits
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`that, during this time, “lateral-streamer steering was a hot topic in the industry and its potential
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`was widely discussed.” (Ion Br., Doc. No. 103, at 6.)
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`Considering these facts, the Court concludes that the first part of the Koch test is easily
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`met. Based on the nature and extent of Mr. Workman’s employment relationship with
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`WesternGeco’s predecessor, there exists an objectively reasonable basis upon which to believe
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`that communications between Mr. Workman and Western were confidential. See Dyna-Drill,
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`2005 WL 5979403, at *1 (noting that it was objectively reasonable for the defendant to believe
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`that a confidential relationship existed between it and its former employee where the employee
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`was substantially involved in the development of the alleged trade secrets at issue).
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`Ion’s primary argument is that the second part of the Koch test cannot be met because,
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`during his tenure at Western, Mr. Workman never received or possessed confidential information
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`that it relevant to this litigation. However, given that Mr. Workman’s field of expertise closely
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`relates to, if not encompasses, the technology taught by the patents-in-suit, the Court is
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`unpersuaded by Ion’s argument. Indeed, it is difficult if not impossible to imagine how Mr.
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`Workman could have performed his apparent high-level function as Chief Geophysicist in charge
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`of projects related to marine seismic cables if confidential or privileged information that is
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`substantially related to the patents-in-suit were not provided to him. Ion also points out that Mr.
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`Workman’s work at Western did not involve the specific inventions that are in dispute between
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`these parties. However, at this stage in the dispute, before the confidential information has been
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`fully disclosed and reviewed by Ion’s counsel or its experts, the Court lacks confidence in Ion’s
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`3
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`PGS Exhibit 1096, pg. 3
`PGS v. WesternGeco (IPR2014-00688)
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`Case 4:09-cv-01827 Document 106 Filed in TXSD on 06/02/10 Page 4 of 6
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`ability to accurately assess what knowledge and expertise will be useful in this litigation. It
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`seems logical that, even if Mr. Workman did not work directly on projects involving marine
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`streamer positioning devices—although the published patent attached to WesternGeco’s brief
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`reveals that he might have—the expertise and knowledge that he acquired as a senior scientist in
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`the Applied Technology Group of Western will nonetheless be applicable to his evaluation of the
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`confidential documents. As such, Court is convinced that, due to his tenure and senior position in
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`the same group within which at least some of the technology at issue was developed, Mr.
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`Workman did receive confidential information during his time at Western that could, and
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`probably would, be relevant to this litigation. Accordingly, the Court holds that Mr. Workman is
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`disqualified from serving as an expert in this case.
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`III.
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`FTI EXPERTS
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` As to the three other Proposed Experts—Lance Gunderson, Todd Schoettelkotte, and
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`Armando Chavez (“FTI Experts” collectively)—the Court holds that these experts need not be
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`excluded from participating as experts in this litigation. The parties appear to agree that the FTI
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`Experts did work for WesternGeco’s parent, Sclumberger. They differ as to whether the nature or
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`amount of that work should disqualify the experts from serving in this case.
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`The declarations of the FTI Experts reveals that in September 2007, Mr. Schoettelkotte
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`and Mr. Chavez spent about one month preparing preliminary documents for Schlumberger’s in-
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`house counsel to explain what work FTI Consultants, Inc. (“FTI”) would do if retained by
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`Schlumberger to work on a royalty dispute. (Schoettelkotte Decl., Doc. 103 Ex. D, ¶¶ 5-6.)
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`These preliminary documents consisted of a royalty work review program and a litigation work
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`review program. (Id. ¶ 4.) Mr. Schoettelkotte avers that the bulk of the time spent preparing these
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`documents was spend reviewing publicly available data regarding royalty rates. (Id. ¶ 5.)
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`4
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`PGS Exhibit 1096, pg. 4
`PGS v. WesternGeco (IPR2014-00688)
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`Case 4:09-cv-01827 Document 106 Filed in TXSD on 06/02/10 Page 5 of 6
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`Apparently, Schlumberger ultimately chose not to hire FTI to do any further work on the dispute.
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`(Id. ¶ 6.) Mr. Gunderson attended an initial meeting with Schlumberger, but, after learning of the
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`proposed project and realizing that his services were not needed, left the room and had no further
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`involvement in the project. (Gunderson Decl., Doc. 103 Ex. C, ¶ 4.).
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`The Court finds and holds that, with respect to the FTI experts, neither prong of the Koch
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`test is met. First, it is not entirely clear to this Court that Schlumberger’s previous relationship
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`with the FTI Experts may be imputed to WesternGeco, a wholly separate company. But, more
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`importantly, even if this relationship could be imputed, the Court does not find that the
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`relationship between the FTI Experts and Schlumberger is of the long-standing and substantive
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`nature that would give rise to a presumption of confidentiality. Indeed, the relationship between
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`these experts and Schlumberger lasted only one month, and was spent in preparation of
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`preliminary documents. These preliminary communications did not lead to a continuing
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`relationship, as none of the FTI Experts was ultimately retained. Accordingly, the Court finds no
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`evidence that an objectively reasonable confidential relationship existed between these parties.
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`Moreover, the Court fails to see how preliminary work on a royalty dispute over oilfield
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`technologies is related to the technologies at issue in this case. Indeed, in their declarations, the
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`FTI Experts explicitly deny receiving any confidential information from WesternGeco or an
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`affiliated company that relates to this litigation. (Gunderson Decl. ¶¶ 6-7; Schoettelkotte Decl. ¶¶
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`9-10; Chavez Decl., Doc. 103 Ex. E, ¶¶ 5-6.) Accordingly, the Court concludes that the FTI
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`experts need not be excluded from serving as experts in this case.
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`IV. CONCLUSION
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`5
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`PGS Exhibit 1096, pg. 5
`PGS v. WesternGeco (IPR2014-00688)
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`Case 4:09-cv-01827 Document 106 Filed in TXSD on 06/02/10 Page 6 of 6
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`Ion’s Motion for Miscellaneous Relief (Doc. No. 95) is GRANTED IN PART and
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`DENIED IN PART. Rick Workman is hereby excluded from serving as an expert in this case.
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`The FTI Experts are not so excluded.
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` IT IS SO ORDERED.
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` SIGNED this 2nd day of June, 2010.
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`KEITH P. ELLISON
`UNITED STATES DISTRICT JUDGE
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`6
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`PGS Exhibit 1096, pg. 6
`PGS v. WesternGeco (IPR2014-00688)