Case 2:15-cv-01274-JRG-RSP Document 182 Filed 10/11/16 Page 1 of 12 PageID #: 6665
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`Civil Action No. 2:15-cv-01274-JRG-RSP
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`(LEAD CASE)
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`JURY TRIAL DEMANDED
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`Civil Action No. 2:15-cv-01277-JRG-RSP
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`(CONSOLIDATED CASE)
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`JURY TRIAL DEMANDED
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`BLITZSAFE TEXAS, LLC,
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`Plaintiff,
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`v.
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`HONDA MOTOR CO., LTD. ET AL
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`Defendants.
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`BLITZSAFE TEXAS, LLC,
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`Plaintiff,
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`TOYOTA MOTOR CORPORATION ET AL
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`v.
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`Defendants.
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`TOYOTA’S REPLY IN SUPPORT OF ITS MOTION TO DISQUALIFY PLAINTIFF’S
`COUNSEL
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`Toyota submits this Reply to address issues raised in Plaintiff Blitzsafe Texas, LLC’s
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`Opposition to Toyota’s Motion to Disqualify filed Sept. 29, 2016 (Dkt. 174) (“Blitzsafe’s
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`Opposition” or “Opp.”).
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`I.
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`INTRODUCTION
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`Blitzsafe does not dispute that Mr. Rubino was privy to, still remembers, and has shared
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`with his colleagues, Toyota’s most sensitive patent litigation strategies, including strategies for
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`settlement, navigating local EDTX rules and procedures, and mediating before Judge Folsom.
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`Blitzsafe argues only that this information is not “relevant” because the currently accused in-
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`vehicle technology (in Blitzsafe’s words, “interfaces which allow an external audio player to be
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`connected to a car radio”) is not exactly the same as the technology at issue during Mr. Rubino’s
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`prior representations of Toyota. Blitzsafe’s argument is meritless.
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`The relevant conflict test is whether the “representation in reasonable probability will
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`involve a violation” of the duty of confidentiality, not whether the accused technologies are
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`necessarily identical. Here, Toyota has gone above and beyond the required showing, see
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`Duncan v. Merrill Lynch, 646 F.2d 1020, 1028 (5th Cir. 1981) (the “party seeking
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`disqualification is not required to point to specific confidences revealed to former attorney that
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`are relevant to pending case”), and offered more than two dozen examples of confidential
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`communications received by Mr. Rubino that go to the heart of Toyota’s EDTX litigation, Inter
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`Partes Review (IPR), and settlement strategy. While made in the context of the AVS matters,
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`each of these communications sheds light on how Toyota is likely to litigate this similarly-
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`situated case. Mr. Rubino even has knowledge of Toyota’s confidential analyses of witnesses
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`who may testify at trial in this case, and had personal responsibility for logging their privileged
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`communications. It is of no moment that Mr. Rubino did not personally meet these witnesses,
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`1
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`enter an appearance in any of the prior litigations, or interact with in-house Toyota attorneys.
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`The key fact is that Blitzsafe has not offered a declaration from Mr. Rubino, or otherwise denied,
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`that he possesses, remembers, and has shared critical Toyota confidential information. 1
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`Blitzsafe makes much of the fact that Toyota has known for months that Mr. Rubino was
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`hired by Brown Rudnick, and asserts that the Berkowitz declaration is misleading for omitting
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`this fact. But Mr. Rubino’s mere hiring by Brown Rudnick is not the basis for Toyota’s motion;
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`as Mr. Berkowitz put it during his deposition, Toyota “assumed that Brown Rudnick and Mr.
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`Rubino were honoring their ethical obligations . . . and that he was being screened off from the
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`case.” Berkowitz Tr.,2 156:8-13. Toyota “provided that professional deference.” Berkowitz Tr.,
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`156:13-14. This professional deference was not in any way a waiver or a license for Brown
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`Rudnick to elevate Mr. Rubino from screened-off associate to integrated litigation team-member
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`positioned to disclose and misuse Toyota’s confidential information. When Toyota learned
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`about Mr. Rubino’s new role (through its own diligence, and not through notice by Blitzsafe), it
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`objected within a matter of days, and filed a motion as soon as practical thereafter. No case law
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`that Blitzsafe cites supports a theory that Toyota waived a right to object under these
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`circumstances.
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`Toyota takes this issue very seriously. Should the Court deny this motion, it would all
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`but eliminate Toyota’s confidence that its attorney-client communications will remain
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`confidential and not used to its disadvantage. See TEX. DISC. R. 1.05, cmt. 1. (“Free discussion
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`should prevail between lawyer and client in order for the lawyer to be fully informed and for the
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`1 Not only did Mr. Rubino not submit a rebuttal declaration, but Blitzsafe objected to his
`noticed deposition.
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`2 Refers to the Deposition Transcript of Matthew G. Berkowitz, Exhibit A of the Fabricant
`Declaration submitted with Blitzsafe’s Opposition.
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`2
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`client to obtain the full benefit of the legal system.”) As such, the Court should disqualify
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`Brown Rudnick and grant Toyota the other relief requested in its briefing.
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`II.
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`ARGUMENT
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`A.
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`Blitzsafe Does Not Dispute that Mr. Rubino Was Privy To, and Still
`Remembers, Toyota’s Highly Confidential Strategy Analyses Concerning
`EDTX Patent Litigation and Witnesses Who Will Testify in this Case
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`Nowhere in its 23-page response does Blitzsafe dispute that Mr. Rubino possesses the
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`information outlined in the Berkowitz Declaration, that he remembers it, and that he has shared it
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`with his colleagues at Brown Rudnick (and possibly, with McKool Smith). 3
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`Blitzsafe simply argues that Mr. Rubino’s Toyota knowledge-base is not “relevant,”
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`because, unlike the cases where Mr. Rubino represented Toyota, this case involves “connecting
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`an external device such as an iPod or iPhone to a car’s audio system using an interface.” Opp. at
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`7. Blitzsafe slices this matter far too thin, and misstates the law. Toyota need not show that the
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`AVS matters Mr. Rubino worked on previously are “substantially related” to the present case. 4
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`Rather, Mr. Rubino's present representation of Blitzsafe gives rise to an ethical conflict because
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`he “possesses relevant, confidential information such that there is a reasonable probability that
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`3 Regardless, Mr. Rubino is irrebuttably presumed to have shared the confidential information.
`See Grant v. Thirteenth Court of Appeals, 888 S.W.2d 466, 467 (Tex. 1994) (“any rule
`focusing on actual disclosure would place a virtually insurmountable burden on the party
`seeking disqualification, since the only persons who know whether confidences were actually
`shared will generally be the very lawyers seeking to avoid disqualification.”)
`4 In any event, the “substantial relationship” analysis does not focus on whether the specifically
`accused technologies are identical, as Blitzsafe suggests, but on whether “reasonable persons”
`would understand the confidential information known to the conflicted attorney to be
`“important to the issues involved” in the case. In re Corrugated Container Antitrust
`Litigation, 659 F.2d 1341, 1346 (5th Cir. 1981) (overruled on other grounds by Gibbs v.
`Paluk, 742 F.2d 181, 185 (5th Cir. 1984)); Osborn v. District Court, Fourteenth Judicial
`District, 619 P.2d 41, 47 n. 10, 48 (Colo. 1980) (the term “substantially related” is equivalent
`to the expression “facts of which are somewhat interwoven” or similar factual situations and
`legal questions).
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`3
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`the information could be used to the former client’s disadvantage.” Abney v. Wal-Mart, 984 F.
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`Supp. 526, 528 (E.D. Tex. 1997). Islander E. Rental Program v. Ferguson, 917 F.Supp. 504,
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`511 (S.D. Tex. 1996) (disqualification is appropriate where the “confidences could be used to
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`[the former] client’s disadvantage in [the current] litigation”) Further, a presumption attaches
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`that a lawyer in possession of client confidences shares those confidences with other lawyers at
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`his firm. In re Am. Airlines 972 F.2d at 614 n. 1 (citing Corrugated Container, 659 F.2d at
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`1346).
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`Here, Toyota has submitted evidence that Mr. Rubino spent more than 1500 hours over
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`the last three years representing Toyota in patent litigation in the EDTX and parallel IPR
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`proceedings (like the present matter).5 Compare Carbo Ceramics, Inc. v. Norton-Alcoa
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`Proppants, 155 F.R.D. 158, 162 (N.D. Tex. 1994) (“extremely confidential matters which are
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`privileged may be communicated in a conversation of less than a few minutes, irrespective of
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`whether or not billable time was generated.”). While some of his prior representations concerned
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`different Toyota technology (e.g., exterior vehicle monitoring systems), the thousands of
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`confidential emails, memos, and presentations that Mr. Rubino reviewed while defending those
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`prior cases are directly applicable to this matter. Toyota’s unrebutted evidence demonstrates that
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`Mr. Rubino knows Toyota’s EDTX patent litigation strategy, how it mediates before Judge
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`Folsom, and its different trigger points for settlement in view of various EDTX litigation
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`outcomes and parallel IPR proceedings. He had access to Toyota’s IPR strategy, which was not
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`“general” as AVS suggests, but rather, as Mr. Berkowitz testified, “specific to Toyota, very
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`specific to Toyota.” Berkowitz Tr., 164:3-6. Even if those confidential discussions were made
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`5 As indicated in the Motion, Toyota offers to submit the documents identified in the Berkowitz
`Declaration to the Court for in camera review.
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`4
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`in the context of the AVS matters, Mr. Rubino can surely use the playbook from that litigation to
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`predict Toyota’s next moves in this matter. See Emle Indus., Inc. v. Patentex, Inc., 478 F.2d 562,
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`571 (2d Cir. 1973) (“Even the most rigorous self-discipline might not prevent a lawyer from
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`unconsciously using or manipulating a confidence acquired in the earlier representation and
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`transforming it to telling advantage in the subsequent litigation . . . The dynamics of litigation are
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`far too subtle, the attorney’s role in the process is far too critical, and the public’s interest in the
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`outcome is far too great to leave room for even the slightest doubt concerning the ethical
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`propriety of a lawyer’s representation in a given case.”)
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`To make matters worse, Mr. Rubino represented Toyota concerning its connected vehicle
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`technology (i.e., connecting electronics in the vehicle to external sources). Although Blitzsafe is
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`correct that Mr. Rubino did not specifically litigate patents for Toyota accusing audio interface
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`connections, he did work on cases involving other aspects of Toyota’s connected vehicle
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`technology, which implicate many of the same witnesses and engineering documents. Indeed,
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`two of Toyota’s potential trial witnesses in this case—Messrs. Satoshi Hata and Brian Inouye—
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`are knowledgeable about Toyota’s connected vehicle technology and were witnesses in the AVS
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`Matters that Mr. Rubino litigated for Toyota. Again, Blitzsafe does not dispute that Mr. Rubino
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`had access to, still remembers, and has shared with his colleagues, confidential internal
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`evaluations of these specific trial witnesses. It is difficult to imagine how Mr. Rubino could have
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`been exposed to more relevant confidential information.
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`Blitzsafe casts Mr. Rubino as a “young” associate with a “minor” role who did not enter
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`appearances in any Toyota litigation, meet Toyota’s in-house team, or personally contribute to
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`Toyota’s strategy decisions. However, Mr. Rubino started with Kenyon in 2007, meaning that
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`he had been litigating patent cases for nearly 6 years by the time he was first added to the Toyota
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`5
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`litigation team. Berkowitz Decl.,6 at ¶ 15. It is undisputed that he billed more than 1500 hours
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`of time to various Toyota litigation matters. Berkowitz Dec., ¶ 11. Moreover, associates, just
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`like partners, are subject to disqualification where representation would risk disclosure of their
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`clients’ confidences. See TEX. DISC. R. 1.09 (prohibition against adverse representation applies
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`to “lawyers” and imputing conflict to firm when lawyers “have become members or associated
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`with a firm…”) (emphasis added); Cf. Grant, 888 S.W.2d at 466 (disqualification warranted
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`where law firm temporarily hired opposing counsel’s former secretary).
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`Moreover, as a senior associate on the team, Mr. Rubino was “expected to be familiar
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`with, client communications.” Berkowitz Decl., ¶ 11. Mr. Rubino does not dispute this fact. It
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`is of no moment whether Mr. Rubino personally formulated Toyota’s strategies or spent time
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`with Toyota’s in-house team; the pertinent fact is that Mr. Rubino knows Toyota’s playbook for
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`defending and settling patent cases in the EDTX, and of particular relevance to this case, knows
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`Toyota’s evaluation of its own trial witnesses. This is far different than the Duncan case that
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`Blitzsafe cites, where the moving party offered only a “general, superficial connection” between
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`the prior representations and the existing lawsuit. Duncan, 646 F.2d at 1030.
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`Contrary to Blitzsafe’s argument, Toyota’s position is narrow, and would not unduly
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`hinder future employment of ex-Kenyon associates. Indeed, Brown Rudnick has now hired at
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`least four former Kenyon associates in just the last twelve months, all of whom have entered
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`appearances and are now suing Toyota in this case. In Toyota’s view, however, and given the
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`particular circumstances of this matter, Mr. Rubino is the only one who justifies disqualification,
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`and only then because Blitzsafe recently decided to staff him on this litigation. Mr. Rubino’s
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`6 Refers to the Declaration of Matthew G. Berkowitz, which was submitted as Exhibit A to
`Toyota’s Motion (“Mot.”) (Dkt. 143).
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`6
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`involvement with Toyota matters was far too extensive, and much too close to this litigation—in
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`terms of the same court, witnesses, documents and mediator—to attack Toyota’s concerns as an
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`unreasonable limitation on associate mobility or overly broad interpretation of the ethical rules.
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`B.
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`Toyota Did Not Waive Its Right to Object to Mr. Rubino’s Elevation from
`Screened-Off Associate to Integrated Team Member Involved with
`Countering Toyota’s Litigation Strategy and Preparing for Examination of
`Toyota’s Witnesses
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`Blitzsafe goes to great lengths to prove that Toyota knew, in late 2015, that Mr. Rubino
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`had joined Brown Rudnick, and spews rhetoric about how Mr. Berkowitz and Ms. Lofgren “hid”
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`this fact from the Court. Blitzsafe argues that, as a result of this knowledge, Toyota waived its
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`right to object to the conflict. There is absolutely no case law to support Blitzsafe’s position.
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`Toyota readily admits that it has known for many months that Brown Rudnick hired Mr.
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`Rubino in 2015. The reason why Toyota didn’t discuss this in its opening motion, and why Mr.
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`Berkowitz and Ms. Lofgren have different memories on the topic, is because it’s a wholly-
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`irrelevant fact. Toyota’s motion is not based on Mr. Rubino’s mere hire at Brown Rudnick, it is
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`based on Brown Rudnick’s very recent decision to staff him on the litigation and utilize his
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`intimate knowledge of Toyota’s confidences. Toyota did not learn of that decision until August
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`2016. Until that time, Toyota had provided Mr. Rubino and Brown Rudnick with “professional
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`deference,” assuming that they were “honoring their ethical obligations and that [Mr. Rubino]
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`was being screened off from the case.” Berkowitz Tr., 156:9-14.7 There is no case supporting
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`Blitzsafe’s position that a former client waives its rights when the circumstances drastically
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`7 Blitzsafe asserts that Toyota’s position would result in disqualification of “every former
`Kenon associate who worked on an AVS matter (and any law firm who hires that associate)
`from ever being adverse to Toyota in a patent case.” Opp. at 12. This assertion is without
`merit–it is the specific confidential information that Mr. Rubino acquired, which is relevant to
`this action, that creates the ethical conflict, not the mere fact that an associate previously
`worked on a case on behalf of Toyota in some abstract capacity.
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`7
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`change, as they did here. Compare In re Epic Holdings, Inc., 985 S.W.2d 41, 53-54 (Tex. 1998)
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`(rejecting waiver argument because of changed circumstances); Ullrich v. Hearst Corp., 809
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`F.Supp. 229, 236 (S.D.N.Y. 1992) (finding no waiver and reasoning that, “it may be that on the
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`particular facts, Hearst did not believe that it risked significant violation of its confidences.”); In
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`re Hoar Const., LLC, 256 S.W.3d 790, 798 (Tex. App. 2008) (trial court did not abuse its
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`discretion in determining that movant had not waived its disqualification arguments after the
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`“litigation landscape changed” and the defendant added counterclaims to the case).
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`The two “waiver” cases that Blitzsafe cites (Opp. at 19-20) are inapposite.
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`In Abney, the plaintiff filed a motion to disqualify on the eve of trial based on facts that
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`existed more than a year earlier. Abney, 984 F.Supp. at 530. Nothing in that case suggests that
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`Toyota waived its right to object when Blitzsafe elevated Mr. Rubino from screened-off
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`associate to integrated team member.
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`Similarly, in HECI Exploration, the plaintiff filed a disqualification motion based on
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`facts that existed 11 months prior, after the non-moving party had moved for summary judgment
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`and the conflicted attorney had participated in six depositions. HECI Expl. v. Clajon Gas Co.,
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`843 S.W.2d 622, 628 (Tex. App. 1992). The key in this case, again, was that the plaintiff had sat
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`on the facts giving rise to the motion until late-stages of the case, which appeared to be a tactical
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`maneuver. Here, Toyota’s motion is based entirely on Blitzsafe’s deliberate and calculated
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`decision to staff Mr. Rubino on the case. Toyota notified Blitzsafe of its objection to this
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`decision within days, and filed its motion within about one month. If Blitzsafe had any questions
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`about whether Toyota would object to Mr. Rubino’s participation in the case, it could have
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`reached out to Toyota and sought a waiver in advance of him entering an appearance. It did not,
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`and should not now stand to complain that it would be prejudiced by disqualification, or that
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`8
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`Toyota somehow waived its right to maintain the confidentiality of its own privileged
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`information.
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`C.
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`Blitzsafe, and Not Toyota, is Engaging in Gamesmanship by Waiting Until
`Near the End of Discovery to Add Mr. Rubino to the Litigation, Knowing
`that Courts Disfavor Disqualification Motions As Trial Approaches
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`It is ironic that Blitzsafe accuses Toyota of gamesmanship, given that Brown Rudnick
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`consciously chose to wait until the end of discovery, about two weeks before Toyota depositions
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`were set to begin, to staff Mr. Rubino on the litigation. Brown Rudnick obviously knew that Mr.
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`Rubino had spent the past few years of his career working mainly for Toyota, and that staffing
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`him on the case would surely result in misuse of Toyota’s confidential information. Perhaps
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`Brown Rudnick thought it could avoid disqualification by waiting until an advanced stage of the
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`case to involve Mr. Rubino, knowing that courts sometimes grow reluctant to disqualify a firm as
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`trial nears, or perhaps it thought that it could rely on its newly-created waiver theory.
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`Regardless, Toyota is certainly not the party that can be accused of a tactical maneuver; Toyota
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`objected within days of learning about Mr. Rubino’s involvement, and filed a motion just about
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`one month later, which was as soon as it could obtain prior case correspondence from Kenyon &
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`Kenyon and assemble a representative set of evidence documenting the extent of Mr. Rubino’s
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`involvement and knowledge. Mot. at 2-3. To the extent that Blitzsafe would suffer harm by
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`Brown Rudnick’s disqualification, this is undoubtedly of Brown Rudnick’s own doing, and is not
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`a reason that Toyota should be prejudiced or lose protection over its attorney-client confidences.
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`See Dynamic 3D Geosolutions LLC v. Schlumberger Ltd., No. 2015-1628, -1629, --- F.3d ----,
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`2016 WL 4729505, at *5 (Fed. Cir. Sept. 12, 2016) (citing In re Am. Airlines, 972 F.2d 605, 616-
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`20 (5th Cir. 1992) (“We recognize that there are important societal rights implicated by attorney
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`disqualification, such as the right of a party to counsel of its own choice and an attorney’s right
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`9
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`to freely practice his or her profession. However, there is an overriding countervailing concern
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`suffusing the ethical rules: a client’s entitlement to an attorney’s adherence to her duty of loyalty,
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`encompassing a duty of confidentiality.”)
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`III. CONCLUSION
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`At stake with this motion is Toyota’s, and the public’s, trust in the attorney-client
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`privilege, and the ethical duties of the legal profession to maintain client confidences. See
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`Brennan’s Inc v. Brennan’s Restaurants, Inc., 590 F.2d 168, 172 (5th Cir. 1979) (misuse of
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`client confidences “would undermine public confidence in the legal system as a means for
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`adjudicating disputes.”) Denial of Toyota’s motion would effectively mean that its patent
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`lawyers could later sue the company for patent infringement on anything other than the identical
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`in-vehicle systems litigated during prior representations. Needless to say, this would have a
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`chilling effect on Toyota’s willingness to discuss strategy with outside attorneys. As such,
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`Toyota respectfully requests that the Court grant its motion to disqualify Brown Rudnick, and, if
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`necessary, McKool Smith, and to strike Toyota’s deposition testimony taken since July 29th
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`when Mr. Rubino entered a notice of appearance. 8
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`Dated: October 11, 2016
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`Respectfully submitted,
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`/s/ J. Thad Heartfield
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`William H. Mandir (pro hac vice)
`John F. Rabena (pro hac vice)
`Yoshinari Kishimoto (pro hac vice)
`Brian K. Shelton (pro hac vice)
`Fadi N. Kiblawi (pro hac vice)
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`8 McKool Smith should also certify to the Court that it has stayed clear of direct or indirect
`communication with Mr. Rubino in view of Blitzsafe’s assertion in its Opposition Brief that
`McKool Smith is “intimately familiar with all aspects of this litigation.” Blitzsafe should not
`gain from misuse of Toyota confidential information, whether it’s by way of Brown Rudnick or
`McKool Smith.
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`10
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`Margaret M. Welsh (pro hac vice)
`SUGHRUE MION PLLC
`2100 Pennsylvania Avenue, NW
`Washington, DC 20037
`Phone: (202) 293-7600
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` J
`
` Thad Heartfield
`State Bar No. 09346800
`THE HEARTFIELD LAW FIRM
`2195 Dowlen Rd
`Beaumont, TX 77706
`Phone: 409-866-3318
`Fax: 409-866-5789
`Email: thad@heartfieldlawfirm.com
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`Attorneys for Toyota Defendants
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`CERTIFICATE OF SERVICE
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`/s/ J. Thad Heartfield
`J. Thad Heartfield
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`I certify that on October 11, 2016, all counsel of record who are deemed to have
`consented to electronic service are being served with a copy of this document via the Court’s
`CM/ECF system. Any other counsel of record will be served in accordance with the Federal
`Rules of Civil Procedure.
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`11
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