Case 2:15-cv-01274-JRG-RSP Document 195 Filed 10/21/16 Page 1 of 8 PageID #: 6778
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`BLITZSAFE TEXAS, LLC,
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`Plaintiff,
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`Case No. 2:15-CV-1274-JRG-RSP
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`(LEAD CASE)
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`JURY TRIAL DEMANDED
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`PLAINTIFF BLITZSAFE TEXAS LLC’S SUR-REPLY IN OPPOSITION TO
`TOYOTA’S MOTION TO DISQUALIFY PLAINTIFF’S COUNSEL
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`HONDA MOTOR CO., LTD., ET AL.,
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`v.
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` Defendants.
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`Case 2:15-cv-01274-JRG-RSP Document 195 Filed 10/21/16 Page 2 of 8 PageID #: 6779
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`Plaintiff Blitzsafe Texas, LLC (“Blitzsafe”) hereby submits its Sur-Reply in Opposition
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`to Toyota’s Motion to Disqualify Plaintiff’s Counsel.
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`I.
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`Toyota Waived the Right to Assert a Conflict of Interest
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`Toyota’s lack of candor in its initial submission is rivaled only by its lack of candor on
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`reply. Prior to the meet-and-confer on this motion, Toyota took the position that Brown Rudnick
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`never should have hired Mr. Rubino in November 2015, because of his alleged conflict, stating
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`in an August 30, 2016 e-mail from its counsel William Mandir:
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`At the time Mr. Rubino was hired by Brown Rudnick, he was working on Toyota
`litigations. The Blitzsafe case was also being litigated at this time. In view of this
`conflict, it is Toyota’s position that Brown Rudnick should not have hired
`Mr. Rubino. …
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`See Exhibit 1 to the accompanying Declaration of Alfred R. Fabricant (“Fabricant Decl.”)
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`(emphasis added). During the meet-and-confer that same day, Brown Rudnick informed Toyota
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`that it had waived any conflict because it learned of Mr. Rubino’s arrival at Brown Rudnick in
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`November 2015, but had taken no action. Three days later, aware that waiver was a central
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`issue, Christine L. Lofgren testified that she learned from her outside counsel that Mr. Rubino
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`had left Kenyon in August 2016 even though Matthew Berkowitz, the only attorney who reports
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`to Ms. Lofgren, told her in December 2015 or January 2016 that Mr. Rubino had gone to Brown
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`Rudnick. Mr. Berkowitz attended Ms. Lofgren’s deposition and no doubt participated in her
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`preparation for the deposition, and yet Toyota would have this Court believe that Mr. Berkowitz
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`never reminded Ms. Logfren prior to her deposition that he had told her eight months earlier that
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`Mr. Rubino had been hired by the law firm representing Blitzsafe in this action. Then, even if he
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`did not remind Ms. Lofgren of this fact prior to her deposition, upon hearing Ms. Lofgren’s
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`testimony that he knew to be inaccurate, Mr. Berkowitz failed to correct it, either during her
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`deposition or thereafter, and submitted a declaration seeming to corroborate her false testimony.
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`(Dkt. 143-1 ¶ 26.) It was only when he testified under oath in his own deposition that he
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`Case 2:15-cv-01274-JRG-RSP Document 195 Filed 10/21/16 Page 3 of 8 PageID #: 6780
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`admitted what Brown Rudnick knew to be true. Now, on reply, “Toyota readily admits that it has
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`known for many months that Brown Rudnick hired Mr. Rubino in 2015,” (Dkt. 183 at 7
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`(emphasis added)), while somehow failing to explain to the Court why this critical fact, which
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`was the subject of the meet-and-confer, was not disclosed to the Court in its opening brief or in
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`the Berkowitz Declaration. There would be no reason to omit this critical fact from the opening
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`brief and supporting declaration except to avoid the waiver problem.
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`Toyota’s story is not only factually suspect, it is legally inconsistent. Toyota has
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`repeatedly stated that if Mr. Rubino has disqualifying confidential information, it would have
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`been imputed to Brown Rudnick upon his hire, and the firm must be disqualified regardless of
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`whether the information is actually shared. (Dkt. 182 at 3-4.) In its reply, Toyota changes its
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`revised argument which is now that “Mr. Rubino’s mere hiring by Brown Rudnick is not the
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`basis for Toyota’s motion.” (Dkt. 182 at 2.) Toyota is now urging that a conflict of interest did
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`not arise upon Mr. Rubino’s hiring, but attached only when he appeared in late July 2016.1
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`Toyota presents no authority to support its hybrid conflict theory that it did not waive the conflict
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`because it believed that Mr. Rubino was being screened off from this matter even though a
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`confidentiality screen would be ineffectual to prevent confidential information from being
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`imputed to Brown Rudnick under the controlling law relied on by Toyota. Nor does such
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`authority exist.
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`Having taken extreme liberties with the law and facts, Toyota tries to cloak itself in
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`professionalism by arguing that it did not waive any conflict because it declined to seek
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`disqualification sooner in the exercise of “professional deference.” (Dkt. 182 at 2.) Even putting
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`1 Toyota appears to concede certain facts that establish that Rubino's actual involvement in the Blitzsafe litigation
`does not present a conflict. It is undisputed that: Rubino took two depositions in the Blitzsafe litigations, one of a
`Honda 30(b)(6) witness and the other of a Nissan 30(b)(6) witness. Those depositions concerned only Nissan and
`Honda products and had nothing whatsoever to do with Toyota. Rubino participated in a deposition of a former
`Blitzsafe employee, Ed Fischer, who was a non-party witness That deposition related to Blitzsafe's own products
`and technology. Toyota does not contend nor is there any evidence that Mr. Rubino ever worked on the Blitzsafe
`litigation against Toyota but rather only that he was in possession of the "playbook."
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`2
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`Case 2:15-cv-01274-JRG-RSP Document 195 Filed 10/21/16 Page 4 of 8 PageID #: 6781
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`aside Toyota’s lack of candor with the Court, it is beyond belief that Toyota, in a single brief,
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`can sound the alarm that Mr. Rubino brought the coveted Toyota litigation playbook to Brown
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`Rudnick and that, if allowed to continue, its confidence in the attorney client privilege would be
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`eliminated (id.), but nonetheless declined to seek disqualification for almost nine months while
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`this entire case was litigated at great expense in the name of “professional deference.” This
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`motion should be seen for what it truly is, a litigation tactic. No matter how Toyota attempts to
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`frame the argument, the only purported ethical conflict raised by Toyota is that Mr. Rubino
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`possessed highly confidential information when he arrived at Brown Rudnick. Toyota’s attempt
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`in its reply brief to avoid waiver by arguing that the conflict was triggered only by Mr. Rubino’s
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`appearance at a deposition in the Honda case should be rejected because the date of his
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`appearance is irrelevant to that conflict analysis. It is nothing more than an excuse manufactured
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`to avoid waiver.
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`II.
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`Toyota Has Failed To Establish That Mr. Rubino Has Relevant Toyota
`Confidential Information
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`Toyota’s reply continues to argue that Mr. Rubino knows Toyota’s litigation “playbook”
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`because while at Kenyon he, along with everyone else on a “list serv” bulk delivery service,
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`received emails in the AVS matters. It is conceded by Toyota that he did not even work on most
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`of these AVS cases. (Dkt. 174 at 6-7; Dkt. 182-6.) But, Toyota has not shown that Mr. Rubino
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`received important policy or procedure documents that rise to the level of a confidential
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`“playbook” which could be used to Toyota’s disadvantage in this case, or that he had the type of
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`long-standing and central role in Toyota litigation matters that the case law requires to show a
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`deep knowledge of Toyota’s litigation practices. (Dkt. 174 at 17.) Rather, Toyota argues that
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`since Mr. Rubino received documents concerning AVS matters, Mr. Rubino can “predict
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`Toyota’s next moves in this matter.” (Dkt. 182 at 4-5.) The claim that Toyota’s “moves” in this
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`case are so easily predicted based on the AVS matters is incredible given that this case involves
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`3
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`Case 2:15-cv-01274-JRG-RSP Document 195 Filed 10/21/16 Page 5 of 8 PageID #: 6782
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`different parties, different patents, different accused products and technology, different attorneys,
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`and different infringement and invalidity risks.
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`Toyota offers no explanation for its allegation that Mr. Rubino, who Toyota concedes
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`never appeared of record in any Toyota matter, nor met with Toyota’s in-house team nor
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`contributed to strategic decisions (Dkt. 182 at 5), somehow holds the keys to Toyota’s litigation
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`kingdom based on his work spent primarily drafting IPR documents.2 If Toyota’s breathless and
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`panicked claims of prejudice were true, it would have moved for disqualification the moment
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`that Ms. Lofgren and Masahiro Yamashita, who is in charge of this matter, learned that
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`Mr. Rubino had arrived at Brown Rudnick at least ten months ago. Yet, upon being told that
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`Mr. Rubino had left Kenyon for Brown Rudnick , neither the Toyota employees nor their counsel
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`took any action whatsoever. They did not put Brown Rudnick on notice that there was any
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`conflict or even a concern. To the contrary, Mr. Berkowitz continued his frequent and ongoing e-
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`mails, texts, phone calls and personal get-togethers with Mr. Rubino, even asking him who from
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`Brown Rudnick was arguing the Markman hearing. Such inaction strongly evidences that, at the
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`time, Toyota had no concern that Mr. Rubino held the litigation “playbook” or possessed any
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`other confidential Toyota information that could be used against Toyota in this lawsuit. Toyota’s
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`decision to forego seeking disqualification until its fortunes in this litigation had soured belies
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`Toyota’s true motivations.
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`Contrary to Toyota’s argument, Blitzsafe has never argued that the technology in the
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`AVS matters must be identical to the technology in this case for a conflict to arise. (D.E.182 at
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`3.) Rather, the standard is whether Mr. Rubino “possesses relevant, confidential information
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`such that there is a reasonable probability that the information could be used to the former
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`client’s disadvantage.” Abney v. Wal-Mart, 984 F. Supp. 526, 528 (E.D. Tex. 1997). In view of
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`2 To this day, Toyota has not raised any conflicts issue or made a disqualification motion to the Patent Trial and
`Appeal Board. This is not surprising since no conflict of interest can reasonably arise from comparing the unrelated
`AVS patents to the publicly available prior art in an IPR petition.
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`Case 2:15-cv-01274-JRG-RSP Document 195 Filed 10/21/16 Page 6 of 8 PageID #: 6783
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`the lack of “playbook” evidence or any other factual nexus, the unquestionable difference in
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`technology between the AVS matters and this case shows that any knowledge Mr. Rubino may
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`have been exposed to in his prior job is not disqualifying because such information is irrelevant
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`to this case and necessarily cannot be used here to Toyota’s disadvantage.
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`In its reply, Toyota makes much of the fact that Mr. Rubino did not submit a declaration
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`in opposition to this motion, but Toyota argued in its opening brief that any denial that
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`Mr. Rubino remembered the information he allegedly received would be insufficient, and that he
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`is presumed to have disclosed any information to other members of Brown Rudnick. (Dkt. 143
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`at 11-12.) Moreover, without access to the purportedly thousands of AVS e-mails sent to him
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`via a “listserv,” or to any of the other documents only generally referred to by Toyota, it would
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`not be reasonably possible for Mr. Rubino to comment from memory as to the nature of the
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`information contained in those documents. The attempt to force Mr. Rubino to prove a negative
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`is just another example of Toyota trying to divert attention from its own failure to establish that
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`Mr. Rubino possessed such critical confidential information. What has been established, based
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`solely upon the Berkowitz deposition testimony, is that Mr. Rubino never worked on any case
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`for Toyota that involved the technology or patents at issue. None of Mr. Rubino’s work on
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`Toyota matters had anything to do with car radios or the ability of an occupant to play music
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`through a car audio system. Any suggestion to the contrary by Toyota is pure fantasy. Nor did
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`he have client contact, interact with Toyota witnesses, or otherwise participate in any decision-
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`making with respect to the unrelated IPRs or AVS litigation.
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`III. CONCLUSION
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`For the foregoing reasons, Blitzsafe respectfully requests that Toyota’s Motion to
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`Disqualify Plaintiff’s Counsel be denied in all respects.
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`5
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`Case 2:15-cv-01274-JRG-RSP Document 195 Filed 10/21/16 Page 7 of 8 PageID #: 6784
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`Dated: October 21, 2016
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`BROWN RUDNICK LLP
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` /s/ Alfred R. Fabricant
`Alfred R. Fabricant
`Texas Bar No. 2219392
`Email: afabricant@brownrudnick.com
`Lawrence C. Drucker
`Email: ldrucker@brownrudnick.com
`Texas Bar No. 2303089
`Peter Lambrianakos
`Texas Bar No. 2894392
`Email: plambrianakos@brownrudnick.com
`Alessandra Carcaterra Messing
`Texas Bar No. 5040019
`Email: amessing@brownrudnick.com
`BROWN RUDNICK LLP
`7 Times Square
`New York, NY 10036
`Telephone: (212) 209-4800
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`Samuel F. Baxter
`Texas State Bar No. 01938000
`sbaxter@mckoolsmith.com
`Jennifer L. Truelove
`Texas State Bar No. 24012906
`jtruelove@mckoolsmith.com
`MCKOOL SMITH, P.C.
`104 E. Houston Street, Suite 300
`Marshall, Texas 75670
`Telephone: (903) 923-9000
`Facsimile: (903) 923-9099
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`ATTORNEYS FOR PLAINTIFF,
`BLITZSAFE TEXAS, LLC
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`Case 2:15-cv-01274-JRG-RSP Document 195 Filed 10/21/16 Page 8 of 8 PageID #: 6785
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`CERTIFICATE OF SERVICE
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`The undersigned certifies that all counsel of record who have consented to electronic
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`service are being served with a copy of this document via the Court’s CM/ECF system per Local
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`Rule CV-5(a)(3) on this 21st day of October, 2016.
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`Alfred R. Fabricant
`/s/
` Alfred R. Fabricant
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