Tuesday, April 27, 2010

Imputation Risk and Joint Defense Agreements

Nintendo is a defendent in a patent suit (SHARED MEMORY GRAPHICS, LLC v. Apple Inc. et al). As reported today in Corporate Counsel, it just moved to disqualify the plantiff's firm on the grounds that it previously participated in a joint-defense where it was exposed to Nintendo's confidential information:
  • "...during the course of a prior representation in a substantially related matter and pursuant to a joint defense agreement, Floyd & Buss attorneys received Nintendo's confidential information." Nintendo's motion claimed that Floyd & Buss' representation of Shared Memory is "directly adverse to its current client Advanced Micro Devices (AMD) Inc."
It remains to be seen if Nintendo will prevail, what the nature of the confidential information was, what the specific details of the joint defense agreement were (the Nintendo brief was filed under seal), or if the plantiff's firm employed any ethical screening measures.

But as reported by Corporate Counsel, the plantiff's firm's managing partner noted that if Nintendo prevails it would be: "extremely risky for a company entering into an joint defense agreement in that all knowledge is imputed to everyone in your organization. Companies often enter into joint defense agreements with their own competitors."

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