Representing Yourself Can Generate Fees

• Author: Mark A. Flores
• Pages: 23-24

Published in Litigation News Volume 45, Number 4, Summer 20 20. © 2020 by the Ameri can Bar Association. Re produced with per mission. All rights re served. This info rmation or any porti on thereof may not be c opied or disseminated in any

form or by any means or sto red in an electronic da tabase or retrieval sy stem without the ex press writt en consent of the Amer ican Bar Associatio n.

including communications between

SecurityPoint and an outside equity

investor ca lled Raptor.

Raptor’s interest in th e case was

based on a pre- existing equity agree-

ment that gave it an owner ship interest

in the patents at issu e as well as a “liti-

gation fundin g agreement” that perm it-

ted SecurityPo int to receive f‌inancing

for the case while g iving Raptor a prior-

ity claim to the proce eds from the suit if

SecurityPoi nt were to prevail.

SecurityPoi nt objected to the TSA’s

request for com munications with

Raptor, claiming that the c ommunica-

tions were privileg ed because the two

companies sh ared a common legal in-

terest. Securi tyPoint also argued the

communicatio ns related to legal, not

commercial, m atters. While the TSA

conceded that the documents relat-

ed to privileged l egal matters, the gov-

ernment conten ded that SecurityPoint

waived its privileg e claim by sharing

the communic ations with Raptor.

The court expla ined that for the

common interest d octrine to apply,

the shared interes t between the par-

ties “must be a leg al one, not mere-

ly commercial.” And the communi-

cation must be m ade in “furtherance

of that common pur pose.” The court

also noted that the co mmon interest

doctrine protec ts only communica-

tions “regardin g this lawsuit and

other legal qu estions concerning

the patent.”

Applying these principles, the court

found that Raptor, as an eq uity inves-

tor in SecurityP oint, had a legal in-

terest in Securit yPoint’s patents and

thus a common interest “sucient

to protect its commu nications with

SecurityPoint (and vice versa) regard-

ing this lawsuit and oth er legal ques-

tions concerni ng the patent.”

The decision was consistent with

the basic goals of intellectual prop-

erty (IP) law, according to Michael D.

Steger, New York, NY, former cochair

of the Section of Litigation’s Intellectual

Property Litigation Committee. “Various

statutes dealing with intellectual prop-

erty are based on the idea that protect-

ing IP rights will promote the develop-

ment of the arts and sciences. It makes

sense then that the law would provide

people who have aligned incentives in

protecting their IP with the ability to

discuss legal issues related to validity,”

Steger explains.

The decision hi ghlights the impor-

tance of developin g and implement-

ing strategies to pres erve privileged

information, e specially in complicated

commercial litigation where the lines

between third pa rties and insiders can

be murk y. Email communications ca n

pose particul ar challenges in the con-

text of complex comm ercial litigation

where parties a re discussing many is-

sues and working i n multiple roles. “If

parties outs ide the privileged relation-

ship need to be inc luded in a conver-

sation, begin a n ew email chain rath-

er than simply for warding an email that

contains privileged information,” coun-

sels Foster.

Representing

Yourself Can

Generate Fees

By Mark A. Flo res, Litigation News

Contributing Editor

A state supreme cou rt has approved

an award of attorney fee s for an at-

torney who defend ed herself in a

lawsuit. In armi ng the award of

attorney fees to a pro se pa rty, the

court conside red that doing so might

deter future frivol ous litigation. T he

decision divid ed the court, h owever.

It also has divide d ABA Section of

Litigation leade rs. Some agree with

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