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Clients in the News


McKool Smith Intellectual Property Attorney Doug Cawley in Texas Lawyer article
Apple Lawyer Sanctioned in East Texas Over Deposition Flap
August 13, 2012 11:54 pm

Texas Lawyer:

A judge has sanctioned Apple Inc. for the conduct of one of its lawyers in a high-stakes patent case in Tyler, Texas.

In an 11-page order handed down Wednesday, U.S. District Judge Leonard Davis granted a motion for sanctions requested by VirnetX Inc. and its lawyers at McKool Smith. Davis found that an unnamed Apple lawyer improperly terminated a crucial deposition of an Apple engineer during a pivotal moment of questioning. The judge ordered Apple to pay VirnetX's attorneys fees and costs associated with filing the sanctions motion. The judge also wrote that if Apple doesn't make the engineer available for a follow-up deposition, he will instruct jurors that they can infer that Apple tried to block them from hearing damaging evidence. Davis's order doesn't identify the Apple lawyer who handled the deposition, and the related briefs are under seal.


McKool Smith alleged that the Apple lawyer disrupted the deposition because he wanted time to coach Allie's response. The appropriate sanction, they argued, was an "adverse inference" finding--a jury instruction that they can infer that Allie would have given deposition testimony favorable to VirnetX.

The judge agreed, writing that "an adverse inference finding is appropriate upon a showing of bad faith or bad contact, as in this case." But he gave Apple an out. Apple can avoid the adverse inference finding, he ruled, if it makes Allie available for a follow-up interrogation and refrains from communicating with him beforehand. If Apple communicates with Allie in any way, attorney-client privilege for those communications will be deemed waived.

"Judge Davis came up with a measured remedy that will act to deter this behavior in the future," said VirnetX's lead counsel in the case, Doug Cawley.

We reached out to Apple's lead counsel, Danny Williams of Williams Morgan, but didn't hear back.

McKool Smith Intellectual Property Attorney Doug Cawley in Texas Lawyer article.


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