Streetspace, Inc v. Google, Inc. et al

Filing 46

Ex Parte MOTION for Leave to File a Sur-Reply to Streetspace's Reply in Support of Motion to Disqualify Counsel by Millennial Media, Inc. (Attachments: # 1 Memo of Points and Authorities, # 2 Declaration of John Kyle, # 3 Exhibit A, # 4 Exhibit B, # 5 Exhibit C)(Kyle, John) (kaj).

EXHIBIT B

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COOLEY LLP
JOHN S. KYLE (CA 199196)
[e-mail]
4401 Eastgate Mall
San Diego, California 92121
Telephone: (858)
550-6000
Facsimile: (858)
550-6420
FRANK V. PIETRANTONIO (pro hac vice)
[e-mail]
CHRISTOPHER C. CAMPBELL (pro hac vice)
[e-mail]
One Freedom Square
11951 Freedom Drive
Reston, VA 20190-5656
Telephone: (703)
456-8000
Facsimile: (703)
456-8100
Attorneys for Defendants
MILLENNIAL MEDIA, INC.

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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STREETSPACE, INC.,
Plaintiff,

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v.
GOOGLE INC.; ADMOB, INC.; APPLE
INC.; QUATTRO WIRELESS, INC.; NOKIA
CORPORATION; NOKIA INC.; NAVTEQ
CORPORATION; MILLENNIAL MEDIA,
INC.; JUMPTAP, INC.; and DOES 1 through
20,

Case No. 3:10-CV-01757-LAB-WMC
MILLENNIAL MEDIA’S SUR-REPLY
BRIEF TO STREETSPACE’S REPLY
IN SUPPORT OF MOTION TO
DISQUALIFY COUNSEL
Date: TBD
Time: TBD
Courtroom: 9, 2nd Floor
Judge:
Hon. Larry Alan Burns

Defendants.

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COOLEY LLP
ATTORNEYS AT LAW

MILLENNIAL MEDIA’S SUR-REPLY

Case No. 10-cv-1757-LAB-AJB

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I.

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INTRODUCTION
Millennial Media respectfully provides this sur-reply in response to Streetspace’s Reply to

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Disqualify Counsel for Millennial Media.

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II.

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STREETSPACE CONTINUES TO CONFUSE THE LAW AND FACTS
The fact that Mr. Campbell and Cooley LLP never represented Streetspace is

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uncontroverted. Realizing that it cannot demonstrate that Mr. Campbell or Cooley ever

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represented Streetspace or possessed confidential information of Streetspace, Streetspace now

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tries a new tact, citing cases even further afield, namely Flatt v. Superior Court, 9 Cal. 4th 275

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(1994). Flatt, unlike H.F. Ahmanson & Co. v. Salomon Bros., Inc., 229 Cal. App. 3d 1445

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(1991), is not even a case involving “successive representation.” Instead, Flatt involves

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“simultaneous” representations of adverse clients. Id. at 284 (“Both the interest implicated and

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the governing test are different, however, where an attorney’s potentially conflicting

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representations are simultaneous.”1 (emphasis in original).)
In Flatt, attorney Flatt disengaged plaintiff Daniel after an initial consultation because a

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subsequent “conflicts check” showed that Flatt’s firm was then simultaneously representing in an

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unrelated matter the party adverse to Daniel. Flatt, 9 Cal. 4th at 280. The Flatt Court

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“assum[ed] that the circumstances [of the initial consultation] . . . were sufficient to make Daniel

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a client of Flatt” and so the representation of the adverse party by Flatt’s firm was deemed

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“simultaneous.” Id. at 281 (emphasis in original). Flatt then contrasted the “substantial

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relationship” test in cases of “successive representation of clients” to the “more stringent”

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standard applicable for “simultaneous” representations. Id. at 283-84 (emphasis in original).

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Even the Virginia cases cited by Streetspace are inapplicable. Reply at 2, n.2. The leading case
cited by Streetspace, Sunbeam Products, Inc. v. Hamilton Beach Brands, Inc., 727 F. Supp. 2d
469 (E.D. Va. 2010) is a case involving “successive representation.” There, the firm-switching
attorney, Chen, represented at his prior firm the accused infringer in patent prosecution matters.
In that prior engagement, Chen analyzed prior art for the patent application he drafted covering
the accused product, and he performed non-infringement analysis of the accused product. Id. at
475. Then, in the subsequent infringement litigation, the patent owner, who was represented by
Chen’s new firm, used the patents Chen drafted previously as evidence in the claim construction
process. In disqualifying Chen’s new firm, the court stated, “[i]n the successive representation
context, the rules guard against the possibility of impropriety by prohibiting the kind of scenarios
that would enable impropriety most easily to occur.” Id. at 476.

COOLEY LLP
ATTORNEYS AT LAW

MILLENNIAL MEDIA’S SUR-REPLY

1.

Case No. 10-cv-1757-LAB-AJB

In stark contrast to Flatt, the issue before the Court here involves neither successive nor

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simultaneous representations. In situations like these, courts apply a “modified” substantial

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relationship test. However, even when begrudgingly acknowledging Adams v. Aerojet-General,

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86 Cal. App. 4th 1324 (Cal. Ct. App. 2001) as the controlling law, Streetpace conflates “probable

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access” with the “modified” substantial relationship test. (Reply at 5-9.) Further, while

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ostensibly applying Adams, Streetspace continues to cite Elan Transdermal Ltd. v. Cygnus

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Therapeutic Systems, 809 F. Supp. 1383 (N.D. Cal. 1992). (Reply at 6-7.) But Elan too involved

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a successive representation and is inapplicable where the firm-switching attorney “did not

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personally represent the former client [of his former firm] who now seeks to remove him from the

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case . . . .” Adams, 86 Cal. App. 4th at 1340.

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In the face of three declarations demonstrating exactly the opposite of “probable

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access”—two of which were from disinterested witnesses—Streetspace continues with its

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erroneous assertion that “Mr. Campbell is a former intellectual property partner in the

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Washington, D.C. office of [Hunton] — the same intellectual property group of the same office

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of the same firm that prosecuted” the ‘969 patent, and that “Mr. Campbell’s administrative and

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management duties unquestionably placed him in a position were he would have been exposed to

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matters relevant to the current dispute.” (Reply at 1 and 8 (emphasis in original).) These

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unsupported statements notwithstanding, Streetspace wholly failed to rebut the uncontroverted

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evidence that Mr. Campbell was not based in the Hunton’s Washington, D.C. office during Mr.

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Coddington’s tenure with Hunton, and that he did not hold any management functions including

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in his capacity as a partner on the Hunton intellectual property team. (Doody Decl. ¶¶ 4, 7;

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Duncan Decl. ¶¶ 4, 7; Campbell Decl. ¶¶ 4-5.). Furthermore, contrary to Mr. Coddington’s

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declaration, Mr. Campbell was not in the D.C. office “on numerous and regular occasions.” In

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fact, during the timeframe of Mr. Coddington’s tenure with Hunton, Mr. Campbell estimates that

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he visited the D.C. office of Hunton perhaps once every 2-3 months. (Campbell Sur-Reply Decl.

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¶ 4.)

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In one last desperate attempt to create a conflict where none exists, Streetspace contends
that Mr. Campbell was “one of only 4 or 5 intellectual property partners in electrical cases at

COOLEY LLP
ATTORNEYS AT LAW

MILLENNIAL MEDIA’S SUR-REPLY

2.

Case No. 10-cv-1757-LAB-AJB

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Hunton’s Washington, D.C. office.” (Reply at 7 (emphasis in original); Reply at 3 (“As one of

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only 5 or 6 patent attorney partners in electrical engineering-type cases in Hunton’s Washington,

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D.C. office . . . .”).) To the contrary, Mr. Campbell was not among the 4 or 5 intellectual property

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partners in electrical cases at Hunton’s Washington, D.C. office. (Campbell Sur-Reply Decl. ¶ 2.)

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In fact, Mr. Campbell does not even have an electrical engineering degree, but instead has a

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mechanical engineering degree. (Id. ¶ 1.) Further, because he does not have an electrical

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engineering degree, Mr. Campbell was not one of the attorneys at Hunton “focused on technology

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matters relating to electronics and telecommunications.” (Campbell Sur-Reply Decl. ¶ 1; cf.

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Coddington Reply Decl. ¶ 6.)

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III.

MR. CODDINGTON’S DECLARATION CONFIRMS THAT MR. CAMPBELL
WAS NOT EXPOSED TO CONFIDENTIAL INFORMATION
Supported by declarations from two disinterested witnesses, Millennial Media thoroughly

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explained that at Hunton, “Mr. Campbell was not in a position with respect to Streetspace to

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likely have acquired confidential information material to the current representation.” (Opp’n at

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13.) Mr. Coddington finally conceded, as he must, that “Mr. Campbell did not have a permanent

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physical office in Washington, DC”. (Dkt. No. 40-1, “Coddington Reply Decl.” ¶ 8)

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Streetspace’s remaining basis of disqualification consists of two Patent Office opinions

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and one court filing listing Mr. Campbell’s name with Hunton’s Washington, D.C. mailing

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address (Coddington Reply Decl. ¶ 9). The listing of a mailing address for service of court and

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agency documents is quite different from actually working in a particular office. Undoubtedly,

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the evidentiary weight of the mailing address on the three documents vanishes in light of Mr.

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Coddington’s own admission that “Mr. Campbell did not have a permanent physical office in

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Washington, DC.” (Coddington Reply Decl. ¶ 8.) Indeed, the only occasions Mr. Coddington

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specifically recalls to have met Mr. Campbell in person consist entirely of Mr. Coddington’s one

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visit to Mr. Campbell at the McLean, VA office (id. ¶¶ 2-3 (emphasis added)), and “at least one”

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interoffice “Christmas party,” where Mr. Coddington “socialized and discussed various firm

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matters with Mr. Campbell, Mr. Duncan, and/or Mr. Doody” (id. ¶ 5).

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Although entirely irrelevant to the current motion, Streetspace asserts that “Mr.

COOLEY LLP
ATTORNEYS AT LAW

MILLENNIAL MEDIA’S SUR-REPLY

3.

Case No. 10-cv-1757-LAB-AJB

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Coddington reported to Mr. Campbell and Mr. Campbell supervised and critiqued the work

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product of Mr. Coddington.” (Reply at 3.) Yet, the Reply omits Mr. Coddington’s statement

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that had Mr. Coddington not left Hunton, “Mr. Campbell would have likely participated in [the

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evaluation of] (or at least commented on) my performance at the firm . . . .” (Coddington Reply

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Decl. ¶ 4.) In other words, Mr. Coddington admits that Mr. Campbell never participated in the

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evaluation of Mr. Coddington’s performance at Hunton.
Mr. Campbell’s testimony that he “collaborated2 with Mr. Coddington” at Hunton “in

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connection with patent infringement litigation involving entirely unrelated technology (hearing

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aids)” is completely accurate and, in fact, is confirmed by Mr. Coddington. (Campbell Decl. ¶ 7.)

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Curiously, however, Mr. Coddington’s “possession of a memorandum prepared by Mr.

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Coddington for Mr. Campbell” (Reply at 1) must refer to the hearing aids litigation unrelated to

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Streetspace.3 A memorandum prepared by Mr. Coddington for an unrelated third party

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concerning an unrelated subject matter does not in any way rebut that “Mr. Campbell was not in a

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position with respect to Streetspace to likely have acquired confidential information material to

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the current representation.” (Opp’n at 13.) And in fact, Mr. Coddington did not report to Mr.

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Campbell and Mr. Coddington did not prepare any memorandum for Mr. Campbell on

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Streetspace matters at Hunton. (Campbell Sur-Reply Decl. ¶¶ 5-6.)

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IV.

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CONCLUSION
In response to Millennial Media’s Opposition, Streetspace failed to come forward in its

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Reply with any credible evidence that would allow even an inference that Mr. Campbell or

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Cooley were ever exposed to Streetspace’s confidential information. Millennial Media

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respectfully requests that the Court deny Streetspace’s motion to disqualify counsel.

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“Collaborated” is the proper characterization, because Mr. Campbell’s involvement in the
hearing aid matter was minimal at most. (Campbell Sur-Reply Decl. ¶ 3.) Mr. Campbell brought
the hearing aid client to the Hunton firm, but nearly completely entrusted the matter to other
Hunton attorneys, because Mr. Campbell had neither the time nor the technical expertise to
handle the matter—Mr. Campbell has a B.S. in mechanical engineering. (Id. ¶¶ 1, 3.)
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Mr. Coddington apparently admits that he improperly possesses confidential client information
from the hearing aid client, a client of the Hunton firm. Most ironically, however, Mr.
Coddington is further offering to use this unauthorized confidential client document to justify
accusing Mr. Campbell and Cooley of an ethical foul.

COOLEY LLP
ATTORNEYS AT LAW

MILLENNIAL MEDIA’S SUR-REPLY

4.

Case No. 10-cv-1757-LAB-AJB

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Dated: March 14, 2011

COOLEY LLP

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/s/ John S. Kyle

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JOHN S. KYLE (CA 199196)
[e-mail]
4401 Eastgate Mall
San Diego, California 92121
Telephone: (858)
550-6000
Facsimile: (858)
550-6420

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FRANK V. PIETRANTONIO
[e-mail]
CHRISTOPHER C. CAMPBELL
[e-mail]
One Freedom Square
11951 Freedom Drive
Reston, VA 20190-5656
Telephone: (703)
456-8000
Facsimile: (703)
456-8100

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Attorneys for Defendant
MILLENNIAL MEDIA, INC.

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COOLEY LLP
ATTORNEYS AT LAW

MILLENNIAL MEDIA’S SUR-REPLY

5.

Case No. 10-cv-1757-LAB-AJB

CERTIFICATE OF SERVICE

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The undersigned hereby certifies that a true and correct copy of the above and foregoing

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document has been served on March 14, 2011, to all counsel of record who are deemed to have

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consented to electronic service via the Court’s CM/ECF system per Civil Local Rule 5.4. Any

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counsel of record who have not consented to electronic service through the Court’s CM/ECF

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system will be served by electronic mail, first class mail, facsimile and/or overnight delivery.

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/s/ John Kyle_________
John Kyle, Esq.

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471988 v3/RE

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COOLEY LLP
ATTORNEYS AT LAW

MILLENNIAL MEDIA’S SUR-REPLY

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Case No. 10-cv-1757-LAB-AJB