Cirba Inc. et al v. VMware, Inc.

Filing 1060

MEMORANDUM re 1059 MOTION to Disqualify Special Master filed by Cirba Inc., Cirba IP, Inc. Signed by Special Master John W. Shaw, Esq. on 10/14/21. (ntl)

Case 1:19-cv-00742-LPS Document 1060 Filed 10/14/21 Page 1 of 22 PageID #: 77281

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
CIRBA INC. (d/b/a DENSIFY)
and CIRBA IP, INC.,
Plaintiffs,
v.
VMWARE, INC.,
Defendant.

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Civil Action No. 19-742-LPS

MEMORANDUM
Before me is a motion for disqualification filed by plaintiffs Cirba Inc. (d/b/a
Densify) and Cirba IP, Inc. (together, “Densify”). (D.I. 1059). Defendant
VMware, Inc. (“VMware”) opposes. Each side filed a letter brief outlining its
positions. I conducted a hearing via Zoom on September 27, 2021. Both sides
presented argument and responded to my questions. The Court has entered an
order assigning me to serve as a special master to hear and decide this motion.
(D.I. 1040). This memorandum sets forth the facts and my decision.
Relevant Facts
Judge Stark assigned me to serve as a discovery special master in this action
on January 8, 2021. (D.I. 958). Before the assignment, I evaluated whether I had
any “relationship to the parties, attorneys, action, or court that would require

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disqualification of a judge under 28 U.S.C. §455.” Fed. R. Civ. P. 53(a)(2). In
particular, I conducted a conflict search for each of the parties and the entities
listed in their Federal Rule of Civil Procedure 7.1 disclosure statements (D.I. 4,
73), and then accepted the assignment.
At the time of the assignment, five law firms had entered appearances for
Densify (Morris James LLP (“Morris James”), Reichman Jorgensen Lehman &
Feldberg LLP (“Reichman Jorgensen”), Weinberg Wheeler Hudgins Gunn & Dial,
Law Office of Peter J. Ayers, PLLC, and Kirkland & Ellis LLP (“Kirkland &
Ellis”)) and two law firms had entered appearances for VMware (Young Conaway
Stargatt & Taylor, LLP (“Young Conaway”) and Morrison & Foerster LLP
(“Morrison & Foerster”)). I did not evaluate whether any of the law firms or
attorneys appearing in this litigation had appeared in matters in which Shaw Keller
LLP (“Shaw Keller”) had appeared (regardless of whether they represented the
same clients as Shaw Keller LLP or represented clients adverse to Shaw Keller
LLP clients).
Disclosures between the parties related to disqualification
Shortly after the Court entered the order of appointment, the parties agreed
on their own initiative to exchange information “regarding any connections the
parties and/or their counsel may have with the Special Master and/or Shaw Keller
and vice versa.” (VMware Letter, Exh. A at 12). The parties confirmed at the

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hearing that the purpose of this exchange was to disclose and resolve any potential
grounds for disqualification. (Tr. at 4:19-5:6).
VMware disclosed to Densify that I had entered an appearance and worked
on active matters for two clients in which Morrison & Foerster had also appeared
as counsel for those clients. (Densify Letter, Exh. 2 at 1).1 As shown on the court
docket, the Morrison & Foerster lawyers representing the first client have not
appeared in this litigation. Also as shown on the court docket, several of the
Morrison & Foerster lawyers representing the second client have appeared for
VMware in this litigation. Morrison & Foerster’s representation of the second
client began 22 months after the litigations involving that client commenced.2
VMware separately disclosed that I was working with a Young Conaway estate
planning partner3 and that a Young Conaway attorney provides employment
representation to my law firm, Shaw Keller. I knew about and participated in the
second set of disclosures, but not the first set involving Morrison & Foerster.

1

Shaw Keller and Morrison & Foerster represent the first client in two
litigations, Civil Action Nos. 18-1802-MN and 19-2120-MN. Shaw Keller and
Morrison & Foerster represent the second client in two litigations, Civil Action
Nos. 17-1646-LPS and 17-1647-LPS.

2

See D.I. 243 (Civil Action No. 17-1646-LPS) and D.I. 223 (Civil Action No.
17-1647-LPS).

3

That work ended in April 2021.
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Densify “consent[ed] under Rule 53(a)(2)” after these disclosures. (Densify
Letter, Exh. 3 at 2).
Densify did not disclose any connections or relationships between Densify
or its counsel and Shaw Keller, either to me or to VMware. (VMware Letter, Exh.
A at 1 (“Counsel for Densify is not aware at this time of any relationships or
connections between its attorneys and appointed Special Master John W. Shaw,
Esq. Should we become aware of any such relationships or connections, we will
promptly disclose them.”)).
At the time of my appointment, however, there were four connections
between Densify’s attorneys and Shaw Keller similar to those disclosed by
VMware. I had appeared in three matters for clients in which Kirkland & Ellis
also appeared as counsel for those clients.4 In a fourth matter, other Shaw Keller
attorneys appeared for clients in which Kirkland & Ellis also appeared as counsel
for those clients.5 I advised the parties generally about the Kirkland & Ellis
connections on September 2, 2021, the day after Densify first raised
disqualification based on the facts discussed below, and I provided the civil action
numbers below to the parties after the hearing. VMware has since written to state

4

These matters are Misc. Action No. 20-2930/Civil Action No. 19-1979-LPS,
Civil Action No. 20-859-CFC, and Civil Action No. 20-842-CFC.

5

This matter is Civil Action No. 20-1679-RGA.
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that “to the extent necessary VMware consents to the continued service of the
Special Master notwithstanding the disclosures made to date by the Special Master
and/or Cirba.” (October 4, 2021 email from Anne Shea Gaza).
In addition, at the time of my appointment, lawyers and law firms appearing
on behalf of Densify and VMware had appeared for clients adverse to clients
represented by me or by other Shaw Keller attorneys.6 Neither party disclosed
these matters to the other at the time of my appointment or apparently viewed these
matters as ones that fell within the scope of a “relationship to the parties, attorneys,
action, or court that would require disqualification of a judge under 28 U.S.C.
§455.”
After this assignment commenced, I began to represent a client adverse to a
party represented by Kirkland & Ellis and, separately, a client adverse to a party
represented by Young Conaway.7 Most recently, on September 22, 2021, an

6

At the time of my appointment, I represented clients adverse to parties
represented by Kirkland & Ellis (Civil Action No. 19-1616-LPS), Morris James
(Civil Action No. 20-632-CFC), and Young Conaway (Civil Action No. 191508-MN). Other Shaw Keller attorneys represented a client adverse to a party
represented by Morrison & Foerster (Civil Action No. 18-1359-MN). In Civil
Action Nos. 20-632-CFC and 19-1508-MN, the Morris James and Young
Conaway attorneys representing the parties in this litigation are adverse to the
Shaw Keller clients.

7

Civil Action Nos. 21-977-KAJ and 21-1317-LPS, respectively. Other Shaw
Keller attorneys also began to represent a client adverse to a party represented
by Young Conaway in Civil Action No. 20-1449-LPS.
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attorney of record for Densify appeared in a matter adverse to one of my and Shaw
Keller’s clients, after the parties had submitted their letter briefs on this motion.8 I
provided the civil action numbers of these matters to the parties after the hearing.
Neither party has asserted any of these representations as a reason for
disqualification.
The litigation between Leviton and Corning
In early August of this year, Leviton Manufacturing Company, Inc.
(“Leviton”) filed a complaint against Corning Optical Communications LLC
(“Corning”) in the District of Washington. All parties agree that neither Leviton
nor Corning is related to any of the parties in this litigation. (Tr. at 4:3-7).
Lawyers at Morrison & Foerster appeared as counsel for Leviton, but not any of
the Morrison & Foerster attorneys who have appeared for VMware here.
Reichman Jorgensen, among other lawyers and law firms, later entered an
appearance for Corning.
Corning filed a complaint against Leviton the next day in the District of
Delaware.9 Reichman Jorgensen, among other lawyers and law firms, is listed as
counsel for Corning on the complaint. Corning and Leviton also litigated against
each other at the International Trade Commission. (Densify Letter at 2).

8

Civil Action No. 21-1256-CFC, D.I. 11.

9

Civil Action No. 21-1185-CFC.
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Collectively, I refer to the litigation between Corning and Leviton as the
“Corning/Leviton litigation.” Reichman Jorgensen and Morrison & Foerster have
appeared in at least the District of Washington and District of Delaware matters,
but, other than two Reichman Jorgensen attorneys, no attorney appearing for any
party in this litigation seems to be involved in the Corning/Leviton litigation.
Sometime after Corning filed its complaint in the District of Delaware, one
of my partners contacted a Morrison & Foerster partner who had represented
Leviton in the District of Washington litigation concerning possible representation
of Leviton in Delaware. There is no information in the record as to what prompted
my partner to reach out concerning service as Delaware counsel for Leviton.
Densify characterizes this communication as a “solicitation,” although the
communication is not in the record, and I have not seen it. Correspondence in the
record between the parties and sent to counsel for VMware states that Morrison &
Foerster “retained” my partner. (Densify Letter, Exh. 4 at 1).
At the hearing, I confirmed that none of the Morrison & Foerster attorneys
appearing in this litigation have appeared in the Corning/Leviton litigations and
that counsel for Leviton at Morrison & Foerster have not appeared as counsel for
VMware in this litigation. In response to my questions, counsel from Morrison &
Foerster stated that he did not expect any of the Morrison & Foerster attorneys
appearing for VMware to appear for Leviton or to work on the Corning/Leviton

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matters, and that he did not expect Leviton’s attorneys to appear in or to work on
this litigation. (Tr. at 20:22-21:16). Counsel from Morrison & Foerster also
indicated that, if I required it, a formal mechanism could be implemented to ensure
there is no crossover between the VMware attorneys at Morrison & Foerster and
the Leviton attorneys at Morrison & Foerster. (Id.).
At the time counsel for VMware disclosed the Leviton/Corning matter, they
also disclosed that Shaw Keller had implemented an ethical wall between the
Corning/Leviton matter and this matter, and that Leviton’s attorneys at Morrison &
Foerster are not involved in this litigation. (Densify Letter, Exh. 4 at 1).
Densify’s disqualification motion
On September 1, 2021, counsel for Densify sent an email stating that my
partner had been retained “for a different litigation, but one in which our firm is
identified on the Complaint as representing Corning” and that “[b]ecause of this
new matter, Morrison & Foerster will be paying the law firm of Shaw Keller,
specifically to be adverse to our firm,” and asking for my “views on the potential
conflict so this issue can be resolved quickly.” (Densify Letter, Exh. 6 at 2). I
responded the next day asking Densify to make a formal application if they sought
my disqualification and to submit a letter brief (without page limits) explaining
their position. (Id. at 1). I also asked for each party’s views on the following
question, which tracks several of the factual scenarios described above:

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whether the objection exists if a special master’s law firm were
to serve as local counsel for Party A in an unrelated matter
(e.g., between litigants other than those in the matter assigned
to the special master) in which one or more of the nonDelaware firms appearing in the special master matter also
appears for Party A (or Party A’s opponent) in the unrelated
matter. This question is pertinent because I am counsel for
clients in open and past matters with and against Kirkland &
Ellis, and on open and past matters with and against Morrison
& Foerster.
The parties worked out a briefing schedule, and we set an argument date based on
the parties’ and my availability. The district court entered an order authorizing me
to decide the motion. (D.I. 1040).
Densify’s letter brief identifies two grounds for disqualification—28 U.S.C.
§§455(a) & (b)(4). Federal Rule of Civil Procedure 53(a)(2) makes §455
applicable to special masters. The parties’ letter briefs agree that §455 applies to
this motion.
Section 455(a) provides, substituting “Special Master” for the statutory
phrase “justice, judge, or magistrate judge of the United States”, as follows:
Any [Special Master] shall disqualify himself in any proceeding
in which his impartiality might reasonably be questioned.
Section 455(b)(4) provides:
He shall also disqualify himself in the following circumstances:
*

*

*

He knows that he, individually or as a fiduciary, . . . has . . .
any other interest that could be substantially affected by the
outcome of the proceeding[.]
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Densify’s motion states that “the issue here is that the Special Master’s law
firm has been retained by opposing counsel in this case to litigate against Densify’s
counsel.” (Densify Letter at 4). Densify’s letter goes on to state:
The Special Master’s law firm will be making money from
Morrison & Foerster, and in reliance on its relationship with
Morrison & Foerster. Morrison & Foerster has the ability to
give the Special Master more or less work and money as it
sees fit, possibly depending on its satisfaction with the
Special Master’s rulings in this case.
(Id.) Densify also argues that Reichman Jorgensen’s appearance in the
Corning/Leviton creates a further reason to disqualify (id. at 6); at argument,
Densify characterized this appearance as an “aggravating” factor in the
disqualification analysis.
Densify’s letter brief does not make separate arguments for §§455(a) &
(b)(4). At argument, Densify described the difference in the analysis between two
statutory provisions as nuanced and not “all that significant here.” (Tr. at 13:2-6).
VMware’s response challenges Densify’s contention that my partner or
Shaw Keller represents Morrison & Foerster or will be paid by Morrison &
Foerster. VMware’s response states that Leviton, not Morrison & Foerster,
engaged my partner and Shaw Keller, and that Leviton “will ultimately determine
the work undertaken by Ms. Keller and her compensation for such work.”
(VMware Letter at 3). In my September 2 email to the parties, I stated my
understanding that law firms are retained by litigants, not the law firms, and asked
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counsel for VMware to specifically advise Densify and me if that understanding
was incorrect for the Corning/Leviton litigation. Id. Consistent with VMware’s
letter, counsel for VMware has not so advised.
Controlling Legal Authorities
The parties agree that Third Circuit law controls the disqualification
question presented here. (Tr. at 3:23-4:4:2). The parties also agree that
disqualification is a matter of discretion under guiding Third Circuit case law. (Tr.
at 5:11-15).
For §455(a), the analysis focuses on whether an objective, reasonable person
“would harbor doubts about the [special master’s] impartiality.” In re Prudential
Ins. Co. Am. Sales Prac. Litig. Agent Actions, 148 F.3d 283, 343 (3d Cir. 1998)
(citations omitted); see also In re Kensington Int’l, Ltd., 368 F.3d 289, 303
(3d Cir. 2004) (stating that “the appearance of impropriety must be viewed from
the perspective of the objective, reasonable layperson”); Mass. Sch. of L. at
Andover, Inc. v. Am. Bar Ass’n, 107 F.3d 1026, 1042 (3d Cir. 1997) (“The standard
for recusal is whether an objective observer reasonably might question the judge’s
impartiality.”).
The objective, reasonable layperson has “knowledge of all the facts.” In re
Kensington, 368 F.3d at 301; see also Edelstein v. Wilentz, 812 F.2d 128, 131
(3d Cir. 1987) (stating the standard as a reasonable person “knowing all the

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circumstances”). In the argument I asked Densify how to draw the line between
the facts known to an objective, reasonable layperson and other types of
information. Densify replied that information concerning legal customs, practices,
and culture would generally fall into the second category. After reviewing the
analysis in In re Kensington, I agree.
In In re Kensington, the court of appeals conducted a two-part analysis, first
examining whether there was a conflict of interest that could create questions about
impartiality, and second, if a conflict existed, evaluating whether the “conflict
might be perceived by the reasonable person as having tainted” the judicial officer.
368 F.3d at 303. The two-part analytical framework set forth in In re Kensington
appears to use the word ‘conflict’ more broadly than the manner used in the rules
of professional responsibility. See, e.g., In re Kensington, 368 F.3d at 303-06
(looking for a conflict of interest recognizable to an objective, reasonable person
knowing all the facts). At argument, Densify agreed that the analytical structure
outlined by In re Kensington applies to this motion. (Tr. at 11:4-11).
Decision
VMware’s response to the motion focuses first on the facts that drive the
attorney conflicts principles set forth in the rules of professional responsibility.
VMware points out that there is no conflict between my serving as Special Master
in a matter between Densify and VMware, and others in my law firm participating

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in a litigation between different, unrelated parties (here Corning and Leviton). The
entities retaining the lawyers are the litigants. The entities paying the lawyers are
the litigants. All professional responsibilities flow to the litigants, not to other
counsel representing the same litigants. An objective, reasonable person knowing
all the facts would not view these facts as creating a conflict.
The first specific point raised by Densify is that Shaw Keller “will be
making money from Morrison & Foerster.” An objective, reasonable layperson
knowing all the facts would not understand this to be accurate. On the basis of an
email between counsel, Densify asserts that Morrison & Foerster “retained” Shaw
Keller in the Leviton action. The facts and circumstances known to an objective,
reasonable person, however, are that Leviton, not Morrison & Foerster, has
engaged and is responsible for paying any fees incurred by Shaw Keller on
Leviton’s behalf.
Densify also contends that “Morrison & Foerster has the ability to give the
Special Master more or less work and money as it sees fit, possibly depending on
its satisfaction with the Special Master’s rulings in this case.” I am not, however,
convinced that an objective, reasonable person knowing all the facts and
circumstances would understand this statement to be accurate. The record here
establishes that no Morrison & Foerster attorney in this action is involved in (or
expects to be involved in) the Leviton litigation or is able to assign work in the

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Leviton litigation to any specific lawyer or law firm. Likewise, the record
establishes no Morrison & Foerster attorney in the Leviton action is involved in (or
expects to be involved in) this litigation. I asked VMware if its counsel would
agree to ensure this continues in the future, and counsel agreed to do so if I request
it.
A screen of this nature, which I do ask Morrison & Foerster to implement,
will maintain the status quo between the two litigations and block any attorney in
this proceeding from influencing any work assigned in the Leviton matter and
prevent the assignment of work based on rulings in this case. At least one district
judge from this Circuit has found an ethical wall sufficient to eliminate any
question of partiality under §455(a). Sightsound Techs., LLC v. Apple, Inc., No.
11-1292 (W.D. Pa. Sept. 7, 2012). Significantly, Sightsound involved a special
master’s law firm that represented, in an unrelated matter, an affiliate of one of the
litigants before the special master. Sightsound, at 2. Sightsound found no grounds
for disqualification under §455(a) in light of the ethical wall. Sightsound, at 2-3.
The facts here are much more attenuated, as no one contends the parties in
this litigation and the Corning/Leviton litigation are affiliated or related. No
attorney in this litigation has or will have the ability to direct work to Shaw Keller
in the Corning/Leviton litigation, and no individual at Morrison & Foerster is
conflicted—as that word is used in In re Kensington—in the assignment of work.

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As a result, I do not believe an objective, reasonable person would view the facts
here to create the kind of conflict that causes concern under §455.
In connection with this question, I also asked the parties to comment on the
following hypothetical in their submissions:
whether the objection exists if a special master’s law firm
were to serve as local counsel for Party A in an unrelated
matter (e.g., between litigants other than those in the matter
assigned to the special master) in which one or more of the
non-Delaware firms appearing in the special master matter
also appears for Party A (or Party A’s opponent) in the
unrelated matter.
Densify responded in part as follows:
Who retains the Special Master’s law firm, and who directs
work to the Special Master’s law firm, are significant facts.
If “the non-Delaware firms appearing in the special master
matter” in the hypothetical also directly retain and pay the
special master’s firm in another new matter during the
pendency of the special master matter, this solicitation of
business with concomitant impacts on the revenues of the
special master as an equity partner may well raise concerns
with impartiality that require recusal under § 455.
(Densify Letter at 5-6).
On each of these points, the facts point an objective, reasonable person away
from finding a conflict of interest or a question of partiality. Different Morrison &
Foerster lawyers work on the Corning/Leviton litigation than the Morrison &
Foerster lawyers working on this litigation. To the extent Morrison & Foerster
lawyers direct work to specific attorneys (as opposed to the client directing work to

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specific attorneys) in the Corning/Leviton litigation, those are not (and will not be)
the Morrison & Foerster lawyers that work on this litigation. There is no evidence
that Morrison & Foerster, as opposed to Leviton, is responsible for or will pay fees
to Shaw Keller in the Corning/Leviton litigation.
Last, Densify did not disclose any connections between its counsel and
Shaw Keller, as described above, even though one of its law firms served as cocounsel with Shaw Keller in four litigations at the time of the special master
assignment. I asked Densify how I should interpret this non-disclosure and its
significance relative to this dispute in light of the parties’ agreement to identify
“any connections the parties and/or their counsel may have with the Special Master
and/or Shaw Keller.” (emphasis added). Densify responded that it was not
Densify’s responsibility, and instead the special master’s, to make the disclosure.
But the decision Densify identified as closest to this dispute, Jenkins v. Sterlacci,
however, assigned this responsibility to the litigants in the first instance. Jenkins v.
Sterlacci, 849 F.2d 627, 633 (D.C. Cir. 1988).
Regardless of responsibility, Densify voluntarily agreed to identify any
connections that might give rise to grounds for disqualification. An objective,
reasonable person knowing all the facts and circumstances likely would view it as
significant that Densify did not identify these connections despite agreeing to
identify “any connections and relationships” that might constitute possible grounds

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for disqualification. The precise problems raised by Densify here could arise
equally in any of these matters in which Shaw Keller and counsel for Densify
represent the same client. As a result, Densify’s actions suggest to an objective,
reasonable person that co-counsel relationships in litigation between unrelated
parties are not conflicts or possible grounds for disqualification, and do not suggest
a concern about impartiality. See D.I. 526 (Final Jury Instruction 4.1 on
circumstantial evidence).10
Densify next contends that a conflict and appearance of impropriety arises
because Shaw Keller’s participation in the Corning/Leviton matter will be
“adverse” to Densify’s counsel, Reichman Jorgensen. (Densify Letter at 6).
Densify’s letter suggests this, alone, is not sufficient to create a disqualification
issue under §455,11 and at argument Densify characterized this as an aggravating
factor supporting disqualification.

10

I asked a similar question more specifically about Densify’s non-disclosure of
matters concerning Kirkland & Ellis. Densify responded that Kirkland &
Ellis’s role in this matter is as appellate counsel and is “more minor.” It is not
at all clear that an objective, reasonable person reviewing the court docket and
knowing all the facts of record would understand that the role of Kirkland &
Ellis in this litigation is or is not minor, or that the objective, reasonable person
would gauge a potential conflict of interest to be predicated on the perceived
significance or insignificance of a law firm’s role before a trial court.

11

Id. (“However, whether this rises to the level of recusal may depend on other

issues, including . . . whether the same attorneys from the adverse firm are
appearing in both the special master matter and the unrelated matter . . .”).
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Densify’s letter submission did not explain why these facts are significant or
what an objective, reasonable person would understand about this issue. At
argument, Densify said that this adversity may cause counsel to not take positions
on behalf of Corning because doing so might impact Densify. Whatever the
likelihood of this occurring, these are not concerns that cast doubt on my
impartiality in this litigation. As a result, I do not believe that an objective,
reasonable person knowing all the facts and circumstances would view counsel’s
participation in the Corning/Leviton litigation and this matter as a conflict or as
raising a question of partiality.
This understanding is consistent with both parties’ conduct while making
their mutual disclosures about any connections or relationships that might have a
bearing on disqualification and with what an objective, reasonable person would
conclude from this conduct. Neither party made any disclosures about this
disqualification aggravating factor, even though numerous instances of the same
fact pattern existed at the time of my appointment and presented the same issue as
Reichman Jorgensen’s representation of Corning now. Densify has not argued or
articulated any difference between these matters and the facts here. Even after
Densify filed its motion, counsel for Densify appeared for a client adverse to my
client, as noted in the factual background above. These actions by both parties
again suggest that an objective, reasonable person knowing all the facts would not

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view this “plus factor” as creating a conflict or impacting a special master’s
impartiality.
Densify’s closest case is Jenkins v. Sterlacci. In Jenkins, a special master
was adjudicating a matter involving Lawyer A from law firm L. The special
master then filed an unrelated administrative law matter. Lawyer B from the same
law firm (law firm L) defended the administrative law matter. 849 F.2d at 629-30.
After the administrative agency issued a decision in favor of Lawyer B’s client,
Lawyer A learned of the special master’s participation in the administrative matter
against his colleague’s client. Id. at 632. Lawyer A’s client then objected to the
special master, relying on §455(a). Id. at 630.
The court charged Lawyer A with constructive knowledge of Lawyer B’s
matter and found that Lawyer A should have disclosed the situation to the special
master. Id. at 633. The court also stated that the special master should have
identified the situation to the parties. Id. at 634. Because Lawyer A had
constructive knowledge, however, the court found that the objection was waived.
Id.
Jenkins v. Sterlacci differs from Third Circuit law and from this matter in
several, significant respects. Most notably, the court in Jenkins v. Sterlacci did not
apply the objective, reasonable layperson knowing all the facts standard. The
decision does not apply the two-part analytical structure articulated by the court of

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appeals in In re Kensington. The decision assumes but does not analyze whether
the Jenkins facts created a conflict of interest or grounds for questioning the special
master’s impartiality. Id. at 633 (stating that the court “may fairly assume” such a
problem existed, without further analysis or discussion). Nor did the court need to
do more than make this assumption, as its decision turned on waiver principles. Id.
at 634. Last, the special master appeared personally as sole counsel in the
administrative proceeding. Id. at 629-30. Keeping in mind the In re Kensington’s
analytical structure and the objective, reasonable layperson standard, Jenkins does
not persuade me that Reichman Jorgensen’s participation in the Corning/Leviton
litigation should change the analysis under Third Circuit law.
*

*

*

Two additional issues warrant discussion. First, at the argument Densify
contended that Civil Action Nos. 17-1646-LPS and 17-1647-LPS were grounds for
disqualification. These two matters, as noted above, involve Morrison & Foerster
lawyers who also represent VMware in this litigation. I asked Densify to identify
where Densify raised this point in its letter submission. Densify pointed to the first
paragraph, but I do not see this contention in that paragraph or elsewhere in its
submission. Densify has, therefore, waived this issue as a basis for
disqualification. Cf. EIS, Inc. v. WOW Tech Int’l GmbH, C.A. No. 19-1227-LPS,
2020 U.S. Dist. LEXIS 223791, at *22 (D. Del. Nov. 30, 2020) (new arguments

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presented for the first time in reply untimely and deemed waived (citing D. Del.
LR 7.1.3(c)(2)). And even if Densify had raised this point in its letter submission,
Densify previously waived any conflict based on those matters. (Densify Letter,
Exh. 3 at 2).
Second, Densify suggested at argument that the best solution is to recuse
because there are other special masters on the panel who are not involved in the
Corning/Leviton litigation. An order is entered, however, directing me to resolve
the disqualification issue in the first instance. More important, the parties cite—
and my own research has found—few decisions on special master disqualification
discussing the issues presented here. Whether the district court ultimately finds the
analysis and decision embodied in this memorandum to be correct or incorrect, the
issues are important and will likely recur with most, if not all, of the special master
panel either at the time of assignment or over the course of an assignment.
Indeed, most law firms, to my understanding, do not track co-counsel
relationships in any formal manner. If a special master or litigating counsel is
associated with a large, national firm with multiple offices, it may not be possible
to ascertain whether any particular co-counsel relationship exists at the time of an
assignment or arises during the course of an assignment. Even in a small law firm
such as the one in which I practice, determining whether any particular co-counsel
relationship exists is no mean task. To identify the litigations described in the fact

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section above, I relied on multiple, overlapping sources: searches on third-party
software Docket Navigator (which is limited to patent litigation); searches on
PACER (to capture non-patent litigations); the Shaw Keller document management
system (searching for law firm names); and personal recollection. None of these
tools is as robust as a properly implemented conflicts of interest database.
For the reasons set forth in this memorandum, I will enter an order denying
the motion to disqualify.

Dated: October 14, 2021

___________________________________
Special Master

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