A Blog About Intellectual Property Litigation and the District of Delaware


Entries for tag: Ethics

What Do You Do If You Find Out Your Expert Has an Ethical Conflict, After You Already Relied on His Declaration?

Andrew E. Russell, Jan. 12, 2026
Expert Discovery Letter

As my daughter is fond of saying after some minor catastrophe,
As my daughter is fond of saying after some minor catastrophe, "whoopsy doodles!" NOAA, Unsplash

Well, this is a new one. Apparently, in BioDelivery Sciences International, Inc. v. Alvogen Pb Research & Development LLC, C.A. No. 18-1395-CFC-CJB (D. Del.), the defendant found out just a little bit too late that their expert had an ethical conflict because he had previously represented the plaintiff.

It's hard to tell exactly what the circumstances were here, because it looks like the relevant motion and all related briefing is fully sealed, with no redacted versions available.

But from what I can see, the plaintiff received a judgment in its favor on some of its claims back in 2022. (D.I. 308). …

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Reminder: The Ethics Rules Prohibit Attorneys From Asking a Third Party to Withhold Information

Andrew E. Russell, June 6, 2025
Third Party Discovery Ethics

Danger Keep Out
Edwin Hooper, Unsplash

Earlier this week, visiting Judge McCalla issued an order denying a motion to preclude a third-party factual declaration. Along the way, the Court addressed an ethics rule that should probably come up more often than it does.

As set forth by the Court, ABA Model Rule 3.4(f) precludes attorneys from requesting that third parties withhold relevant information from another party:

Model Rule 3.4(f) states a “lawyer shall not . . . request a person other than a client to refrain from voluntarily giving relevant information to another party.”

Arctic Innovations, LLC v. Edwards Lifesciences Corp., C.A. No. 23-158-JPM, at 4 (D. Del. June 4, 2025).

This could be a land mine for the …

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The Hamburglar Did Nothing Wrong

Nathan R. Hoeschen, July 6, 2023
Ethics

You don't get to pick your jobs in the P.I. biz. A good gumshoe takes what walks in the door, and the only questions he asks are "how much?" and "permanently?" The only answer he'll take is a raised eyebrow and and that money gesture when you rub your thumb against two fingers.

Hamburglar was of the old school. 40 years ago he had a reputation that could make a clown go back into his little car with all his friends and drive off without so much as a honk. When the doc said his arteries were starting to look looked like string cheese, he put that all behind him - hung up his shingle and started trying to solve …

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Reminder: "The ABA’s Model Rules of Professional Conduct, Not the Delaware Rules of Professional Conduct, Set the Standards for Professional Conduct" in the District of Delaware

Andrew E. Russell, Oct. 26, 2022
MRPC DRPC

Caution Tape
Hiroshi Kimura, Unsplash

If you're briefing on an ethical issue in the District of Delaware, consider the local rules before relying exclusively on the Delaware Lawyers’ Rules of Professional Conduct (DLRPC):

(d) Standards for Professional Conduct. Subject to such modifications as may be required or permitted by federal statute, court rule, or decision, all attorneys admitted or authorized to practice before this Court, including attorneys admitted on motion or otherwise, shall be governed by the Model Rules of Professional Conduct of the American Bar Association (“Model Rules”), as amended from time to time.

D. Del. Local Rule 83.6(d). According to the Judge Jordan, back in 2004:

[T]he ABA’s Model Rules of Professional Conduct, not the Delaware Rules of …
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