Opinion
Civil No. 98-2055 (DWF/SRN)
July 25, 2001
Timothy Lindquist, Esq., Philip Caspers, Esq., and Alan Carlson, Esq., Merchant Gould, Minneapolis, MN, for Plaintiff.
Dean Bostock, Esq., and Paul Hayes, Esq., Weingarten, Schurgin, Gagnebin Hughes, Boston, MA, for Defendant.
MEMORANDUM
This litigation involves claims that Defendants infringed upon several patents held by Plaintiff. On May 1, 2001, long after this Court had issued its Markman decision, Defendants began deposing Plaintiff's chief technical expert, Dr. Rhyne. During the course of the deposition, Defendants began inquiring about issues which Plaintiff felt to be irrelevant to the lawsuit and evidence that Defendants intended to assert a previously unidentified defense. Plaintiff suspended the deposition and sought a protective order from Magistrate Judge Susan Richard Nelson; the parties were heard that same day in Magistrate Judge Nelson's courtroom.
During the course of the hearing, Plaintiff argued that the asserted defense had never before been revealed in answers to interrogatories or during the course of the Markman hearing. Defendants contended that the defense was not new at all. Commenting upon the obvious conflict, Magistrate Judge Nelson noted that the defense struck her as new, as something she had not yet heard about. She then proceeded to note the various ways in which she was familiar with the case: a lengthy settlement conference and a review of the pleadings.
Ultimately, Magistrate Judge Nelson indicated that the question of whether Defendants could assert this allegedly new defense was one better resolved through a motion in limine brought before the District Court Judge. She declined to grant Plaintiff's motion for a protective order. Subsequently, Plaintiff filed a motion in limine on the propriety of the Defendants' defense, the motion has been referred to the undersigned District Court Judge, and that matter is still pending. In Plaintiff's motion papers, Plaintiff notes that Defendants proffered defense has not been raised in an answer to interrogatory, in the context of the Markman hearing, or even in the course of the settlement conference.
Defendants have taken offense at Magistrate Judge Nelson's reference to the settlement conference during the May 1, 2001, hearing and the Plaintiff's reference to the settlement conference in its motion in limine. In arguing for recusal, Defendants rely on Local Rule 16.5(c)(2) which states:
Defendants also make a wholly unsubstantiated accusation that Magistrate Judge Nelson disclosed particulars of the settlement conference to the District Court Judge. Frankly, that accusation is offensive and entirely untrue. Magistrate Judge Nelson has never made any comment about the settlement conference to the District Court Judge, in this or any other case. Defendants further suggest that, even if Magistrate Judge Nelson did not make such disclosures, both she and the District Court Judge should be recused to avoid the appearance of partiality. To allow a party to litigation to raise the specter of partiality by leveling an entirely unfounded accusation at a judge would deal a serious blow to the integrity of the court system. Magistrate Judge Nelson did nothing improper, and the Court will not recuse her or itself from this case simply because one of the parties has made an unsupported accusation that is not true.
No confidential dispute resolution communication shall be disclosed outside the alternative dispute resolution process by any party, party representative, insurance adjuster, lawyer, or neutral without the consent of the party making the confidential dispute resolution communication.
Defendants fail to note that Local Rule 16.5(c)(1) defines "confidential dispute resolution communication" as "any communication made to a neutral during any Alternative Dispute Resolution process which is expressly identified to the neutral as being confidential information. . . ." The Court does not need to reach the question of whether the Rule requires a specific, verbal statement that a given communication is confidential; it is sufficient to note that the Rule clearly does not contemplate that every last utterance, no matter how minor, which arises in the context of the dispute resolution process, is confidential.
It is beyond the ken of this Court to understand how Defendants' failure to raise a particular legal issue can constitute a confidential dispute resolution communication. First, the communication-or lack thereof-being referenced was merely an articulation of the legal position taken by the Defendants throughout the case; there was nothing confidential about it. To hold that this communication was confidential would be like finding that a statement of the date on which the complaint was filed or a reference to a particular docket number was "confidential" simply because it was verbalized during a settlement conference.
Defendants argue that allowing the disclosure of such communications would have a chilling effect on the settlement process. Such an argument regarding this particular piece of information is quite uncompelling. Common sense dictates that the type of information which a reasonable person would wish kept confidential include settlement figures, admissions about the relative strength or weakness of claims, proposals to drop certain demands, etc. Defendants' failure to mention a particular legal theory during the settlement conference does not carry the same sort of import; knowing that fact does not, and cannot, color anyone's perception of the relative worth of Defendants' overall legal position.
Ultimately, the District Court Judge would likely never have noticed the stray remark in Plaintiff's motion in limine referencing the settlement conference. What happened, or did not happen, during that settlement conference is not dispositive of anything. The point of the reference is that Defendants have never before raised this legal theory, in any context, including the settlement conference. Defendants allege that they have raised the issue before, albeit not during the settlement conference. Whether the argument was raised at the settlement conference or not is neither here nor there; the Court's concern will be whether the argument has been raised in the appropriate forum-in the context of the Markman hearing, in answers to interrogatories, in pleadings, etc.
In short, Defendants have taken a rather innocuous statement by the Magistrate Judge and an off-hand reference by the Plaintiff and have blown them all out of proportion. Defendants have taken the opportunity to allege, without any factual support, gross misconduct by the Magistrate Judge. Even in light of that allegation, however, neither incident of which the Defendants complain-taken alone or in combination-creates even the appearance of partiality on the part of the Magistrate Judge of the District Court Judge. There is simply no basis for recusal at this juncture.
D.W.F.
ORDER AND MEMORANDUM
The above-entitled matter is before the undersigned District Court Judge on Defendants' motion for an order recusing Judge Donovan W. Frank and Magistrate Judge Susan Richard Nelson. Based upon the Court's review of the record, the Court having reviewed the arguments and submissions of the parties, and the Court being otherwise duly advised in the premises, the Court finds that there is no basis for granting the order of recusal.Accordingly, IT IS HEREBY ORDERED:
1. Defendants' Motion for an Order of Recusal (Doc. No. 234) is DENIED.