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Man & Machine, Inc. v. Seal Shield, LLC

United States District Court, D. Maryland

September 28, 2016

MAN & MACHINE, INC., Plaintiff
v.
SEAL SHIELD, LLC, et al., Defendants

          MEMORANDUM OPINION

          PETER J. MESSITTE, UNITED STATES DISTRICT JUDGE

         Man & Machine, Inc. (MMI) has sued Seal Shield, LLC and Seal Shield Corp. (Seal Shield) seeking preliminary and permanent injunctive relief, disgorgement of profits, and other damages in connection with its allegations that Seal Shield disseminated false and/or misleading statements into interstate commerce regarding the performance of Seal Shield's keyboards and mice in violation of the Lanham Act and False Marking Act. Specifically, the Amended Complaint, ECF No. 33, alleges that Seal Shield falsely advertised that its products have antimicrobial properties based upon the incorporation of silver into its products; are dishwasher safe and waterproof; and contain technology patented by Seal Shield or for which patent is pending. During the course of discovery in the case, on July 17, 2015, Seal Shield filed a complaint against MMI in the Middle District of Florida alleging violations of the Lanham Act and the Florida Deceptive and Unfair Trade Practices Act. The Florida suit was transferred to this Court on December 15, 2015, and the Court consolidated the cases on June 29, 2016. On July 22, 2016, MMI filed a Motion to Disqualify Counsel Andrew McCarthy, ECF No. 173, which Seal Shield opposes.

         For the following reasons, MMI's Motion to Disqualify Counsel Andrew McCarthy is DENIED.

         I. FACTS

         J. Andrew McCarthy, Jr., Esquire is Seal Shield's in-house counsel and Vice President of Intellectual Property. He, along with co-counsel Gregory P. Hengber, Esquire and local counsel, Diana M. Schobel, Esquire, represent Seal Shield in the instant litigation and have done so since the date Seal Shield answered, i.e. August 5, 2015.

         MMI's Motion is based on the following facts:

         On March 6, 2014, former Seal Shield employee and current MMI employee, Harry Furey, sent an email to Clifton Broumand, MMI's CEO (the March 6th email), which referenced - and had as an attachment - an email sent from McCarthy to Seal Shield employees on November 8th, 2010 (the November 8th email). The November 8th email was a forwarded copy of an email from McCarthy to a potential Seal Shield client which posed questions regarding the total weight of a product and the relative amount of Silver Seal and silicone in that product. Broumand responded to the March 6th email asking Furey to mail him a physical copy of the November 8th email. Years later, during the May 26, 2016 deposition of Broumand, Seal Shield's co-counsel Greg Hengber marked the March 6th email as an exhibit.

         MMI asserts that the November 8th email reveals that McCarthy is, or was, responsible for deciding how much Silver Seal is used in Seal Shield's products, and thus possesses critical information regarding the amount of Silver Seal required to make the products antimicrobial. According to MMI, this knowledge, along with McCarthy's familiarity with Seal Shield's patents make McCarthy a necessary witness in this case, given the central role that those issues play in MMI's claims. Further, MMI alleges that McCarthy is a competitive decisionmaker at Seal Shield. Therefore, MMI argues that McCarthy should be disqualified from the case for because his presence would violate Rule 3.7 of the Maryland Lawyers' Rules of Professional Conduct.

         Seal Shield disputes this, arguing not only that MMI's motion is untimely inasmuch as it had knowledge of the November 8 email years ago; the assumption that McCarthy is a necessary witness is baseless.

         II. STANDARD OF LAW

         Rule 3.7 of the Maryland Lawyers' Rules of Professional Conduct (MLRPC) provides, in pertinent part, that

[a] lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless:
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal services ...

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