Hogan & Hartson sought a protective order last week to stay discovery in a malpractice suit filed against the firm in D.C. Superior Court.
In February, Prestige Brands Inc. sued the Washington law firm claiming Hogan lawyers used attorney-client communication with Prestige to help a competitor bring a product to the market quicker than it could have without Hogan’s representation. Prestige and the competitor, DenTek Oral Care Inc., are both the makers of an over-the-counter mouth guard designed to prevent people from grinding their teeth while they sleep.
In March, Hogan filed a motion to dismiss the case or stay the case in Washington until related litigation was decided in New York. (Prestige’s wholly owned subsidiary Medtech Products Inc. is also currently suing ex-employees, retailers, and other oral care manufacturers in the U.S. District Court for the Southern District of New York for allegedly stealing trade secrets.)
The motion for the protective order, which was filed in D.C. Superior Court by Zuckerman Spaeder lawyers representing Hogan on April 1, is asking the court to stay discovery until the court rules on Hogan’s earlier motion to dismiss the suit or to stay the matter until the New York litigation is resolved.
The memorandum in support of the motion states: “If the discovery were to proceed while the [m]otion to [d]ismiss is pending, the parties would incur substantial attorneys’ fees and devote valuable employee time to such potentially unnecessary discovery."
On Feb. 17, Prestige's outside counsel, Alston & Bird partner Marianne Casserly, served Hogan with 37 document requests. Among them include a request for documents pertaining to all of Hogan’s policies concerning conflicts of interest and Hogan & Hartson billing invoices or statements for its representation of DenTek. Hogan’s brief for the protective order says that such requests include privileged attorney-client communication with DenTek, and it argues that requested documents related to conflicts analysis could affect “hundreds, if not thousands” of clients the firm has represented in FDA matters. Casserly did not immediately return calls seeking comment.
Hogan argues that Prestige is seeking the same discovery information in the New York litigation and that if Hogan complies with Prestige’s request for discovery in Washington, it would cause “duplicative litigation” and possibly conflicting rulings regarding the use of privileged communication in discovery.
Mark Foster leads the team of Zuckerman Spaeder lawyers.