A judge in the Eastern District of Texas has been advised that sanctions against two Irell & Manella attorneys could be merited for conduct during a patent case they were litigating against Samsung Electronics.
Samsung had asked the court to sanction opposing counsel in a sealed motion filed in October, alleging attorneys representing CogniPower had deposed a Samsung representative using a doctored document. David Folsom of Texarkana was appointed by the court to serve as special master and investigate the issue in October.
Folsom held a hearing in December and filed his report and recommendation to U.S. District Judge Rodney Gilstrap on Monday, as first reported by Bloomberg Law.
“This bad faith conduct cannot be ignored,” Folsom wrote in the 12-page order.
Benjamin Manzin-Monnin, a sixth-year associate in the firm’s Los Angeles office, had presented Samsung’s corporate representative, Roland Saint-Pierre, with a document during a deposition that had “been altered by CogniPower’s counsel prior to the deposition,” according to the report.
“There is no reason why Mr. Manzin-Monnin should have thought that eliciting testimony based on an altered document was appropriate,” Folsom told the court.
Folsom wrote that Manzin-Monnin had “not been forthcoming” with him when, during the hearing, he asked the associate if he had spoken to anyone else about whether he should question the witness based on the altered document.
“During the December hearing, CogniPower’s counsel, Mr. Benjamin Manzin-Monnin, represented to the Special Master that he ‘did not ask anyone else’ at his firm about whether he should question the witness based on the altered document,” the report and recommendation reads.
But after Manzin-Monnin was deposed and Irell & Manella handed over requested communications pursuant to an order, a different story emerged. Manzin-Monnin had emailed Irell partner Jason Sheasby to inform him of the plan to present Saint-Pierre with the altered document during his deposition.
“Despite his awareness of this correspondence at the time of the December hearing, Mr. Sheasby did not clarify at the December hearing that Mr. Manzin-Monnin had sent him correspondence about this matter prior to the Saint-Pierre deposition,” Folsom wrote. “Nor did Mr. Manzin-Monnin and Mr. Sheasby advise the Special Master during the December hearing or Mr. Manzin-Monnin’s deposition that one of the Irell & Manella employees had warned Mr. Manzin-Monnin that he needed to get a senior attorney’s confirmation that they were comfortable with ‘mocked up dates on evidence floating around.’”
Folsom recommended the following sanctions:
- 30 hours of legal ethics education for Sheasby and Manzin-Monnin
- A reimbursement from Irell & Manella to Samsung for costs the company incurred responding to both an earlier and since-abandoned request for sanctions from CogniPower, its own motion for sanctions and the special master’s discovery requests
- Docking CogniPower an hour of time at trial, including a deduction of 10 minutes from its opening statements, 10 minutes from its closing arguments and 40 minutes from its presentation of evidence
CogniPower had filed suit against Samsun in April 2023, according to court records, accusing the company of infringing five of its patents and seeking unspecified damages that it sought to have trebled by the court as well. The patents cover technology for CogniPower’s “industry-changing demand pulse regulation technology that dramatically improves the performance and efficiency of power converters,” according to the lawsuit.
CogniPower alleges in the suit that it had been in contact with Samsung since 2012 regarding its DPR technology and had offered the company a licensing agreement to use the technology on more than one occasion, but Samsung declined.
The case had been set for trial March 17 and had not been rescheduled as of Wednesday afternoon. Judge Gilstrap has set a hearing on the report and recommendation to take place March 27 at 1:30 p.m.
Sheasby responded to an email that had been sent to him and Manzin-Monnin Wednesday, declining to comment.
According to emails attached to the report and recommendation, Manzin-Monnin emailed Thomas Barr, a scientific fellow at Irell & Manella, to seek guidance on changing the date on certain documents he planned to use during the Saint-Pierre deposition that would help him show “that those dates on [the] face of [the] document can’t be relied on.”
The dates were on “detailed schematics” Samsung was using in support of its prior art arguments.
“Curious if you have thoughts on effective way to do this,” Manzin-Monnin wrote to Barr on Sept. 25.
“1. Opposing side relies on detailed schematics for prior art. 2. They only produced versions with some handwriting, that appear to be scans, with much later meta date (from during litigation, so presumably when they scanned the paper file) 3. Docs have a time stamp on them that they are relying on, which I assume they will say is the last time edited. 4. I want to establish that those dates on face of document can’t be relied on. 5. One thought: showing witness you can edit the document (e.g. in adobe) and date won’t update,” he wrote. “Any other ideas or thoughts appreciated!”
Barr and Manzin-Monnin exchange a few more emails before the associate tells Barr he is “surprisingly bad at editing” the image and asks for assistance.
“Always nice to use my forgery skills for good and not evil,” Barr replies. “… Also, you should get clear directions from somebody more senior than I am that they’re comfortable with mocked up dates on evidence floating around.”
“Yup, I put in email to Jason my plan,” Manzin-Monnin replied. “Thank you!”
In a declaration from Sheasby also attached to the report and recommendation, he told the court that Manzin-Monnin emailed him about 36 hours before the Saint-Pierre deposition with several ideas, including the doctored document idea.
“I inadvertently missed this email,” he told the court. “I did not read this email until after receiving the complaint letter from opposing counsel on Oct. 1, 2024 regarding Mr. Manzin-Monnin’s conduct at the deposition. At this point I began to investigate what had occurred and only then did I see the email.”
Sheasby wrote that the “bottom line is it was my responsibility to catch Mr. Manzin-Monnin’s last email in this chain,” and that it was also his responsibility to make sure what occurred here doesn’t happen again.
“Our firm’s Office of the General Counsel has taken steps to ensure that all members of the firm are aware that the questioning strategy Mr. Manzin-Monnin employed is not appropriate and that alteration of a document cannot ever occur, regardless of whether it is marked as an exhibit and regardless of whether it is subsequently disclosed as altered in the deposition,” he wrote.
In an opposition to the motion for sanctions filed Oct. 24, counsel for CogniPower told the court the “goal” of presenting Saint-Pierre with the doctored document was to show he “was simply attesting to the dates printed on documents without personal knowledge of whether the dates are accurate.”
“Mr. Manzin-Monnin acknowledges that it would have been clearer and more appropriate to either forego the line of questioning entirely or to explicitly mark the page as ‘demonstrative – modified,’” CogniPower argued. “He will not take the same approach again, and has confirmed that it was limited to this single page. However, he was forthright with the witness and all counsel about exactly what he was doing. Moreover, he never sought to submit the modified page as evidence. It was not marked at the deposition as an exhibit and he expressly stated that it was ‘not evidence.’”
CogniPower argued sanctions weren’t merited because it had already agreed to remedies proposed by Samsung, including that it wouldn’t use Saint-Pierre’s testimony relating to the modified document and would not present any modified documents to any other witnesses.
“CogniPower respectfully contends this agreed resolution fully addresses any possible harm to Samsung, which is an independent ground for denying Samsung’s motion,” CogniPower concluded.
CogniPower is represented by Andrew Choung, Angelo Christopher, Brian Kennedy, Hang Zheng, Jennifer Hayes, Karl Fink, Shawn Hansen, Shend-Wen Jui and Taylor Pfeifer of Nixon Peabody, Robert Bunt and Charles Ainsworth of Parker Bunt & Ainsworth, and Jonathan Lindsay and Stephen M. Payne of Irell & Manella.
Samsung is represented by David J.F. Gross, Brianna Silverstein, Chad Drown, Christopher Burrell, Diego Rosado, Evan Kline-Wedeen, Faith Maggard, Katlyn M. Moseley, Kelly J. Fermoyle, Lauren J. Barta, Lucas Tomsich, Timothy E. Grimsrud and Zachary Kachmer of Faegre Drinker Biddle & Reath and Melissa Smith, James Underwood, Harry Gillam and Andrew “Tom” Gorham of Gillam & Smith.
The case number is 2:23-cv-00160.