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Sightsound Technologies, LLC v. Apple

September 7, 2012

SIGHTSOUND TECHNOLOGIES, LLC., PLAINTIFF,
v.
APPLE, INC. DEFENDANT.



The opinion of the court was delivered by: Donetta W. Ambrose Senior Judge, U.S. District Court

MEMORANDUM ORDER

Before the Court are the parties' submissions regarding the potential disqualification of David Cohen, Special Master for e-discovery in this matter. On August 15, 2012, Mr. Cohen advised the parties that his law firm, Reed Smith, represents General Electric, which Plaintiff had identified on its disclosure statement filed in October, 2011, as a corporate affiliate. Mr. Cohen had never seen the disclosure statement, and the affiliation had not been revealed when the law firm ran its original conflicts check. Presently, Defendant objects to Mr. Cohen's continuation as Special Master, and Plaintiff contends that Defendant has waived that objection.

Defendant asserts that this Court, and Mr. Cohen, failed to abide by the dictates of Fed. R. Civ P. 53(b)(3) and 28 U.S.C. 455. Rule 53 provides, in pertinent part, as follows: "A master must not have a relationship to the parties.that would require disqualification of a judge under

28 U.S.C. § 455, unless the parties, with the court's approval, consent to the appointment after the master discloses any potential grounds for disqualification." Section 455, in turn, sets forth several circumstances that require a judge to disqualify himself:

(a) Any justice, judge, or magistrate [magistrate judge] of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

(b) He shall also disqualify himself in the following circumstances:

(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;

(2) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it;

(3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy;

(4) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;

(5) He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:

(i) Is a party to the proceeding, or an officer, director, or trustee of a party;

(ii) Is acting as a lawyer in the proceeding;

(iii) Is known by the judge to have an interest that could be substantially affected by the ...


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