Free Statement - District Court of Delaware - Delaware

Case 1 :07-cv-00729-SLR Document 53 Filed 06/25/2008 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
ARTHROCARE CORPORATION,
Plaintiff}
C.A. No. 07-729-SLR
v.
GYRUS MEDICAL, INC., GYRUS ENT,
L.L.C., and GYRUS ACMI, INC.,
Defendants.
ARTHROCARE CORPORATION’S RESPONSE TO DEFENDANTS’
"NOTIFICATION" REGARDING THE COURT’S JUNE 11, 2008 ORDER AND
REQUEST TO CANCEL THE JULY 17, 2008 HEARING
ArthroCare Corporation ("ArthroCare") submits this response to the
"Notification" (D.I. 52) of defendants Gyms Medical, Inc., Gyms Ent, L.L.C., and Gyms ACMI,
Inc. (collectively, "Defendants”) regarding the Court’s June ll, 2008 Order on their motion to
disqualify Weil, Gotshal & Manges LLP ("Wei1 Gotshal"). Defendants concede that they have
no evidence that any information obtained by Weil Gotshal in the course of the Olympus/Gyrus
transaction has been shared with any member of the team representing Arthr0Care in this case or
otherwise disseminated to Defendants’ prejudice. Defendants are unable to point to any
"specific confidential infonnation relating to the instant litigation" shared with Weil Gotshal, and
hold out no hope of being able to do so at an evidentiary hearing.
Under these circumstances, an evidentiary hearing would serve no purpose except
to confirm what is already clear from the papers — Defendants disclosed no confidential
information relating to this lawsuit to Weil Gotshal in connection with the Olympus/Gyrus deal
and Weil Gotshal did not disseminate any information that it did receive in connection with that
deal to any member of the ArthroCare litigation team.

Case 1:07-cv-00729-SLR Document 53 Filed 06/25/2008 Page 2 ot 4
Further, contrary to Defendants’ argument, the evidentiary burden set forth in the
Court’s June 11 Order is correct. The cases Defendants rely upon were decided not under Model
Rule 1.7(a)(2), which Defendants assert as a basis for disqualification here, but rather under
Model Rule 1.9, which governs representation of former clients. Defendants are not and never
were "clients" of Weil Gotshal. D.1. 24 at pp. 12-17. ln any event, the cases Defendants rely
upon do not stand for the proposition that disqualification is appropriate whenever a law finn
"might" have obtained confidential information in the course of a former representation. See
Conley v. C/mffinch, 431 F. Supp. 2d 494, 498 (D. Del. 2006) ("[T]he court should not ‘allow its
imagination to run free with a view to hypothesizing conceivable but unlikely situations in which
confidential information ‘might’ have been disclosed which would be relevant to the present
suit."’) (quoting Satellite Fin. Planning Corp. v. F inst Net'l Bank of Wlmington, 652 F. Supp.
1281, 1284 (D. Del. 1987))). The standard Defendants urge here goes even beyond "conceivable
but unlikely" — they ask the Court to disqualify Weil Gotshal based on an uncontested record that
Weil Gotshal received no specific confidential information relating to this lawsuit and that no
information at all was disseminated in any way that prejudiced Defendants. Under these
circumstances, the Court has the discretion to deny a motion to disqualify under any standard.
Given that Defendants acknowledge that they have no evidence to present in
support of their motion, ArthroCare respectfully requests that the Court do what Defendants have
requested: "cancel the hearing and enter an order denying the Motion to Disqualify."l
1 If the Court nevertheless believes an evidentiary hearing is necessary, we wish to call a
scheduling issue to the Court’s attention. The primary Weil Gotshal lawyer on the
Olympus Gyrus transaction, Mr. Hamilton, who is based in London, will be on a long-
planned vacation in Europe, making it very difficult for him to travel to Wilmington to
testify on July 17. If the Court does not cancel the hearing, we would like to explore the
possibility of altemative dates.
2

Case 1:07-cv-00729-SLR Document 53 Filed 06/25/2003 Page 3 ot 4
Momus, NICHOLS, Aasnr & TUNNELL LLP
QJ t t
1 5 5* Y -
I/J"}, {I § lA_;`_; ·}\.-4,,.
Jack B. Blumenfeld (#1014)
Karen Jacobs Louden (#2881)
James W. Parrett, Jr. (#4292)
_ 1201 North Market Street
P.O. Box 1347
Wilmington, DE 19899
(302) 658-9200
jb1urneni`[email protected]
Of Counsel: [email protected]
[email protected]
Adam P. Strochak
WEIL, GOTSHAL & MANGBS LLP Atromeysfor Plaintgyf
1300 Eye Street, NW, Suite 900 ArthroCare Corporation
Washington, DC 20005
(202) 682-7000
Jared B. Bobrow
WHL, GorsHAL & MANG1-ss LLP
201 Redwood Shores Parkway
Redwood Shores, CA 94065
(650) 802-3000
Kevin Kudlac
Cabrach J. Connor
WEIL, GOTSHAL & MANGPS LLP
8911 Capital of Texas Highway
Suite 1350
Austin, TX 78759
(512) 349-1930
Dated: Jtme 25, 2008
2383844
3

Case 1:07-cv-00729-SLR Document 53 Filed 06/25/2008 Page 4 ot 4
CERTIFICATE OF SERVICE
I hereby certify that 011 June 25, 2008, I electronically filed the foregoing with the
Clerk of the Court using CM/ECF, which will send notification of such tiling to:
Richard L. Horwitz
David E. Moore
Porren ANr>ERsoN & Coruzoon LLP
I further certify that I caused to be served copies ofthe foregoing document on
June 25, 2008 upon the following in the manner indicated:
Richard L. Horwitz VIA ELECTRONIC MAIL
David E. Moore and HAND DELIVERY
PorrER ANDPRsoN & Comzoon LLP
1313 North Market Street
Hercules Plaza — 6th Floor
Wilmington, DE 19801
Darle M. Short VIA ELECTRONIC MAIL
Thomas J. Pardini
Daniel A. Tarmer, III
Daniel M. Schneider
Oliff & Berridge, PLC
277 S. Washington Street, Suite 500
Alexandria, VA 22314
Jack B. Blumenfeld (#1014)

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