3rd-Party Nimitz Funding Records Need Not Be Exposed to Public: Judge

Nimitz Technologies need not worry that the records that Senior U.S. District Judge Colm Connolly for Delaware seeks for investigating third-party funding of Nimitz patent infringement lawsuits would publicly expose Nimitz’s financial secrets or violate attorney-client privilege, Connolly wrote the U.S. Appeals Court for the Federal Circuit Nov. 30, per an 81-page letter posted Monday (docket 23-103).

Contrary to concerns Nimitz expressed about the possible harms from the public disclosure of confidential information, Connolly’s order “does not require Nimitz to docket these records or otherwise make them public,” said the judge’s letter. “Nimitz is free to submit and to publicly file at the time of its production of the records in question an assertion that the records are covered by the attorney-client privilege and/or work product doctrine and a request that for that reason (and perhaps other reasons) the Court maintain the records under seal.” Connolly ordered Nimitz to produce the documents by Friday, but the appeals court stayed the order pending further action.

The U.S. Chamber of Commerce and several other amici oppose Nimitz’s mandamus petition to vacate Connelly’s order, asserting they believe that the secrecy on third-party litigation funding should be exposed (see 2212050041). The records Connolly seeks “are all manifestly relevant to addressing the concerns” he has about third-party funding of Nimitz’s lawsuits against Bloomberg, BuzzFeed, Cnet and Imagine Learning, said the judge.

Connolly worries whether lawyers for Nimitz may have violated the Rules of Professional Conduct when they were less than forthright with the court about the ownership of the single patent at issue in all four lawsuits, said the judge. The records he seeks will expose whether “real parties in interest” other than Nimitz “have been hidden” from the court and the defendants, he said. One of the more troubling developments in the case, said Connolly, was the disclosure by Mark Hall, Nimitz's self-described owner, that he paid no money to own the patent in the suit.

Connolly also wants to know whether those real parties in interest have “perpetrated a fraud on the court” by fraudulently transferring ownership of the patent to a “shell” company, Mavexar. He also wants to investigate whether any third party involved in the Nimitz litigation filed a “fictitious patent assignment” with the Patent and Trademark Office to “shield” themselves from the “potential liability they would otherwise face” in asserting the patent in litigation, he said.

Statements in the Nimitz mandamus petition implying that as a senior district judge Connolly lacks the authority to order the production of records should be dismissed, the judge suggested. “It cannot be seriously disputed that I had the inherent authority to order the production of these records and to invite the parties to submit names of potential amici to assist me in addressing the matters I have raised,” he said. The Supreme Court “has expressly held that a federal court's inherent powers include the powers I have exercised here,” he said.