Alston & Bird disqualified from case, represented opposing party

A federal judge in San Jose disqualified Alston & Bird LLP from representing a resume-building service in an intellectual property dispute as the firm had represented the opposing party in different litigation several years ago.

“Although the defendants may be correct that this case concerns a different copyright, the subject matter of the prior representations and this representation substantially overlap because they involve the same legal issues … and are based on the same [plaintiff] product,” U.S. District Judge Beth Labson Freeman wrote in her order Tuesday.

Last July, Rocket Resume retained Alston & Bird partner Chaka M. Patterson as its general counsel. During his deposition, Rocket Resume CEO and founder Stephen Zimmerman also identified Dana M. Zottola, a firm senior associate and his wife, as an “adviser” to Rocket Resume. Zottola had not made an appearance in the case brought against Rocket Resume by Bold Ltd., a rival resume creator.

As Bold, then known as LiveCareer Ltd., had retained Alston & Bird in 2013 for another intellectual property case, its attorneys at Latham & Watkins LLP reached out to the defendant last year to discuss a potential conflict of interest, per court filings. Bold filed its motion to disqualify Alston & Bird in November. The firm did not respond to a request for comment on the court’s ruling.

Citing a violation of the California Rules of Professional Conduct, Latham & Watkins partner Tara D. Elliott wrote in the motion that Alston & Bird was Bold’s go-to firm for advice on “its corporate structure, IP, litigation, and intercompany transactions, all of which are issues at the heart of the present litigation.” She added that “any ethical screening” Alston & Bird may have implemented to prevent misuse of Bold’s confidential information “was untimely and inadequate.”

Initially represented by Orrick Herrington & Sutcliffe LLP, and later by Dykema Gossett LLP, Rocket Resume is now represented by Gibson Dunn & Crutcher LLP. Bold Ltd. v. Rocket Resume Inc. et al., 5:22-cv-01045-BLF (N.D. Cal., filed Feb. 18, 2022).

In his opposition, Alston & Bird partner Charles W. Cox said Bold’s disqualification bid was without merit as the issues of the previous litigation had no bearing on the current case. “Bold’s motion to disqualify is nothing more than a litigation tactic designed to distract defense counsel, disrupt the instant litigation, and harm the attorney-client relationship between Mr. Patterson and the defendants,” the attorney wrote.

Agreeing with the plaintiff’s position, Freeman said she was convinced that five Alston & Bird partners and two former firm attorneys had “a sufficiently direct relationship with Bold such that the court may presume that these attorneys obtained confidential information in the course of the prior representations.” The judge added that Alston & Bird did not provide enough documentation to support its claim that the firm has not retained any confidential information from the prior representations.