Whistleblower Loses Legal Malpractice Claim over Public Identification

We are not sure where the line between privacy and whistleblowing exists, nor where the balance should be.  Galloway v Wittels  2014 NY Slip Op 30006(U)  January 6, 2014 Supreme Court, New York County  Docket Number: 151287/2013  Judge: Cynthia S. Kern is an interesting example of how a person can become enmeshed in a situation much larger than himself, and be buffeted by the resulting storm.

"The relevant facts are as follows. This action centers around the fact that plaintiff, in 2009, was publicly identified as a whistleblower in a patent lawsuit between Convolve, Inc. ("Convolve") and Seagate Technology, LLC ("Seagate"). Specifically, in 2003, plaintiff was employed as an engineer at Seagate Technology, LLC ("Seagate"). At that time, plaintiff testified as a 30 (b)(6) witness for Seagate in a pending patent lawsuit commenced by Convolve against Seagate (the "CS Lawsuit"). Six years later, after being terminated by Seagate, plaintiff was contacted by Seagate's attorney and was advised that the CS Lawsuit was likely going to trial in January 2010 and that he might be called as a trial witness on Seagate's behalf. According to plaintiffs complaint, "[p]rompted by the call from Seagate's attorney, [he] did some research on the ongoing lawsuit and learned that, in addition to the patent litigation, Convolve had sued Seagate for violation of a non-disclosure agreement (NOA)." Thereafter, "[a]fter reviewing the case, [plaintiff] came to the conclusion that Seagate·:had violated the NOA." (Emphasis in original). Apparently, disturbed by the realization that the work he had done at Seagate had violated the NOA, plaintiff sent an email to Convolve asking that its legal department contact him.

Plaintiff alleges that in response to this email, he was contacted by one or more attorneys from defendant Cadwalader Wickersham & Taftt, LLP ("Cadwalader"), who represented Convolve in the CS Litigation. Specifically, plaintiff alleges that defendant Debra Brown Steinberg ("Steinberg") was on the initial call with him. During the call, Cadwalder's attorneys ' allegedly asked if plaintiff was represented by counsel and after he told them he might still be represented by Seagate's attorney, the call ended. Thereafter, plaintiff alleges that he was contacted by Neil Singer, CEO of Convolve who recommended that plaintiff contact Wittels, an attorney formerly employed by Sanford Heisler's predecessor firm, Sanford Wittels & Heisler, LLP, at the time of the acts complained of herein, regarding plaintiffs termination of his employment from Seagate."

"Plaintiff now brings the instant action alleging that as a direct result of the defendants' misconduct in regards to allowing him to be publicly identified as a whistleblower he has been unable to find suitable employment in his field. Specifically, in his amended complaint, plaintiff asserts two causes of action against Wittels and Sanford Heisler, as successor in interest to Wittels former employer at the time the acts complained of herein occurred, for malpractice and breach of fiduciary duty. Wittels and Sanford Heisler now move for an order dismissing the two claims."

"In the present case, plaintiffs claim for malpractice must be dismissed as against the moving defendants as the allegations in the amended complaint, taken as true and given the benefit of every possible inference, fail to demonstrate that but for Wittels' alleged negligence plaintiff would not have been publicly named as a whistleblower and he would have found suitable employment. Moreover, plaintiff fails to plead actual and ascertainable damages that resulted from Wittels' alleged negligence."

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