Elon Loses His Favorite Law Firm In Data Scraping Case Because They Played Both Sides

It’s pretty rare to see a judge disqualify a law firm from taking on a case. But Judge William Alsup has done just that, disqualifying the litigation powerhouse law firm Quinn Emanuel from representing ExTwitter in a big data scraping case.

We wrote about this case back in May, highlighting both the importance and complexities of it. There are all sorts of questions about whether or not scraping content from the public web should be allowed or not. Companies like Facebook have fought against it for years, but other companies were less concerned about it until recently. And that’s because over the last couple of years, they’ve realized that AI companies are willing to pay millions of dollars to get access to that data.

Both Meta and ExTwitter have targeted Bright Data, one of a number of scraping companies. So far, Bright Data has won lawsuits against both companies. Courts have said, “hey, look, this is public information, and you can’t sue someone for collecting public information.”

In the ExTwitter case, Judge Alsup gave the company about a month to try to file an amended complaint to see if the company could salvage any sort of legitimate claim. Just before that deadline, some lawyers from Quinn Emanuel (one of Elon’s favorite law firms) made an appearance on behalf of ExTwitter (basically, because the original complaint was so trounced, Elon was handing the case over to Quinn in hopes they could rescue it).

However, the folks at Bright Data were a bit surprised by this and quickly filed a motion to disqualify Quinn from the case, noting that Quinn had been retained and done work with Bright Data in its nearly identical case against Meta. This meant that (1) they would have inside knowledge of Bright Data and its litigation strategy and (2) they were effectively “switching sides” in a case, which is a huge legal ethical problem.

When Meta and Bright Data filed dueling lawsuits against each other, Bright Data engaged Quinn, Emanuel, Urquhart & Sullivan, LLP for advice. Now, Quinn has switched sides, representing X in suing Bright Data to prevent public web scraping and to shut down the same services at issue in the Meta case. Doing so violates the core tenets of loyalty and confidentiality under California’s Rules of Professional Responsibility. Quinn must be disqualified.

Quinn shot back that it had really done nothing too big or important for Bright Data, hadn’t learned anything confidential, and that this was another case anyway (this one is about ExTwitter, not Meta!)

The fact that different Quinn Emanuel attorneys (who are now ethically walled), pursuant to a tailored engagement letter, previously billed 30.6 hours for discrete, peripheral advice regarding a specific lawsuit in which Bright Data allegedly breached a different social media platform’s different terms and conditions should not result in X being deprived of its chosen attorneys at Quinn Emanuel in a case concerning Bright Data’s breach of X’s terms of use and other claims.

Judge Alsup is not known for putting up with bullshit, and has disqualified Quinn, and did so in fairly stringent terms. I’d call this a minor benchslap.

X does not dispute the central facts or law undergirding Bright Data’s motion. In its own words, “disqualification becomes mandatory” if the X and Meta matters are “substantially related.” And it tallies a team of nine attorneys who provided an overall assessment of the Meta litigation. Save for what it acknowledges are “minor wording” differences between Meta’s and X’s Terms, it agrees the cases are virtually identical, involving the same Bright Data services and conduct, and the same legal issues for the overlapping claims. The cases are irrefutably “substantially related.”

X argues this is not dispositive because Quinn’s role in the Meta case was too short-lived, “discrete,” or “limited” to trigger any ethical obligation beyond that, no matter how related it is. But the disqualification inquiry focuses on the relatedness of the cases and whether the lawyer had a “direct and personal” contact with the former client. That Quinn was not lead counsel is irrelevant. Nor can Quinn escape disqualification by characterizing its engagement as “limited.” That is just lawyer argument. The facts are that Quinn was hired to provide an overall assessment of the Meta litigation, and its report covered all aspects of the case, including procedural issues, discovery, strengths and weakness of the claims, defenses, and other issues.

And what about the fact that that case was about Meta, and this one is about ExTwitter? Judge Alsup wasn’t born yesterday.

True, X says, but irrelevant, because X was not mentioned by name. But cases can be substantially related even if the plaintiff is different. X concedes it geared its advice to place Bright Data in the best position procedurally and substantively to defend future claims by other website operators. That these other operators were referred to categorically, rather than by name, does not render Quinn’s advice immaterial, given that the conduct and governing law are the same.

Faced with undeniable factual and legal similarity, X tries changing the test. “To determine whether a substantial relationship exists,” it says, Bright Data must show that “any information Quinn Emanuel acquired … is material to the X Matter.” Q.Br. 8-9. But “this type of inquiry is outlawed.” Farris v. Fireman’s Fund Ins. Co., 119 Cal. App. 4th 671, 683 n.10 (2004). Under Rule 1.9(a), access to confidential information is irrelevant; and under Rule 1.9(c), access is presumed in substantially related matters. Neither rule would make sense if Bright Data had to prove that Quinn has confidential information to avoid proving that fact.

Regardless, Quinn possesses a wealth of material information. X’s efforts to minimize this through lack of recollection and disregard for the connections between the two cases cannot overcome the facts. Elan Transdermal Ltd. v. Cygnus Therapeutic Sys., 809 F. Supp. 1383, 1392- 93 (N.D. Cal. 1992) (“The Court, reading the stack of declarations from Irell attorneys, all proclaiming their ignorance …, is reminded of the words of Hamlet’s mother: ‘The lady doth protest too much, methinks.’”). Quinn prepared and received attorney work product, and engaged in multiple attorney-client communications, going to the heart of the legality of the services at issue. Not even the Quinn Report’s primary author claims irrelevance.

And, just to drive the point home:

The Court, it says, should use its “equitable” powers to forgive its past transgression and sanction its continuing ethical violation. But California courts do “not engage in a ‘balancing of equities’ between the former and current clients. The rights and interests of the former client will prevail.”

There’s a lot more in the opinion, but Judge Alsup is not at all impressed by the arguments Quinn lawyers are making here. I mean:

In any event, Quinn’s representation was not narrowly circumscribed. It was not asked to opine on some arcane or peripheral issue of, say, tax law or even copyright law. Bright Data retained Quinn because it was lead counsel in hiQ and familiar with Bright Data’s scraping technology from discovery in that case. Avisar ¶ 2. Quinn was given broad remit to advise on all of Bright Data’s defenses and strategies in the Meta cases. That is not “peripheral;” it is core.

Nor is there merit to X’s argument that Quinn’s advice was only tangentially relevant to this case. Quinn concedes it provided advice with an eye towards future suits by “other” website operators. Skibitsky ¶ 11. To minimize this fact, Ms. Skibitsky observes that Bright Data only quoted from the Quinn Report’s Executive Summary. Id. at ¶ 18. But the very purpose of an Executive Summary is to highlight the most important points in the Report. And this one was even in bold italics. One does not do that for unimportant points. Nor does Ms. Skibitsky deny that Quinn extensively discussed these issues with Bright Data’s Board. At most, she states that she can’t recall which “specific website operators” were discussed. Id. But that does not change the undisputed fact that she and her colleagues discussed Bright Data’s strategy for defending the identical services from identical claims by other website operators.

And thus, sorry Elon, Quinn needs to sit this one out.