The judge overseeing the criminal trade secrets case against six individuals who moved from Jawbone to rival Fitbit has turned back an attempt by federal prosecutors to disqualify lawyers from Orrick, Sutcliffe & Herrington from representing one of the defendants.

Federal prosecutors asked to disqualify Orrick and partner Randy Luskey from representing former Jawbone employee Katherine Mogal, arguing that the firm and Luskey previously represented the company and Mogal's co-defendants in the federal criminal investigation, proceedings at the International Trade Commission, and in prior civil litigation with Jawbone.

But in an order issued Wednesday, U.S. District Judge Beth Labson Freeman of the Northern District of California, who is overseeing the cases, found that the defendants had “knowingly, voluntarily, and intelligently” signed off on three rounds of waivers allowing for Orrick's continued representation of Mogal.

“We are pleased with the district court's decision to reject the government's motion and allow Ms. Mogal to move forward with her counsel of choice,” Orrick partner Walt Brown said in an emailed statement. “We look forward to defending her against these meritless charges.”

Although Orrick initially represented all six defendants in prior civil matters and during earlier stages of the criminal investigation, Mogal's five co-defendants have all hired their own lawyers. But Assistant U.S. Attorney Amie Rooney wrote in an Aug. 3 motion to disqualify Orrick that Luskey's continued representation of Mogal “presents potential conflicts of interest because it is substantially related to Mr. Luskey's previous representation of her co-defendants.”

But in response to the government, Orrick's Luskey, Brown and Melinda Haag argued in an Aug. 24 filing that almost none of the defendants even knew each other before the state court case and ITC action, and the government's indictment hadn't accused them of working in tandem with one another.

Freeman on Wednesday sided with Orrick finding that “the key potential conflict” the government raised—that Orrick may not be able to effectively cross-examine any co-defendant—was “effectively moot.” Mogal's latest waiver, the judge noted, includes a contingency plan should she need a lawyer to cross-examine one of her co-defendants at trial. In such a case, Mogal and Orrick have agreed that an independent attorney could handle cross-examination.

The judge also noted that she had the benefit of reviewing in camera the waivers that Orrick's former clients had signed—something the government had not been able to review. Freeman wrote that at a hearing earlier this month, the government “informed that court that so long as the court is satisfied that the waivers meet all of the requirements mandated by law, the government would not object to Orrick's continued representation of Mogal.”

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