Opinion
No. 03-CV-6040L.
July 20, 2004
DECISION AND ORDER
Preliminary Statement
Pending before the Court are two motions filed by plaintiff William Bell: (1) to compel answers to discovery requests (Docket #15), and (2) to order independent counsel for each defendant in the above-captioned action. (Docket # 18). Defendants oppose both motions and have submitted papers in opposition. Oral argument was heard on January 23, 2004. By Order of Judge David G. Larimer dated April 16, 2003, all pretrial motions have been referred to me pursuant to 28 U.S.C. § 636(b)(1)(A)-(B). (Docket #10).
Decision
1. Motion to Compel: Plaintiff's motion to compel (Docket #15) alleges that defendants have wholly failed to respond to plaintiff's first request for production of documents and interrogatories and seeks sanctions and costs incurred in filing the motion. While acknowledging that discovery responses were not timely responded to, defendants argue that the motion should be denied based on plaintiff's failure to demonstrate sincere attempts to resolve this dispute. Defendants further note that the responses have since been served and therefore the motion is moot.
As expressed during oral argument, defendants' disregard of the time limits established by the Federal Rules of Civil Procedure is problematic for them and troubling to this Court. Any further neglect in responding in a timely fashion to discovery demands (or gaining an extension from opposing counsel to respond) may result in sanctions, including plaintiff's attorneys' fees in making the instant motion to compel. However, the court will not impose such sanctions at the present time. Plaintiff's motion to compel is denied as moot and plaintiff's motion for costs and sanctions is denied without prejudice should further violations occur.
2. Motion to Disqualify: Plaintiff's second motion requests the Court to order separate counsel for each individual defendant. Defendants oppose the motion and assert that no conflict of interest is present.
In this Circuit, motions to disqualify counsel are disfavored, and the moving party bears the heavy burden of demonstrating that disqualification is warranted by satisfying "a high standard of proof." Evans v. Artek Sys. Corp., 715 F.2d 788, 791 (2d Cir. 1983); Sauer v. Xerox Corp., 85 F. Supp.2d 198, 199 (W.D.N.Y. 2000). This is primarily because "disqualification has an immediate adverse effect on the client by separating him from counsel of his choice, and [because] disqualification motions are often interposed for tactical reasons." Board of Educ. of City of N.Y. v. Nyquist, 590 F.2d 1241, 1246 (2d Cir. 1979). However, while courts will not lightly grant a motion to disqualify, any doubts must be resolved in favor of disqualification. Hull v. Celanese Corp., 513 F.2d 568, 571 (2d Cir. 1975); Sauer, 85 F. Supp.2d at 199-200; Felix v. Balkin, 49 F. Supp.2d 260, 267 (S.D.N.Y. 1999).
"Disqualification is warranted only in situations where violations of the Canons of the Code of Professional Responsibility (the `Canons') pose a `significant risk of trial taint.'" Bulkmatic Transp. Co., Inc. v. Pappas, 2001 WL 504841 at *2 (S.D.N.Y. May 11, 2001). Here, plaintiff argues that the risk of trial taint is derived from the conflict of interest arising from joint representation of the corporate defendant and individual defendants. Defendants argue that plaintiff's position is speculative and does not meet the high burden of showing that disqualification is warranted.
Because all of the defendants have taken the same defensive position — and all deny that Bell was ever discriminated against or that the alleged inflammatory e-mail was ever written or received by any defendant — the Court is inclined to agree with defendants at this time. See Butler v. National Urban League, 1997 WL 538824 at *3 (S.D.N.Y. September 2, 1997) (where all defendants in employment discrimination action vigorously denied discriminating against plaintiff, argument that parties could not be jointly represented because the liability amongst them may differ was deemed specious).
During oral argument of the motions, defense counsel agreed to provide the Court and plaintiff's counsel with affidavits from each individual defendant which would aver that potential conflict issues have been discussed and are understood, that defendants are aware of their entitlement to separate counsel at no cost, and that all understand and wish to be represented by current counsel. See A.I. Credit Corp. v. Providence Washington Ins. Co., 1997 WL 231127 at *3 (S.D.N.Y. May 7, 1997) ("While client consent may not be enough where a conflict is apparent, here, where plaintiff has not shown that there is or even may be a conflict, the consent of the defendants to joint representation is significant"); Softel v. Dragon Medical and Scientific Commun. Ltd., 1995 WL 75490 at *3 (S.D.N.Y. February 23, 1995) ("When the parties have `freely and intelligently' given consent to the representation, the court `should refrain from paternalistically infringing on a party's right to a lawyer of its choice absent compelling factors indication that the attorney's loyalty to his client has been compromised'") (citing Vegetable Kingdom, Inc. v. Katzen, 653 F. Supp. 917, 925 n. 6 (N.D.N.Y. 1987)). Such affidavits were filed with the Court on February 6, 2004 (Docket #49). A review of the affidavits satisfies the Court that each individual defendant has been advised of potential conflicts and still wishes to proceed with joint representation.
The Court has no doubt that should any issues arise in the future indicating the presence of an actual or potential conflict, that as an officer of the Court, defense counsel will immediately bring such concerns to the Court's attention.
Conclusion
Plaintiff's motion to compel is denied as moot and plaintiff's motion for sanctions is denied without prejudice. Finally, plaintiff's motion to disqualify is denied without prejudice.
SO ORDERED.