Opinion
Civil No. 98-1425 (JRT/RLE).
February 21, 2001.
Richard P. Mahoney and Victor E. Lund, MAHONEY, DOUGHERTY AND MAHONEY, P.A., Minneapolis, MN, for plaintiffs.
Richard G. Mark, Susan E. Ryan and Kristin R. Sankovitz, BRIGGS MORGAN, Minneapolis, MN, for defendants.
ORDER AFFIRMING ORDER OF MAGISTRATE JUDGE
Plaintiffs bring this lawsuit against defendants asserting claims of legal malpractice, negligent and fraudulent misrepresentation, legal malpractice as to a Third Party Beneficiary and a violation of the Minnesota Consumer Fraud Act. Plaintiffs' claims arise from their alleged detrimental reliance on an Opinion Letter issued by defendant Dorsey Whitney ("Dorsey") and authored by defendant John T. Kramer ("Kramer"), regarding a private placement of stock in International Gaming Management, Inc. This matter is before the Court on plaintiffs' appeal from portions of Magistrate Judge Raymond L. Erickson's Order dated June 19, 2000, precluding plaintiffs from deposing Dorsey attorneys, Mark A. Jarboe ("Jarboe") and James E. Townsend ("Townsend").
An order of a Magistrate Judge on nondispositive pretrial matters may be reversed only if it is clearly erroneous or contrary to law. See 28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P. 72(a); D. Minn. LR 72.1(b)(2). The Court has reviewed plaintiffs' submission and the files, records and proceedings with respect to the Magistrate Judge's Order from which plaintiffs appeal. Based on this review, the Court finds nothing in the record that suggests these portions of the Order are clearly erroneous or contrary to law.
ANALYSIS
A. Relevance of Proposed Depositions
Plaintiffs contend that the Magistrate Judge erred in granting defendants' motion for a protective order. They appeal in part on grounds that the Magistrate Judge failed to understand the purposes for which they want to depose Jarboe and Townsend and that the Magistrate Judge erroneously concluded that the factual information plaintiffs hope to elicit from these depositions is irrelevant to plaintiffs' malpractice claims. Specifically, plaintiffs argue that the history of the Indian Gaming practice group at Dorsey and the firm's policies relating to Indian gaming matters is relevant to prove or disprove Kramer's negligence. Plaintiffs further suggest that this information is relevant to determine whether Dorsey acted reasonably in not contacting attorneys who specialize in Indian Gaming before issuing the Opinion Letter. On appeal, plaintiffs claim that this information is factually relevant to plaintiffs' malpractice claims and that they were unable to obtain this information when they deposed Kramer on June 21, 2000. Plaintiffs thus contend that they need to depose Jarboe and Townsend to get this information.
Plaintiffs appear to quarrel with the fact that the Magistrate Judge focused only on the relevance of this information in relation to Jack Kramer. In their memorandum of law, plaintiffs contend that Dorsey's conduct is also relevant to this litigation.
The Court does not find that the Magistrate Judge committed clear error when he concluded in the Order that "while the approaches of various practice groups, at Dorsey, may be of general interest to the Plaintiffs, we have no basis to conclude on this Record, that such information is relevant to the plaintiff's [sic] malpractice claim." Moreover, even if this Court agreed that this information were relevant to the reasonableness of Dorsey or Kramer's conduct in issuing the Opinion Letter, the Court finds that plaintiffs had adequate opportunity to, and actually did elicit this information during Kramer's June 21 deposition. Kramer answered questions about Dorsey's policies regarding consultation with attorneys specializing in relevant fields. Kramer also described Dorsey's use of the ABA "Silverado Guidelines" to guide the issuance of legal opinions. While plaintiffs point out that Kramer did not know whether an Indian gaming practice group existed at Dorsey during the time he was drafting the Opinion Letter, or specific details about Jarboe's practice, this information is of minor factual significance to this litigation. Consequently, it would be cumulative and unduly burdensome to expend the time and energy to depose Jarboe and Townsend for such information. See Rule 26(b)(2), Federal Rules of Civil Procedure. For these reasons, the Court finds nothing in the Magistrate Judge's Order that is clearly erroneous or contrary to law.
B. Rule 701 Lay Opinion Testimony
Plaintiffs' second ground for appeal is that Jarboe and Townsend may give lay opinion testimony under Rule 701 of the Federal Rules of Evidence despite their lack of personal knowledge of or involvement with the Opinion Letter at issue in this case. They assert that Jarboe and Townsend are competent to give their lay opinion testimony because of their familiarity with relevant historical facts. Plaintiffs contend that they may opine based on documents presented to them or on the facts of the case presented in narrative form. Plaintiffs rely on Eisenberg v. Gagnon, 766 F.2d 770 (3d Cir. 1985), to substantiate this point. In Eisenberg, the testifying attorney reviewed an offering memoranda when it was being prepared, but because his partners failed to disclose crucial facts to him, his legal opinion was based on incomplete information. See id. at 781. These undisclosed facts, which would have altered his legal opinion, were also the facts giving rise to the lawsuit. See id. Therefore the lay witness in Eisenberg had actual personal involvement with the process under scrutiny in the legal malpractice claim. See id. The witness's lack of personal information of the facts at issue is significant because it illustrates a flaw in production process. However, unlike the witness in Eisenberg, Jarboe and Townsend not only lack knowledge of facts surrounding the Opinion Letter, they also had no personal involvement with or knowledge that Jack Kramer was drafting the Opinion Letter. Thus the present case is distinguishable from Eisenberg.
Accordingly, based on this review, the Court finds nothing in the record that suggests these portions of the Magistrate Judge's Order are clearly erroneous or contrary to law. ORDER
Based on the files, records, and proceedings herein, IT IS HEREBY ORDERED that the Order of the Magistrate Judge [Docket No. 53] is AFFIRMED.