Opinion
02 Civ. 6441 (LAK)
January 5, 2004
ORDER
Plaintiffs move to recuse the undersigned. The motion incorporates in its entirety the similar motion filed in related cases, which was denied in Faulkner v. National Geographic Society, ___ F. Supp.2d ___, Nos. 97 Civ. 9361 (LAK), 99 Civ. 12488 (LAK), 2003 WL 23018513 (S.D.N. Y. Dec. 23, 2003). To the extent that the two motions are identical, which is virtually in their entireties, no additional statement is required, and the Court refers to the Faulkner opinion. There is an additional point made here, however, that warrants the briefest response.
Plaintiffs point out that this case, unlike Faulkner and its companion cases, involves not only The Complete National Geographic, but also certain other products that allegedly were produced prior to August 1994, when the undersigned resigned from the law firm. Thus, the late Judge Higginbotham and the undersigned both were at the law firm from the first quarter of 1993 through August 1994 during which time Judge Higginbotham was a trustee of the National Geographic Society. This, however, is immaterial. Plaintiffs do not claim that Judge Higginbotham "served during such association [i.e., his professional association with the undersigned] as lawyer concerning the matter" in controversy, even giving appropriate regard to the fact that "the matter" in this case, unlike Faulkner, includes the pre-1994 products. Nor, for the reasons set forth in Faulkner, is he a "material witness concerning it." That would be so even if the issues that plaintiffs now raise concerning the pre-1994 products arose as matters of potential concern at the National Geographic Society. In consequence, 28 U.S.C. § 455(b)(2) does not apply.
Plaintiffs note that the complaint here asserts that Judge Higginbotham asked at a 1997 board of trustees meeting whether the Society had obtained an independent counsel's opinion regarding the proposed digital products now at issue in this case and expressed concern about potential damage exposure. Pl. Mem. 5. This changes nothing. While Judge Higginbotham, had he lived, conceivably might have been a witness, he never was a witness in this case, and he no longer can testify. And if plaintiffs' point is to fault the Court for failing to notice that allegation in their complaint — which is so long that courtesy copies were provided on CD-ROM rather than on paper (i.e., 662 paragraphs of allegations over 136 pages plus many pages of exhibits) — it readily accepts responsibility for any such oversight.
The Court is not aware of any evidence that any issues concerning the pre-1994 products arose at any time prior to the commencement of this action.
Accordingly, for the reasons set forth in Faulkner and in this order, the motion to recuse is denied.
SO ORDERED.