Opinion
NO. 2:07-cv-0315 FCD KJM.
August 10, 2007
MEMORANDUM AND ORDER
This matter is before the court on plaintiff Rick Eaton's ("plaintiff") motion to recuse defendants' counsel, Bruce Scheidt ("Scheidt") of Kronick, Moskovitz, Tiedemann Girard, on the ground Scheidt committed professional misconduct in connection with the arbitration proceedings wherein plaintiff challenged the City's termination of his employment. Specifically, plaintiff contends Scheidt (1) "knowingly and deliberately misled [the arbitrator] by presenting [into evidence] a backdated and fraudulent version of General Order No. 3 [the disciplinary policy used by defendants as a basis to terminate plaintiff]" (Pl.'s Mem. of P. A., filed June 20, 2007 ["Pl.'s Mtn."], at 1:28-2:1); and (2) Scheidt did not inform plaintiff or provide him with an audiotape, prior to the arbitration proceeding, of an interview Scheidt conducted of Officer Byron Green ("Green"). Plaintiff maintains that Scheidt's conduct renders him a material witness in this case, thereby necessitating his disqualification from service as defendants' counsel.
Defendants are the City of Rocklin (the "City"), Mark J. Siemens ("Siemens"), Chief of Police, and Carlos A. Urrutia ("Urrutia"), City Manager (collectively, "defendants").
Because oral argument will not be of material assistance, the court orders this matter submitted on the briefs. E.D. Cal. L.R. 78-230(h).
Defendants vigorously oppose plaintiff's allegations of wrongdoing by Scheidt, asserting that plaintiff's motion is both "frivolous and reckless," in that it is "devoid of evidentiary support for its otherwise libelous (if made outside of a court proceeding) accusations of professional misconduct against a member of the California State Bar in good standing." (Opp'n, filed July 10, 2007, at 1:11-13.)
In support of their opposition, defendants separately filed lengthy evidentiary objections to plaintiff's and Green's declarations filed in support of the motion and plaintiff's rebuttal declaration filed in support of the reply. (Docket #s 44, 46, and 50.) In large part, the objections are sustainable as the proffered evidence is either inadmissible as hearsay, lacking in personal knowledge or irrelevant (since, for example, the evidence fails to prove that Scheidt had any percipient, non-privileged knowledge, at any time, about the matters Siemens allegedly testified about at the arbitration). However, the court does not rule specifically on any of defendants' objections herein because even considering plaintiff's evidence in its entirety, there is no basis for ordering defense counsel's disqualification.
To demonstrate a legal basis for disqualification, plaintiff must demonstrate, by admissible evidence, that (1) Scheidt committed professional misconduct which will likely affect the outcome of this litigation; and/or (2) there is a genuine need for Scheidt's testimony, no other means exist to obtain the desired information, the information sought is relevant and non-privileged and the information is crucial to the preparation of the case. Because plaintiff fails to meet his burden in every respect, the court DENIES plaintiff's motion to recuse defendants' counsel.
BACKGROUND
Scheidt is an attorney licensed by the State Bar of the State of California to practice before all of the courts of the State of California and the United States District Court, Eastern District of California. (Scheidt Decl., filed July 10, 2007, ¶ 1.) He is a shareholder in Kronick, Moskovitz, Tiedemann Girard ("Kronick"), attorney of record in this matter for defendants. (Id. at ¶ 2.) He is chairman of Kronick's Board of Directors and is chairman of the firm's Labor and Employment Practice Group. (Id.) He graduated from the University of Pacific's McGeorge School of Law in 1991, with distinction, and has been in private practice continuously since then. (Id.) Scheidt is the lead trial counsel for defendants in this action. (Id. at ¶ 3.)
Scheidt's first contact with Siemens occurred in 2003, in connection with plaintiff's filing a Petition of Writ of Administrative Mandamus challenging the City's 40-hour suspension of him for violation of the City of Rocklin Police Department's ("Department") sexual harassment policy. Plaintiff filed a Petition for Writ of Administrative Mandamus to reverse his suspension on an alleged statute of limitations defense under the Public Safety Officers Procedural Bill of Rights Act ("POPBRA"). Scheidt represented the City in opposing plaintiff's petition. The Superior Court of the County of Placer, State of California, denied plaintiff's writ. (Id. at ¶ 6.)
In his reply, plaintiff alleges Scheidt committed professional misconduct in connection with this early proceeding as well; specifically, plaintiff contends Scheidt withheld from plaintiff "critical police log documents" in his 2003 arbitration proceeding. (Reply, filed July 20, 2007, at 11-12.) The court does not consider these allegations herein as they were raised by plaintiff, for the first time, in his reply, and more importantly, the 2003 disciplinary proceedings are not at issue in this action.
Scheidt then served as lead counsel for the City in 2005 in the arbitration, conducted in accordance with the American Arbitration Association's Voluntary Arbitration Rules, of plaintiff's grievance of his employment termination. (Id. at ¶ 4.) The administrative record of the arbitration hearing consists of seven days of hearings before Arbitrator William Riker (the "arbitrator"), totaling more than 1300 pages of transcripts of witness testimony, including more than 100 exhibits submitted and moved into evidence. (Id.) The arbitrator ultimately recommended to defendant Urrutia that the City's termination of plaintiff "for cause" be sustained and his grievance/appeal be denied. (See Mem. Order, filed May 23, 2007.)
Plaintiff filed the instant action on February 16, 2007. Scheidt is not a named defendant, and there are no allegations against Scheidt personally in the complaint. (Compl., filed Feb. 16, 2007.) The gravamen of plaintiff's complaint concerns his termination by the City in September 2004.
Plaintiff was served with the Notice of Intent to Terminate along with the accompanying written materials on September 30, 2004. (Siemens Decl., filed July 10, 2007, ¶ 8, Ex. E.) He was later served with a Notice of Termination dated November 1, 2004, on or about November 2, 2004. (Eaton Decl., June 20, 2007, ¶ 18; Siemens Decl., Ex. F.) Provisions of the revised 2001 version of "General Order 3," the Department's disciplinary policy, were cited in the Notice of Termination. (Siemens Decl., ¶ 11 [ compare Ex. F (Notice of Termination) and Ex. B (2001 revised General Order 3)].) The Notice also cited a January 16, 2003, Departmental Directive and Admonition (the "Departmental Directive") as an additional policy basis for the discipline. (Id. at Ex. G.)
The Notice of Termination identified six factual bases for plaintiff's termination, along with citations to specific policy provisions in the 2001 revised version of General Order 3. (Id. at ¶ 10, Ex. F.) Specifically, the six factual grounds constituted: (1) disobedience or insubordination; (2) wrongful, unlawful exercise of authority; (3) disparaging remarks or conduct; (4) knowingly making false, misleading, or malicious statements; (5) knowing or negligent violation of the Department Manual; and (6) failure to support the mission of the agency, its policies, procedures, orders, and directions of the Chief of Police and his immediate commanding officer. (Id. at ¶ 13, Ex. F.) The 2001 version of General Order 3, quoted in the Notice, was used to support four of the six charges. (Id. at ¶ s 10, 14.) The Departmental Directive independently supported all six grounds for plaintiff's termination. (Id. at ¶ s 10, 13-18.)
While the Notice of Termination, itself, cited provisions of the 2001 revised version of General Order 3, provided to plaintiff with the notice was a copy of an earlier 1997 version of General Order 3. At the time of plaintiff's termination, Siemens was not aware that the 1997 version of General Order 3 rather than the 2001 version, cited in the Notice, was provided to plaintiff. (Siemens Decl., ¶ 9.) Plaintiff's employment termination took effect on or about November 2, 2004. (Eaton Decl., ¶ 1.)
In support of defendants' opposition, Siemens compared the relevant provisions from the 1997 version of General Order 3 with the citations from the 2001 version of General Order 3 that are quoted verbatim in the Notice of Termination. (Siemens Decl., ¶ 11.) Both versions of General Order 3 expressly state that "insubordination" is cause for discipline, up to and including termination. (Id. at ¶ 11 and Ex. A [General Order 3, rev. 10-15-97, § I.A.4]; Ex. B [General Order 3, rev. 12-05-01, § III.A.5.e.].) In addition to stating that "insubordination" is cause for termination, the 1997 version of General Order 3 states: "No employee shall, when acting within the scope of employment, openly or publicly criticize the Department or any member of the Department. Constructive criticism through appropriate channels is always welcome." (Id. at ¶ 12 and Ex. A thereto [General Order 3, rev. 10-15-97, § VIII.E.1, p. 4 of 7].) Siemens declares that is materially the same as a cause for discipline under the 2001 version of General Order 3, which states in relevant part: "Disparaging remarks or conduct concerning duly constituted authority to the extent that such conduct disrupts the efficiency of the Department or subverts the good order, efficiency and discipline of the Department or that would tend to discredit any member thereof." (Id. at ¶ 12 and Ex. B [General Order 3, rev. 12-05-01, § III.A.5.g].)
Over the years, the Department's disciplinary policy has been periodically revised. When Siemens arrived in his current position as Chief of Police, the Department had a disciplinary policy called "General Order 3." (Siemens Decl., ¶ 3 and Ex. A.) At the time of Siemens hiring by the City in July 2001, General Order 3 had been last revised in October 1997. (Id.) Siemens brought with him from the City of Marysville a compact disk containing a copy of a disciplinary policy that had been adopted by the City of Marysville Police Department and originally developed for police departments throughout the State by the attorney firm of Ferguson, Praet and Sherman and its policy-manual branch now known as "Lexipol." (Id. at ¶ 4.) Siemens inserted language from the City of Marysville Police Department's disciplinary policy into a Microsoft Word file on his computer in his office at the Department on or about December 2001. (Id. at ¶ 5.) On or shortly after that date, he asked his secretary, Debbie Miller ("Miller"), to reformat the Lexipol draft disciplinary policy into a revised version of "General Order 3," to replace the 1997 version. (Id.) He also asked Miller to distribute the revised version of "General Order 3" to officers in the Department after she completed her reformatting work. (Id. at Ex. B.)
Miller, who first began working with Siemens on November 13, 2001, recalls that as one of her earliest assignments, Siemens asked her to reformat a revised General Order 3. (Miller Decl., filed July 10, 2007, ¶ 3.) She performed that task. (Id.) Miller specifically recalls that Siemens asked her to disseminate the 2001 revised version of General Order 3. (Id. at ¶ 4.) To comply with that instruction, she made a copy of it and placed that copy on a clipboard in the roll call room in the old Police Department (which is now the City Fire Department). (Id. at Ex. A thereto [2001 revised version of General Order 3].)
Siemens did not modify or cause anyone else to modify the 2001 revised version of the Department's General Order 3 at any time after December 2001. (Id. at ¶ 6.) However, in 2004, he used a 2004 draft disciplinary policy from Lexipol to replace the 2001 revised General Order 3 with "Section 340" (dated February 2004) of the Rocklin Police Department's Manual as the operative disciplinary policy for the Department. (Id. at Ex. C.)
Minutes of Siemens' staff meetings show he informed plaintiff and other police supervisors on at least five occasions, starting January 3, 2002, that a Lexipol draft policy manual ultimately would replace all general orders. Siemens informed plaintiff and other police supervisors that the Lexipol draft policy manual would be accessible on supervisors' patrol car computers. (Id. at ¶ 7.)
To corroborate Siemens' testimony, defendants offer the declaration of forensic computer expert, Mark J. Menz ("Menz"), who analyzed two CD-ROMs that contained computer files prepared by Siemens and Miller at their computers. (Menz Decl., filed July 10, 2007, ¶ 2.) Each CD contained a single Microsoft Word document file. (Id.) Menz examined the two documents to determine the creation date and last access date of the documents. (Id. at ¶ 3.) He concluded:
The document with the filename "Disciplinary Policy.doc" was created on 12/03/2001 at 11:03:00AM. The last time it was revised was on 12/03/2001 at 5:02:00PM by the user profile "Siemens." The document with the filename "3 — Revision #2 — RULES AND REGULATIONS.doc" was created on 12/06/2001 at 8:43:00 AM. The last time the document was revised was on 12/11/2001 at 1:42:00PM by the user profile "MillerD."
(Id. at ¶ 9, Ex. C.)
Also relating to Siemens' testimony, defendants offer the declaration of Rocklin Police Captain Dan Ruden ("Ruden"), who examined the Department's internal affairs records regarding employee discipline of sworn peace officers relating to actions or omissions that allegedly occurred during the time period from December 1, 2001 (the date stated on the 2001 revised General Order 3), and 2004 when "Section 304" of the Rocklin Police Department's Manual went into effect. (Ruden Decl., filed July 10, 2007, ¶ 6.) Ruden performed this review to ascertain whether the 1997 or 2001 version of General Order 3 was used as the basis for the disciplinary action. He found one action involving a community service employee wherein the 1997 version of General Order 3 was used, despite the conduct occurring after December 1, 2001, and another action against a peace officer for conduct during this same time wherein the 2001 version of General Order 3 was used. (Id. at ¶ s 7-8.) In Ruden's opinion, this overlapping use of the 1997 and 2001 versions of General Order 3, during the time period of December 2001 through 2004 (when disciplinary policy "Section 340" went into effect) was "inadvertent." (Id. at ¶ 9.) At the time of the disciplinary actions against these employees, Siemens was not aware of the overlapping use of these versions of the disciplinary policy. (Siemens Decl., ¶ 12.)
Scheidt attests that he does not have any percipient knowledge about the Department's preparation of, or revisions to, General Order 3, upon which plaintiff's termination was based. (Scheidt Decl., ¶ 5.) The sole source of all information that he has been told about General Order 3's preparation and/or revisions is attorney-client privileged communications with his clients, the City and Siemens. (Id.) Scheidt was also not involved in serving plaintiff with the Notice of Intent to Terminate and accompanying materials on September 30, 2004. (Id. at ¶ s 17, 19.) Siemens personally served the Notice on plaintiff along with copies of the written materials on which the City relied in making the decision to terminate his employment. (Siemens Decl., ¶ 8, Ex. E [without attachments or exhibits].) Miller and Ruden assisted Siemens in organizing the documents attached to the Notice of Termination. (Id. at ¶ 9.)
At the subject arbitration hearing in 2005, Siemens authenticated General Order 3 as revised in December 2001 and explained why the Order had been revised. (Scheidt Decl., ¶ 23, Ex. A at 377:18-380:7.) Plaintiff's counsel objected to the admissibility of the 2001 version of General Order 3, claiming said order had not been provided to plaintiff previously. The arbitrator permitted plaintiff's counsel to question Siemens on the admissibility of "Exhibit M," which the City offered as General Order 3 as revised in December 2001. Plaintiff's lawyer also cross-examined Siemens regarding the posting and distribution of General Order 3 as revised. (Id. at Ex. A at 380:8-386:25.) At the conclusion of plaintiff's counsel's questioning of Siemens, the arbitrator overruled plaintiff's objection, received General Order 3 as revised December 2001 into evidence and invited the parties to brief the "difference in wording" of the 1997 and 2001 versions of the Order. (Id. at ¶ 24, Ex. A at 387:1-11.)
Prior to the arbitration, the Department was served with subpoenas issued by plaintiff's counsel commanding many of the Department's police officers to appear and testify at the arbitration. (Siemens Decl., ¶ 24.) Green was one of those officers subpoenaed. (Id. at Ex. K.) In preparation for the hearing, Scheidt interviewed Green and the other employees to discuss their potential testimony. (Scheidt Decl., ¶ 7.) Contrary to Green's assertions in his declaration filed in support of plaintiff's motion, Scheidt maintains that he did not tell Green during the interview that Scheidt was asking him questions which would tend to bolster the claims against plaintiff. (Id. at ¶ 8.) The purpose of Green's interview, Scheidt asserts, was to learn any and all harmful and helpful information about which Green might testify. (Id.) Again contrary to Green's claims, Scheidt attests he did not instruct Green that he could not testify or not talk to plaintiff and/or plaintiff's lawyer. (Id. at ¶ 9.) Scheidt also disputes Green's contention that Scheidt audio-taped his interview with Green or any of the other police department employees who were subpoenaed by plaintiff's counsel. (Id. at ¶ 10.) Ruden also declares, contrary to Green's testimony (but consistent with Scheidt's testimony), that he does not recall being in attendance at Green's interview conducted by Scheidt. Ruden does, however, recall conducting a tape-recorded interview of Green in December 2005, which interview was unrelated to plaintiff. (Ruden Decl., ¶ 5.)
Plaintiff's counsel did not call Green to testify at the arbitration. However, plaintiff testified on direction examination by his counsel as to what Green told him concerning Siemens' alleged personal use of a City vehicle. (Scheidt Decl., ¶ 11, Ex. A at 776:19-777:11.)
STANDARD
This district has adopted the Rules of Professional Conduct of the State Bar of California and decisions of any court applicable thereto as standards of professional conduct in this court. E.D. Cal. L.R. 183-180(e); see also In re County of Los Angeles, 223 F.3d 990, 995 (9th Cir. 2000) (federal courts apply state law in determining matters of disqualification). Ultimately, the court has discretionary authority under its inherent powers to disqualify counsel because of a violation of professional ethics.Crenshaw v. MONY Life Ins. Co., 318 F. Supp. 2d 1015, 1020 (S.D. Cal. 2004). Nevertheless, disqualification is "a drastic measure that is disfavored." Id. Indeed, "[e]ven a violation of the California Rules of Professional Conduct does not automatically compel disqualification." Id. Courts routinely recognize the highly limited scope of disqualification:
Since the purpose of a disqualification order must be prophylactic, not punitive, the significant question is whether there exists a genuine likelihood that the status or misconduct of the attorney in question will affect the outcome of the proceedings before the court.Hetos Investments, LTD v. Kurtin, 110 Cal. App. 4th 36, 48 (2003).
Here, in addition to alleging Scheidt committed professional misconduct, plaintiff also moves for disqualification specifically on the ground that Scheidt is a material witness to this action. In such cases, plaintiff bears the burden of proof to demonstrate the basis for disqualification. See Colyer v. Smith, 50 F. Supp. 2d 966, 967 (C.D. Cal. 1999) (the moving party failed to demonstrate his need for the testimony of opposing counsel). "A motion to disqualify should be accompanied by declarations and admissible evidence sufficient to establish the factual predicate upon which the motion depends." Id.; Smith, Smith Kring. v. Sup. Ct., 60 Cal. App. 4th 573, 577-78 (1997) (evidence for recusal of an attorney witness must be more than conclusory allegations; absent evidentiary support, court on motion to disqualify should disregard factual contentions made in moving papers).
"[W]henever an adversary declares his intent to call opposing counsel as a witness, prior to ordering disqualification of counsel, the court should determine whether counsel's testimony is, in fact, genuinely needed.'" Id. at 581 (citations omitted). The standard to depose opposing counsel sets an equally high bar. A party seeking to take the deposition of opposing counsel must show that (1) no other means exist to obtain the information than to depose opposing counsel, (2) the information sought is relevant and nonprivileged; and (3) the information is crucial to the preparation of the case. Doubleday v. Ruh, 149 F.R.D. 601, 613-14 (E.D. Cal. 1993).
ANALYSIS
A. Scheidt Did Not Commit Professional Misconduct Warranting Disqualification
1. General Order 3
As the primary basis for this motion, plaintiff alleges that Scheidt committed professional misconduct, justifying his recusal, by "knowingly and deliberately misled[ing] [the arbitrator] by presenting a backdated and fraudulent version of General Order 3 . . . as a true and correct copy of [the Order]." (Pl.'s Mot. at 1:7-2:1.) Yet, plaintiff offers no evidence in support of this serious allegation. Neither plaintiff's declaration nor Green's declaration (the sole "evidence" submitted in support of the motion) contain any allegations, let alone facts, that Scheidt had responsibility, was involved in, or has personal knowledge as to the preparation and revisions to General Order 3. Instead of evidence, plaintiff relies on pure speculation. (See e.g., Pl.'s Mot. at 3:19-22 [concluding that "Siemens was not alone in perpetrating [the alleged] fraud," implying that Scheidt assisted Siemens but failing to cite any evidence or even a description of how Scheidt purportedly did so].)
In stark contrast, defendants present admissible evidence establishing the falsity of plaintiff's allegations. Scheidt states in his declaration under penalty of perjury that he does not have any percipient knowledge about the Department's preparation of, or revisions to General Order 3, and that the sole source of all information that he has been told about General Order 3's preparation and/or revisions are attorney-client privileged communications with his clients. (Scheidt Decl., ¶ 5.) Similarly, Siemens also declares that Scheidt "is not a percipient witness to plaintiff's misconduct nor the preparation of the Police Department's disciplinary rules and general orders." (Siemens Decl., ¶ 27.)
In his reply, plaintiff emphasizes that Scheidt was involved in another officer's disciplinary proceedings, during the same time frame, wherein the officer was disciplined under the 1997 version of General Order 3. Plaintiff asserts this fact demonstrates Schedit knew that the 1997 Order was the operable order at the time, not the 2001 version. Plaintiff's assertion is baseless. As set forth above, Ruden explains that inadvertently during the applicable time frame, the City used, on two occasions, the 1997 and 2001 versions of General Order 3 interchangeably. However, as to this use, again, plaintiff has not produced any evidence that Scheidt had percipient knowledge of this fact, and Scheidt declares that he did not.
Indeed, it was Siemens, not Scheidt, who authenticated General Order 3 as revised in December 2001 (identified as Exhibit M in the arbitration) and testified about its contents. (Scheidt Decl., ¶ 23, Ex. A at 377:18-380:7.) As described above, Siemens and his secretary Miller attest that the 2001 version of the Order was created in 2001 and steps were taken to disseminate the revised policy. (Siemens Decl., ¶ s 4-7; Miller Decl., ¶ 3-5.) To corroborate their testimony herein, defendants proffer the testimony of forensic computer expert Menz who attests that the version of General Order 3, introduced at the arbitration, which is facially dated 2001 was not fraudulently backdated; instead, it was created in 2001 by Siemens and Miller and has not been revised since then. (Menz Decl., ¶ 9.)
Moreover, contrary to plaintiff's suggestions in his declaration, Scheidt did not admit any wrongdoing at the arbitration. While Scheidt did remark, at one point, with respect to General Order 3, that a "miscopy job" had occurred, he was referencing the fact that "even numbered pages [of the Order] were missing" from the copy he was using during Siemens' direct examination. A lunch break was thereafter taken to permit time to gather a complete copy for use during the proceedings. (Scheidt Decl., ¶ 25, Ex. A at 296:15-297:16.)
This court properly assumes that lawyers behave ethically. DCH Health Servs. Corp. v. Waite, 95 Cal. App. 4th 829, 834 (2002) ("[T]he court should start with the presumption that, unless proven otherwise, lawyers will behave in an ethical manner.") Here, plaintiff has wholly failed to rebut this presumption with respect to the introduction at the arbitration of the 2001 revised version of General Order 3.
Moreover, the court also notes that plaintiff has not shown that he was harmed by the introduction of the General Order or that its introduction injured the integrity of the arbitration proceeding. Smith, Smith Kring, 60 Cal. App. 4th at 579 (the moving party must convincingly demonstrate detriment to the party requesting recusal or injury to the integrity of the judicial process to warrant disqualification of counsel). Plaintiff's assertion that the arbitrator was misled by counsel is specious. Plaintiff has made no showing that Scheidt, or any of the defendants for that matter, misled the arbitrator concerning General Order 3 and its various revisions. This issue was expressly addressed by the parties at the arbitration; Siemens was cross-examined by plaintiff's counsel on the issue, and the arbitrator invited the parties to brief the "difference in wording" of the 1997 and 2001 versions of General Order 3.
On that latter issue, as set forth above, defendants proffer evidence in support of their position that the two disciplinary policies (1997 and 2001) made no material difference in plaintiff's termination. (Siemens Decl. ¶ s 10-19.) Siemens attests that plaintiff would have been terminated under either version of General Order 3. More importantly, plaintiff's arguments in support of disqualification ignore the fact that plaintiff was independently terminated pursuant to the separate Departmental Directive, which was also expressly quoted in the Notice of Termination as the basis for all six charges, and plaintiff admits he received that Directive. (Id.) Thus, plaintiff's claim of fraudulent backdating of the policy dated 2001 is alternatively unavailing because plaintiff submits no evidence that the variation in policy wording between the 1997 and 2001 policies (to the small extent there are such differences) had any fundamental effect on the charges asserted against him as the bases for his termination.
In his reply, seemingly realizing that he cannot refute defendants' evidence that Siemens did not create a backdated and fraudulent General Order 3 (indeed, plaintiff offers no response whatsoever to Menz' declaration), plaintiff instead argues at length about whether the 2001 General Order 3 was properly implemented by defendants so as to serve as a valid basis for plaintiff's termination. However, that issue is not before the court on this motion to recuse, and nothing stated herein is meant to reflect this court's decision on the substantive merits of the issues presented in this case. Rather, the focus of this motion is limited — whether plaintiff has demonstrated that Scheidt committed professional misconduct warranting disqualification and/or whether Scheidt is a necessary witness to this action.
2. Green Interview
Plaintiff asserts that Scheidt's failure to inform him of Scheidt's interview of Green and failure to produce an alleged audiotape of the interview prior to the arbitration violated POPBRA, Cal. Gov't Code § 3303. Said statute provides certain procedural guarantees to: "any public safety officer [that] is under investigation and subject to interrogation. . . ." Thus, the statute simply does not apply to Scheidt's interview of Green as neither Green nor plaintiff were "under investigation" at the time.
As set forth above, Scheidt disputes, among other facts alleged in Green's declaration, that he tape recorded Green's interview. The court need not resolve these factual disputes because even assuming as true the facts as described by Green, Scheidt did not commit any misconduct.
As to Green, Scheidt did not interview him in connection with any investigation of which Green was the subject. (Scheidt Decl., ¶ 12.) Green does not allege otherwise in his declaration. (Green Decl., filed June 20, 2007.) Rather, Green was interviewed because he had been subpoenaed by plaintiff to testify on plaintiff's behalf at the arbitration. (Scheidt Decl., ¶ 7.) Therefore, because Green was not under investigation, he was not entitled to any procedures under Section 3303 with regard to his interview with Scheidt.
Furthermore, there was no pending, punitive action against plaintiff at the time of Green's interview in mid-2005 since plaintiff had already been terminated as of November 2, 2004. (Pl.'s Decl, ¶ 18.) Thus, while, in one sense, plaintiff was the "subject" of the arbitration, in that it considered the propriety of his termination, plaintiff was not "under investigation" at the time of the arbitration since his employment had been terminated long before. Accordingly, plaintiff was not entitled to any procedures pursuant to Section 3303 in connection with Scheidt's interview of Green.
Plaintiff's citation in his reply to Wellpoint Health Networks, Inc. v. Sup. Ct., 59 Cal. App. 4th 110 (1997) to argue that Scheidt's communications with Green are not protected by the attorney-client and/or work product privileges, is not persuasive. Wellpoint considered whether an attorney's communications with an employee while investigating the employee's Title VII complaints are privileged; the court found that when the attorney acts as a factual investigator, as opposed to a legal advisor, his communications are not privileged. Id. at 127. Thus, Wellpoint is inapposite here; Scheidt's interview of Green was not part of an investigation into any employee's allegations (including plaintiff's), Title VII or otherwise. Rather, Scheidt conducted Green's interview as part of his duties as attorney for defendants, to prepare for the arbitration proceeding in which plaintiff indicated his intent to call Green as a witness.
Moreover, like plaintiff's argument with respect to General Order 3, plaintiff's argument regarding the Green interview is alternatively unavailing because plaintiff has not shown that he was harmed by Scheidt's failure to disclose his interview of Green. Plaintiff's counsel did not call Green to testify at the arbitration. (Scheidt Decl., ¶ 11.) However, plaintiff testified on direct examination as to what Green told him regarding Siemens' alleged personal use of a City vehicle. Thus, plaintiff was permitted to offer Green's allegedly favorable testimony and cannot now assert an injury to his interests. B. Scheidt Is Not a Necessary Witness to this Case
In fact, Siemens' personal use of a City vehicle was not in dispute. Siemens did not deny the use as his Employment Agreement with the City expressly allowed it. (Siemens Decl., ¶ 25, Ex. L at 2, para. 3B(3) [permitting use of a City vehicle up to 120 miles outside the City of Rocklin's city limits].) Moreover, the issue was inconsequential to the arbitration as Siemens' conduct had nothing to do with the charges against plaintiff.
For similar reasons to those stated above demonstrating that Scheidt did not commit professional misconduct, plaintiff has also not demonstrated that Scheidt is a necessary witness to this action. Smith, Smith Kring, 60 Cal. App. 4th at 581. Scheidt is not a percipient witness to the creation, dating or contents of the successive versions of the Department's disciplinary policies. Any information he has concerning these facts are protected by the attorney-client privilege. Similarly, any information he derived from Green is protected by the work product privilege. As demonstrated by the various declarations submitted on the motion, the relevant percipient witnesses to these matters are Siemens, Miller, Ruden and Green. Nothing prevents plaintiff from seeking discovery from these persons. Plaintiff may not, however, seek such discovery from Scheidt, as any information he possesses is privileged and other means exist to obtain the desired information. Doubleday, 149 F.R.D. at 613-14. C. Scheidt's Clients' Consent to His Continued Representation is an Alternative Reason to Deny the Motion
Thus, plaintiff's alternative request for an order permitting Scheidt's deposition, regardless of the outcome on the motion to recuse, is DENIED.
Plaintiff ignores in his reply the fact that defendants consent to Scheidt's continued representation regardless of his alleged status as a witness in this case. Thus, even were this court to have found Scheidt a necessary witness to this action, defendants agree to his continued representation and request the court not order his disqualification, arguing any such disqualification would impose an undue burden on them in light of Scheidt's extensive work on the case and history representing defendants. (Siemens Decl., ¶ 26.) Plaintiff's reliance on Comden v. Sup. Ct., 20 Cal. 3d 906, 915-16 (1978) (disqualifying an attorney solely on the basis that the attorney was a potential witness at trial) is inapposite as at that time (1978), the California Rules of Professional Conduct did not contain a client consent provision. Now, pursuant to Rule 5-210(C), a client can consent to his counsel serving as both witness and advocate. Defendants have provided such consent in this case, and thus, the court could alternatively deny the instant motion even if plaintiff could prove it is necessary for Scheidt to testify (although, for the reasons set forth above, plaintiff cannot do so).
Said Rule provides: "A member shall not act as an advocate before a jury which will hear testimony from the member unless: . . . or (C) The member has the informed, written consent of the client."
CONCLUSION
For the foregoing reasons, plaintiff's motion to recuse defendants' counsel is DENIED.
IT IS SO ORDERED.