Opinion
Nos. 02-CV-6021L, 02-CV-6212L.
September 7, 2004
DECISION AND ORDER
Plaintiffs in these two employment discrimination actions, David M. Wieme and Michael Boyink, appeal from a Decision and Order in which Magistrate Judge Jonathan W. Feldman granted defendant Eastman Kodak Co.'s ("Kodak") motion to disqualify the law firm of Dolin, Thomas and Solomon ("DTS") from representing plaintiffs in these actions, and denied plaintiffs' cross-motions to compel discovery. While, for purposes of this Decision and Order, familiarity with Magistrate Judge Feldman's decision is assumed, the basis for his decision, in short, is that several of plaintiffs' attorneys from DTS-J. Nelson Thomas, Patrick J. Solomon, and Christian D. Hancey — were formerly employed at Nixon Peabody LLP ("Nixon"), where they represented Kodak in other employment discrimination litigation. For the reasons that follow, Magistrate Judge Feldman's decision disqualifying DTS is reversed.
During Thomas's and Solomon's employment at Nixon, Nixon was known as Nixon, Hargrave, Devans Doyle.
DISCUSSION
I. Standard of Review
On appeal from a ruling of a magistrate judge on a pretrial non-dispositive matter, a district court shall "modify or set aside any portion of the magistrate's order found to be clearly erroneous or contrary to law." Fed.R.Civ.P. 72(a); see also 28 U.S.C. § 636(b)(1)(A) ("A judge of the court may reconsider any [non-dispositive] pretrial matter . . . where it has been shown that the magistrate's order is clearly erroneous or contrary to law"). The Supreme Court has stated that a finding is "clearly erroneous" when, "although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." United States v. United States Gypsum Co., 333 U.S. 364, 394 (1948); Champion Home Builders Co. v. ADT Sec. Services, Inc., 179 F.Supp.2d 16, 29 (N.D.N.Y. 2001). On appeal from a magistrate judge's decision on a motion to disqualify counsel, then, the district judge "is not empowered simply to substitute its judgment for that of a magistrate judge," Ab v. Kamyr, Inc., No. 91-CV-0453, 1991 WL 246465, at *1 (N.D.N.Y. Nov. 20, 1991), but should reverse only if the magistrate judge's decision was clearly erroneous. See, e.g., Weeks Stevedoring Co., Inc. v. Raymond Int'l Builders, Inc., 174 F.R.D. 301, 303 (S.D.N.Y. 1997) ("Motions for disqualification of counsel are non-dispositive and are thus subject to the more deferential standard under Rule 72(a)"); United States v. Archeval-Vega, 883 F.Supp. 904, 906 (W.D.N.Y. 1994) (reviewing magistrate judge's decision to disqualify counsel under clearly-erroneous standard); Chichilnisky v. Trustees of Columbia Univ., No. 91 Civ. 4617, 1993 WL 403972, at *9 (S.D.N.Y. Oct. 7, 1993) (applying clearly-erroneous standard to review of magistrate judge's denial of motion for disqualification).
II. Disqualification Motions — General Standards
Whether to grant a motion to disqualify is committed to the discretion of the court. See, e.g., Cheng v. GAF Corp., 631 F.2d 1052, 1055 (2d Cir. 1980), vacated on other grounds, 450 U.S. 903 (1981); Hull v. Celanese Corp., 513 F.2d 568, 571 (2d Cir. 1975); Marshall v. State of New York Div. of State Police, 952 F.Supp. 103, 106 (N.D.N.Y. 1997). Such motions are generally viewed with disfavor, Felix v. Balkin, 49 F.Supp.2d 260, 267 (S.D.N.Y. 1999), and parties moving for disqualification carry a "heavy burden" and must satisfy "a high standard of proof." Evans v. Artek Sys. Corp., 715 F.2d 788, 794 (2d Cir. 1983). 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 New York v. Nyquist, 590 F.2d 1241, 1246 (2d Cir. 1979).
At the same time, however, the Second Circuit has instructed that if there are doubts about the matter, those doubts should be resolved in favor of disqualification. Cheng v. GAF Corp., 631 F.2d 1052, 1059 (2d Cir. 1980), vacated on other grounds, 450 U.S. 903 (1981); Hull v. Celanese Corp., 513 F.2d 568, 571 (2d Cir. 1975); see also Red Ball Interior Demolition Corp. v. Palmadessa, 908 F.Supp. 1226, 1239 (S.D.N.Y. 1995) ("because of the importance assigned to the observance of an attorney's ethical obligations, once a probable conflict is demonstrated, a court should resolve any doubts in favor of disqualification"). This approach strikes a balance between being "solicitous of a client's right freely to choose his counsel," and protecting the "need to maintain the highest standards of the profession" and the "integrity of the adversary process." Evans, 715 F.2d at 792; Government of India v. Cook Industries, Inc., 569 F.2d 737, 739 (2d Cir. 1978).
As stated, the basis for the disqualification motions here is that plaintiff's counsel previously represented defendant Kodak in other employment matters. In such circumstances, the Second Circuit has established a test to determine such motions. A court may disqualify an attorney upon motion by a party if:
(1) the moving party is a former client of the adverse party's counsel; (2) there is a substantial relationship between the subject matter of the attorney's prior representation of the moving party and the issues in the present lawsuit; and (3) the attorney whose disqualification is sought had access to, or was likely to have had access to, relevant privileged information in the course of his prior representation of the client.Evans, 715 F.2d at 791 (2d Cir. 1983).
With respect to the "substantial relationship" prong, disqualification should be ordered "only upon a showing that the relationship between the issues in the prior and present cases is `patently clear.'" Government of India, 569 F.2d at 739-40 (2d Cir. 1978). "[D]isqualification has been granted or approved . . . only when the issues involved have been `identical' or `essentially the same.'" Id. "[D]isqualification will ordinarily be required whenever the subject matter of the suit is sufficiently related to the scope of the matters on which [the] firm represent[ed] [the former client so] as to create a realistic risk . . . that unfair advantage will be taken of the [former client]." Glueck v. Jonathan Logan, Inc., 653 F.2d 746, 749 (2d Cir. 1981); see also Bennett Silvershein Associates v. Furman, 776 F.Supp. 800, 804 (S.D.N.Y. 1991) ("an earlier consultation [is] sufficiently related to a later case to warrant disqualification [if] the information the client disclosed in that earlier consultation is useful in the later case" and "[i]nformation can be useful even if the two matters are not identical").
A finding by the court that there is a substantial relationship between the two representations creates a rebuttable presumption that the former client imparted to counsel confidential information relevant to the present suit. Arifi v. deTransport du Cocher, Inc., 290 F.Supp.2d 344, 350 (E.D.N.Y. 2003); UCAR Int'l, Inc. v. Union Carbide Corp., No. 00 CIV. 13382002, 2002 WL 31519616, at *4 (S.D.N.Y. Nov. 8, 2002). See, e.g., Cheng, 631 F.2d at 1056; see also Schwed v. General Elec. Co., 990 F.Supp. 113, 116 (N.D.N.Y. 1998) ("The attorney need not have actually obtained confidential information; it is sufficient if the attorney might reasonably have acquired information related to the subsequent representation"). Courts have held that knowledge of the former client's litigation strategy in cases of the type being litigated in the present suit can constitute such information. See, e.g., Young v. Central Square Cent. School Dist., 213 F.Supp.2d 202, 218 (N.D.N.Y. 2002); Colorpix Systems of America v. Broan Mfg. Co., Inc., 131 F.Supp.2d 331, 339 (D.Conn. 2001) (noting that defendant corporations, "through their shared legal department, have developed a uniform strategy and approach to defending" cases of the type presented). "Thus, where `it can reasonably be said that in the course of the former representation the attorney might have acquired information related to the subject matter of his subsequent representation,' it is the court's duty to order the attorney disqualified." Emle Indus., Inc. v. Patentex, Inc., 478 F.2d 562, 571 (2d Cir. 1973) (quoting T.C. Theatre Corp. v. Warner Bros. Pictures, 113 F.Supp. 265, 269 (S.D.N.Y. 1953)).
III. Whether Disqualification Is Warranted in these Cases
In the cases at bar, the magistrate judge based his decision to disqualify plaintiffs' counsel on the fact that they had previously represented Kodak in other employment discrimination litigation. In particular, the magistrate judge noted that Nixon's billing records showed that "Solomon billed over 1,200 hours and Thomas almost twice that amount in representing Kodak in employment matters," and that "Solomon's work on behalf of Kodak included 15 different discrimination cases and Thomas billed time to at least 8 different discrimination cases." 2003 WL 23163157, at *1. The magistrate judge recognized that none of those cases involved reverse race discrimination or a claim alleging a failure to accommodate a disability (the types of claims presented in these two cases), id., and that "no common witnesses or decision makers have been identified between the prior cases and the present matters," id. at *2. He concluded, though, that while these "case[s] present a very close question," id. at *5, the evidence of counsel's past work on Kodak-related matters was substantial enough to warrant disqualification.
The magistrate judge did not address Hancey's past employment at Nixon, and it appears that the parties themselves focused more on Thomas and Solomon. The record indicates that Hancey billed roughly 1300 hours to Kodak-related matters while he was an associate at Nixon, but that only about 6 of those hours related to employment discrimination cases. Shinaman Aff. (Docket #11) ¶ 17.
After considering the matter, however, I believe that defendant has failed to meet the "high standard of proof" required to show that plaintiffs' counsel should be disqualified. Evans, 715 F.2d at 794. Although it is undisputed that counsel did work at Nixon on some discrimination cases against Kodak several years ago, there is no showing that those cases involved any issues that are "identical" or "essentially the same" as those presented here. Government of India, 569 F.2d at 739-40; see Rodriguez v. City of New Haven, 214 F.R.D. 66, 69 (D.Conn. 2003) ("It is clear that the underlying facts of the previous case are wholly unrelated to the facts giving rise to the present case"). In addition, there is no basis upon which to conclude that counsel had or was likely to have had access to relevant privileged information in the course of their prior representation of Kodak. In fact, there is no proof that such "information" even existed.
It is true that plaintiffs' counsel's prior work at Nixon included work on cases involving Kodak, and that some of those cases dealt with employment discrimination claims. But, that fact is not dispositive. "Merely pointing to a superficial resemblance between the present and prior representations will not substitute for the careful comparison demanded by [the Second Circuit's] cases." Duncan v. Merrill Lynch, Pierce, Fenner Smith, 646 F.2d 1020, 1029 (2d Cir.) (finding that although "there [we]re important similarities between the subject matters of [a prior case] and the present suit," defendant had not met its burden of proving a substantial relationship), cert. denied, 454 U.S. 895 (1981). Again, there must be a showing that the current and former representations involved virtually identical issues, or that there is a genuine risk that the attorney may be able to take unfair advantage of his former client by virtue of the prior representation. Such a showing is lacking here.
There is no evidence, or even allegation, that the cases at bar and those that plaintiffs' counsel previously worked on for Kodak involved any of the same decisionmakers or employees, or that any policy or practice of Kodak is common to the current and prior cases. Kodak is a large international corporation, and it would be unreasonable to assume that alleged discrimination occurring anywhere, at anytime, within Kodak is relevant to a given discrimination action. See Briggs v. Aldi, Inc. (Kansas), 218 F.Supp.2d 1260, 1268 (D.Kan. 2002) (defendant failed to show that plaintiff's race discrimination case against her employer was substantially related to prior sex discrimination case in which he represented same employer; "There is no indication in the record that the cases involve the same decisionmakers, the same witnesses or the same documents"); Chichinlnisky v. Trustees of Columbia Univ. in City of New York, No. 91 Civ. 4617, 1993 WL 403972, at *5-*6 (S.D.N.Y. Oct. 7, 1993) (case in which female professor alleged denial of equal pay as compared to similarly situated male professors, and retaliatory negative evaluations, was not substantially related to prior cases against university involving, inter alia: equal-pay claims by female "light cleaners"; sex discrimination in hiring; sex discrimination charge alleging wrongful failure to give a merit pay increase, failure to promote, and retaliatory termination; and other claims); cf. Schwed v. General Elec. Co., 990 F.Supp. 113, 116 (N.D.N.Y. 1998) (substantial relationship found where, inter alia, the central issue in both current and prior cases was age discrimination resulting from application of the same corporate layoff policy).
Illustrative of defendant's broad characterizations of the two cases at bar as "similar" to the Kodak cases that plaintiffs' counsel worked on while at Nixon is defendant's assertion that counsel's representation of Kodak in one case, Saltos v. Eastman Kodak Co., No. 99-CV-6375, is "[o]f particular significance" because the facts of Saltos were "strikingly similar" to the cases at bar, and the issues presented were "essentially the same, if not identical," to those here. Defendant's Memorandum of Law ( Wieme Docket #35) at 4; Defendant's Memorandum of Law ( Boyink Docket #31) at 8; Defendant's Memorandum of Law ( Wieme Docket #57) at 8.
A review of Judge Siragusa's summary judgment decision in Saltos (Docket #41), however, reveals significant differences between that case and the two cases at bar. The plaintiff is Saltos was a Hispanic female who had been terminated in 1993 after she allegedly threatened a white coworker with a utility knife. The plaintiff alleged that the real reason for her termination was discrimination on account of her race or ethnicity.
In contrast, the plaintiff in Boyink alleges that he was terminated in 2000 because of his physical disability (in layman's terms, a bad back), and in retaliation for having taken leave protected under the Family and Medical Leave Act. He alleges that Kodak's proffered (and allegedly pretextual) reason for terminating him was that he had entered a password into a forklift computer under circumstances that inadvertently allowed a coworker to view the password. Complaint ¶¶ 27, 28. None of the same supervisors or coworkers appear to have had any involvement in the relevant events as the people involved in Saltos. These cases, in fact, appear to be markedly dissimilar.
Nor is Wieme any more similar to Saltos. The plaintiff in Wieme is a white male who alleges that he was terminated in 2001 as a result of "reverse" discrimination pursuant to a "Zero Tolerance Policy" that on its face was intended to stamp out racism at Kodak. See Amended Complaint (Docket #27 Ex. A). Again, none of the same decisionmakers appear to be involved as those in Saltos.
Ignoring these differences, defendant blithely asserts that the instant cases are "strikingly similar" to Saltos, simply because they all involve some form of discrimination at Kodak. That fails to comport with the Second Circuit's directive that disqualification motions should not be granted unless a close review of the past and present representations reveals that the issues presented are truly identical or essentially the same. If it were as easy to obtain disqualification of opposing counsel as defendant suggests, such motions would be routinely granted, which a review of the case law reveals that they are not. As stated, such motions are generally looked upon with disfavor.
The other prior cases relied upon by defendant (the complaints in some of which are attached as exhibits to the affidavit of defendant's attorney, Boyink Docket #11), are also not substantially similar to the cases before me. Although some of the cases may share some surface similarities to Wieme or Boyink, such as allegations of race discrimination, or disability discrimination by plaintiffs with back problems, they involve employees working in different departments, at different times, under different supervisors, than those in Wieme or Boyink. Those are precisely the kind of "superficial resemblance[s]" that the Second Circuit has cautioned is not enough to warrant disqualification. Duncan, 646 F.2d at 1029.
Aside from the lack of substantial similarity between the issues presented, I also find that there is insufficient evidence that plaintiffs' counsel would likely have obtained relevant privileged information in the course of the prior representations that they could now use to Kodak's disadvantage. Defendant argues, in effect, that through their prior work for Kodak, plaintiff's counsel "must" have become privy to unspecified confidential information, and to Kodak's litigation and settlement strategies. They have not identified any work that counsel did in the prior cases, however, that would reasonably lead to such a conclusion. Furthermore, there is no proof that there was any such confidential or privileged material or general trial strategy affecting discrimination cases generally.
Although it is true that, if the "substantial similarity" test has been met, a rebuttable presumption is created that the attorney obtained relevant privileged information during the course of the prior representation, I have found that there is no substantial similarity between the current and prior representations. Under these circumstances, no such presumption arises. See Rosewood Apartments Corp. v. Perpignano, No. 99 Civ. 4226, 2000 WL 145982, at *7 (S.D.N.Y. Feb. 7, 2000) ("If the two cases are not so intimately related, however, the court in effect declines to indulge such an assumption [that counsel obtained relevant confidential information during prior representation], and, accordingly, . . . disqualification would be inappropriate").
In order to show a risk that counsel would have obtained relevant confidential information, then, defendants would have to show more than the bare fact that counsel represented defendant in the broad areas of discrimination or disability law. Kodak has not done so. Instead, defendant relies upon generalities about what plaintiff's counsel "must" have learned in their prior representation of Kodak. To accept such an argument, however, would run counter to the Second Circuit's admonition that courts should avoid "paint[ing] with broad strokes" in this area, Nyquist, 590 F.2d at 1246 (quoting Fund of Funds, Ltd. v. Arthur Anderson Co., 567 F.2d 225, 227 (2d Cir. 1977)). I conclude, therefore, that defendant has failed to show that there is a genuine risk that relevant confidential information was disclosed to plaintiffs' counsel. See Etna Products Co., Inc. v. Tactica Int'l, Inc., 234 F.Supp.2d 442, 445 (S.D.N.Y. 2002) ("Defendants have not persuaded this Court that there is a meaningful risk that [plaintiff's attorneys] possess any privileged or confidential information concerning defendants [obtained during course of prior representation of defendants], much less, given the lack of relationship between the subject matters of this and the prior representations, that they would be in a position to use it against defendants even if they did").
Additionally, there has been no showing that whatever knowledge, if any, that counsel may have obtained concerning Kodak's litigation posture or strategies in those prior cases has any bearing on the cases at bar. A similar argument was addressed and persuasively rejected in Vestron, Inc. v. National Geographic Society, 750 F.Supp. 586 (S.D.N.Y. 1990), where the defendant moved to disqualify a law firm from representing plaintiff because the firm had received "sensitive and confidential information concerning . . . National Geographic's approach to and strategy in litigation matters. . . ." Id. at 595. The Vestron court held that an understanding of "general litigation thinking" cannot form the basis for a disqualification motion. Id. I agree. See also Matthews v. LeBoeuf, Lamb, Greene MacRae, 902 F.Supp. 26, 31 (S.D.N.Y. 1995) (stating that "I do not understand how [counsel's] participation in settlement negotiations for two or three LeBoeuf matters unrelated to this action could have given her any information relevant to this action"). Again, the question is whether there is a "realistic risk . . . that unfair advantage will be taken" of Kodak because of counsel's possession of confidential information. Glueck, 653 F.2d at 749. It is difficult to imagine how such a risk could exist simply because plaintiffs' counsel did some prior work for Kodak in the general area of discrimination and disability law.
Finally, I note that it also appears that the prior representations at issue here were completed years before the relevant events in this action occurred. Although temporal distance alone may not suffice to defeat a motion to disqualify, certainly it has some bearing on whether counsel was likely to have obtained relevant confidential information during the course of the prior representation that affects current litigation. Obviously, as time goes by, relevant decisionmakers will leave the company or be transferred to other areas or positions; company attitudes and policies toward litigation and settlement may also change. Particularly since there is no substantial relationship between the issues in these suits and those in the prior litigation, this fact also weighs against disqualification.
My decision in these cases renders it unnecessary for me to consider plaintiffs' argument that the magistrate judge erred in denying plaintiffs' cross-motions to compel discovery relating to plaintiffs' counsel's prior representation of Kodak while they were at Nixon.
CONCLUSION
The Decision and Order of Magistrate Judge Jonathan W. Feldman entered on September 22, 2003 (Docket #50 in Wieme v. Eastman Kodak Co., and Docket #27 in Boyink v. Eastman Kodak Co.), is reversed. Defendant's motions to disqualify plaintiff's counsel (Docket #33 in Wieme and Docket #9 in Boyink) are denied.IT IS SO ORDERED.