Wieme v. Eastman Kodak Company, 02-CV-6021L (W.D.N.Y. 9/30/2003)
| Decision Date | 30 September 2003 |
| Docket Number | 02-CV-6212.,02-CV-6021L. |
| Parties | DAVID M. WIEME, Plaintiff, v. EASTMAN KODAK COMPANY; DANIEL CARP; CHARLES BROWN; ROBERT BERMAN; SHARON ELLIOTT PAULA ALEXANDER, Defendants; MICHAEL BOYINK, Plaintiff, v. EASTMAN KODAK COMPANY Defendant. |
| Court | U.S. District Court — Western District of New York |
Pending before the Court are motions in the above-captioned cases for the disqualification of plaintiff's counsel. (Docket #33, Wieme; Docket #9, Boyink).1 In response to the motions to disqualify, plaintiffs David M. Wieme ("Wieme") and Michael J. Boyink ("Boyink") have asserted cross-motions to compel discovery responses. (Docket #39 Wieme; Docket #13, Boyink).
By Order of Chief Judge David G. Larimer in the Wieme case (Docket #32) and by Order of Judge Charles J. Siragusa in the Boyink matter (Docket #4), all non-dispositive motions have been referred to me pursuant to 28 U.S.C. § 636 (b)(1)(A)-(B).
The law firm of Dolin, Thomas and Solomon (hereinafter "DTS") represents Boyink and Wieme in separate employment discrimination actions they filed against Eastman Kodak (hereinafter "Kodak"). Boyink claims that he was terminated from Kodak on the basis of his disability and that the reason given by Kodak for his termination (violating company disciplinary rules) was pretextual. Wieme claims that he was demoted as a result of reverse race discrimination and that he was treated more harshly than similarly situated African-Americans.
The primary issue presented here is whether attorneys Nelson Thomas ("Thomas") and Patrick Solomon ("Solomon"), two partners of the DTS firm, should be able to represent plaintiffs in these lawsuits based on the fact that both of them formerly represented Kodak in employment discrimination litigation. Indeed, both Thomas and Solomon were formerly employed by the law firm Nixon Peabody,2 a firm which defends Kodak in most of its employment litigation in Rochester. Up until late 2000, Thomas and Solomon were associates in Nixon Peabody's Labor and Employment practice group. In November 2000, Thomas and Soloman left Nixon Peabody to create DTS and have developed a very active practice representing plaintiffs in employment related litigation.
While at Nixon Peabody, Thomas and Solomon defended Kodak on a significant number of single-plaintiff employment discrimination cases. According to Nixon Peabody billing records, Solomon billed over 1,200 hours and Thomas almost twice that amount in representing Kodak in employment matters. (Shinaman Aff. ¶ 5, 14). Solomon's work on behalf of Kodak included 15 different discrimination cases and Thomas billed time to at least 8 different discrimination cases. (Shinaman Aff. ¶ 6, 15). While some of the cases involved minimal billable hours, Thomas and Solomon both defended Kodak in several cases involving substantial time. (Id.)
On the other hand, of the cases that Solomon and Thomas handled or were involved with, none involved reverse race discrimination or a failure to accommodate a disability claim. However, the cases did involve single plaintiffs making allegations of employment discrimination against Kodak, including claims of race discrimination, disability discrimination and at least one case involving a termination pursuant to Kodak's disciplinary rule policies.
Kodak claims that these prior cases encompass common policies and bear factual similarities to the two cases at issue here. Thomas and Solomon counter with the argument neither the Wieme nor the Boyink case were being handled by Nixon Peabody while they were employed there and thus they could not have obtained any knowledge specific to Wieme or Boyink. Moreover, no common witnesses or decision makers have been identified between the prior cases and the present matters. Kodak maintains that similar Kodak departments were involved in the cases, including the medical and security departments, and that more overlap may ultimately become evident as the case develops. Finally, Thomas and Solomon aver that they never advised Kodak about its employment policies or helped draft or review such policies and Kodak has presented no evidence to refute that allegation.
After Kodak moved to disqualify DTS in both cases, DTS cross-moved to compel discovery responses which directly relate to representation of Kodak that Thomas and Solomon had while at Nixon.3 For the following reasons, Kodak's motions to disqualify are hereby granted and the motions to compel are denied.
This case pays tribute to the fact that while the legal principles to be applied in determining disqualification motions are generally straightforward and easily stated, application of those principles to a particular case is often difficult and complicated. An easy litmus test is not evident on disqualification motions, forcing courts to grapple with these disputes on a very fact specific basis. Indeed, more often than not, there are facts which both sides can legitimately point to as supporting their positions. Reconciling those facts with the law often results in close calls. This case is no exception.
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). This approach strikes a balance between recognizing the client's right to counsel of choice, and protecting the "need to maintain the highest standards of the profession" and the "integrity of the adversary process." Sauer, 85 F. Supp.2d at 200 ().
The disqualification motion here requires the Court to apply and interpret Disciplinary Rule DR 5-108 of the Lawyer's Code of Professional Responsibility.4 Rule 5-108 provides:
Except with the consent of a former client after full disclosure a lawyer who has represented the former client in a matter shall not:
1. Thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client.
2. Use any confidences or secrets of the former client except as permitted by DR 4-101(C) or when the confidence or secret has become generally known.
N.Y. Judiciary Law App.; 22 N.Y.C.R.R. § 1200.27. (emphasis added).5
The so-called "substantial relationship test" examines the relationship between the issues involved in the attorney's prior representation of the moving party and the issues involved in the present lawsuit to determine the likelihood of dissemination of client confidences. Here, both sides agree that the critical issue is whether there is a "substantial relationship" between the work that Thomas and Solomon did for Kodak while at Nixon Peabody and the work that they seek to do now on behalf of Wieme and Boyink. In the Second Circuit, the "substantial relationship test" has three elements. Disqualification is necessary only when (1) the party seeking disqualification is a former client of the adverse party's attorney, (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. United States v. DiTommaso, 817 F.2d 201, 219 (2d Cir. 1987); Schwed v. General Elec. Co., 990 F. Supp. 113, 115 (N.D.N.Y. 1998); Hammond v. Goodyear Tire & Rubber Co., 933 F. Supp. 197, 199-200 (N.D.N.Y. 1996). It is important to note that once the first two prongs of this test are met, the third prong is presumed satisfied. Arons v. Lalime, 1998 WL 912034 at *5 (W.D.N.Y. October 8, 1998) (); Kempner v. Oppenheimer & Co., Inc., 662 F. Supp. 1271, 1277 (S.D.N.Y. 1987).
In determining whether there is a substantial relationship between the prior representation and the current representation, the Second Circuit has cautioned that disqualification will be required only when the subject matter of the present litigation "is sufficiently related to the scope of the matters" involved in the former representation so as "to create a realistic risk . . . that unfair advantage will be taken of the defendant." Glueck v. Jonathan Logan, Inc., 653 F.2d 746, 750 (2d Cir. 1981). See Government of India v. Cook Indus., Inc., 569 F.2d 737, 739-740 (2d Cir.) ().
Application of the particular facts of these cases to the law of "substantial relationships" results in this Court finding that Kodak's motion for disqualification should be granted. The Court has considered the following facts and circumstances.
1. The Nature of the Past Employment: Nixon Peabody is one of the larger law firms in the United...
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