United States District Court, D. Maine
ORDER ON PLAINTIFF’S MOTION TO DISQUALIFY DEFENSE COUNSEL (ECF NO. 234)
John C. Nivison U.S. Magistrate Judge.
The matter is before the Court on Plaintiff’s renewed request that the Court disqualify defense counsel, Peter Marchesi and Cassandra Shaffer. Plaintiff contends that disqualification is warranted because counsel trained Defendants on the use of force, and because counsel tampered with evidence regarding four DVDs that contained video footage. (ECF No. 234.)
As explained below, following a review of Plaintiff’s motion and after consideration of the parties’ arguments, the Court denies the motion.
In this action, Plaintiff alleges, inter alia, that Defendants, most of whom are or were corrections officers employed at the Somerset County Jail, subjected Plaintiff to excessive force during Plaintiff’s pretrial detention in the jail. As part of his claim, Plaintiff asserts that Defendant Somerset County is legally responsible for the deprivation of his constitutional rights as the result of the County’s failure to train the individual Defendants on the use of force.
On May 21, 2015, the Court denied Plaintiff’s motion to remove defense counsel. (ECF No. 226.) Plaintiff’s renewed request, captioned as a supplemental memorandum, is in effect a motion for reconsideration. The relevant facts follow.
In the past, using a lecture format with a Power Point presentation, counsel have trained some or all of the Defendants. Through discovery, counsel have provided to Plaintiff a collection of slides used in the Power Point presentation. The information reflects that counsel trained Defendants on liability prevention, the difference between Defendants’ obligations to pretrial detainees and their obligations to convicted inmates, and the need for a corrections officer to maintain emotional control when interacting with inmates. (See PageID # 1518.)
In addition, according to Plaintiff, four of the DVDs produced to him in discovery, which DVDs contained “the most violent videos of cell extractions” ever supplied to Plaintiff through discovery, “were never intended to be given to the Plaintiff.” (PageID # 1525.) In support of this argument, Plaintiff cites that the four DVDs, unlike the other DVDs disclosed in discovery, were not Bates stamped. (Id.) Plaintiff contends that because other video recordings of “worse” treatment have never surfaced and because the four DVDs were not stamped, counsel and Defendants have suppressed discoverable evidence. (Id.) Plaintiff plans to call counsel as witnesses in this action to address training and to establish a record to support his contention that Defendants engaged in evidence suppression and tampering.
Defendants argue that testimony from counsel is not necessary, that the nature and content of any training can be established through other witnesses and evidence, and that disqualification at this date would impose a hardship on Defendants. (Objection to Plaintiff’s Second Motion for Removal of Defense Counsel Wheeler & Arey, P.A. at 2 – 3, 4, ECF No. 240.) As to Plaintiff’s allegation of evidence tampering, Defendants assert that whether a document has a Bates stamp is immaterial, and that Defendants produced the DVDs when Plaintiff requested them in discovery in this case. (Id. at 3 – 4.) Defendants alternatively request that in the event the Court views Plaintiff’s request favorably, the Court permit counsel to remain on the case through summary judgment. (Id. at 4, citing Culebras Enter. Corp. v. Rivera–Rios, 846 F.2d 94, 101 (1st Cir. 1988)).
Disqualification of counsel by court order “is almost never cut-and-dried.” In re Bushkin Assocs., Inc., 864 F.2d 241, 246 (1st Cir. 1989). The district court has “wide discretion” and the determination “ordinarily turns on the peculiar factual situation of the case then at hand.” Id. (quoting Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 377 (1981)). Various circumstances may give rise to a need to consider disqualification motions. By way of example, the First Circuit has observed:
It may be necessary, for instance, to assess the degree to which a lawyer’s presence might taint the trial; the court’s need to protect the integrity of the judicial process, enforce its rules against transgressors, and maintain public confidence in the legal profession; the litigants’ interest in retaining counsel of their choosing; and the availability and relative efficiency of other sanctions.
Id. A particular concern arises when a party intends to call counsel as a witness at trial.
The principal ethical considerations to a lawyer testifying on behalf of his client regarding contested issues are that the client’s case will “be presented through the testimony of an obviously interested witness who is subject to impeachment on that account; and that the advocate is, in ...