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concluding that disqualified lawyer "can easily be screened since he works from a different office than the attorneys in the firm handling the case" at issue
Summary of this case from Silicon Graphics, Inc. v. ATI Technologies, Inc.Opinion
No. 03 Civ. 8558 (GBD) (AJP).
January 19, 2005
OPINION AND ORDER
Plaintiff Henry Battagliola brought this action to recover benefits from defendant, National Life Insurance Company d/b/a National Life Vermont ("NLV"), pursuant to two disability policies. (Dkt. No. 1: Notice of Removal: Compl. ¶ 3.) The law firm of Binder Binder, P.C. ("Binder") represents plaintiff Battagliola. Peter Heck, Esq. recently joined Binder after working at another firm at which Heck had represented NLV. (E.g., Dkt. No. 24: Del Mauro Aff. ¶¶ 7, 9-10.)
Presently before this Court is NLV's motion to disqualify Heck and Binder. (Dkt. No. 24: Notice of Motion.) NLV asserts that Heck's prior representations of NLV and the issues in this case are substantially related (Dkt. No. 24: NLV Br. at 12-14), that Heck had access to confidential information while previously representing NLV (id. at 6-11), and, therefore, that allowing Heck to "switch sides" is improper and would chill attorney-client relations (id. at 14-15). NLV also asserts that Heck's conflict of interest should be imputed to Binder, requiring that firm's disqualification. (Id. at 24-25.)
The Court notes that in similar cases, Judge Baer of this Court and Magistrate Judge Rosen of the District of New Jersey disqualified both Heck and the Binder firm. Lott v. Morgan Stanley Dean Witter Co., 03 Civ. 9235, 2004 WL 2980193 (S.D.N.Y. Dec. 23, 2004) (Baer, D.J.); Denisi v. CNF Transport, Inc., No. 04-CV-2379, Order (D.N.J. Dec. 8, 2004) (Rosen, M.J.).
For the reasons set forth below, NLV's disqualification motion should be GRANTED with respect to Heck but conditionally DENIED with respect to Binder.
FACTS
Until its November 1, 2004 merger into McElroy, Deutsch, Mulvaney Carpenter, LLP, the firm of Del Mauro, DiGiaimo Knepper ("DDK") was a boutique litigation firm of five to eight lawyers that represented insurance companies in direct actions brought against them by policyholders seeking disability and/or life insurance benefits. (Dkt. No. 24: Del Mauro Aff. ¶¶ 1, 3, 4.) See also Lott v. Morgan Stanley Dean Witter Co., 03 Civ. 9235, 2004 WL 2980193 at *1 (S.D.N.Y. Dec. 23, 2004).
For the period from 2002 when Heck became a partner in the firm until he left on August 16, 2004, the firm name was Del Mauro, DiGiaimo, Knepper Heck. (Del Mauro Aff. ¶¶ 7, 9.)
DDK's largest client was UnumProvident Corporation. (Del Mauro Aff. ¶ 10.) DDK represented a number of disability insurers directly or indirectly owned by UnumProvident, including NLV. (Id. ¶ 4.) When UnumProvident or one of its subsidiaries or affiliates (collectively, "Unum") was sued, DDK was retained by, and worked with, UnumProvident's in-house counsel. (Id. ¶ 5.)
NLV sells disability insurance policies of UnumProvident's subsidiaries pursuant to a "private label" agreement. (Dkt. No. 24: LoBosco Aff. at 1 n. 1.) Under that agreement, NLV's name is on the policy, and NLV is primarily responsible for marketing it, but the UnumProvident subsidiary is primarily responsible for underwriting and claims administration. (Id.)
Heck joined DDK in 1998 as an associate and became a partner in 2002. (Dkt. No. 24: Del Mauro Aff. ¶ 7.) Heck represented Unum (including NLV) in dozens of cases. (Id. ¶¶ 11, 12.) Heck left DDK effective August 16, 2004. (Id. ¶ 9.) In September 2004, he joined Binder, which is currently counsel of record for plaintiffs in at least thirteen lawsuits against Unum. (See Dkt. No. 24: LoBosco Aff. ¶¶ 15,19.)
Heck's Representation of Unum and NLV at DDK
At DDK, Unum was Heck's largest client. (Dkt. No. 24: Del Mauro Aff. ¶ 10.) Heck recorded more than 9,600 hours of billable time on Unum matters over the last seven years. (Id.) See also Lott v. Morgan Stanley Dean Witter Co., 03 Civ. 9235, 2004 WL 2980193 at *1 (S.D.N.Y. Dec. 23, 2004) (Baer, D.J.). From 1999 through July 2004, Heck averaged more than six billable hours a day on Unum matters, an average of more than 1,600 hours per year. (Del Mauro Aff. ¶ 11.) Between 2002 and 2004, Heck represented Unum in over forty disability cases. (Id.) DDK represented Unum in more than 350 insurance benefit cases while Heck was with the firm. (Id.)
Heck does not dispute his prior representation of Unum. (E.g., Dkt. No. 25: Heck Aff. ¶ 24: "I have not disputed my prior representation of Unum Provident subsidiaries."). However, Heck states that the substantial time that he devoted to Unum matters pertained to particular substantive issues in cases in which plaintiffs were asserting RICO and/or class action claims against Unum in particular lawsuits. (Id. ¶ 23.) According to Heck, Del Mauro was primarily responsible for contact with the client while Heck researched the law and prepared legal memoranda or associated documents filed with the Court. (Id.) Heck asserts that the information he gained from these cases is public to which no privilege would exist. (Id.)
One of the most substantial cases Heck handled during his last two years at the firm involved the representation of NLV (and First Unum Life Insurance Company) against a claim for disability insurance benefits inKortlander v. NLV. (Del Mauro Aff. ¶¶ 11, 13.) Heck was the lead attorney and he billed more than 500 hours on that case in 2003-04. (Id. ¶ 13.)See also Lott v. Morgan Stanley Dean Witter Co., 2004 WL 2980193 at *1. In defending NLV in the Kortlander action, Heck prepared Unum witnesses for and defended their depositions; engaged in settlement conferences with Unum, and settlement discussions with plaintiff; and worked closely with Unum on trial strategy and preparation. (Del Mauro Aff. ¶ 13.) See Lott v. Morgan Stanley Dean Witter Co., 2004 WL 2980193 at *1-2. Del Mauro states that in the course of working on this matter, "Heck had substantial exposure to privileged and confidential information about how NLV (through UnumProvident) determined claims, paid benefits, and evaluated the risks and settlement value of cases." (Del Mauro Aff. ¶ 13.)
In addition to the Kortlander case, while at DDK Heck worked closely with many Unum in-house lawyers "discussing overall case strategy; discussing strengths and weaknesses of cases; discussing settlement and discovery strategies; evaluating the strengths and weaknesses of witnesses; preparing witnesses for depositions and trials; sharing insights on courts and opposing counsel; and discussing how UnumProvident might best help the procedural and substantive law to evolve." (Del Mauro Aff. ¶ 15.)
Scott Maker, Unum Assistant Vice President and Senior Counsel, described the relationship with outside counsel as being "an extension of Unum Provident's legal department." (Dkt. No. 24: Maker Aff. ¶ 10.) According to Maker, Heck discussed with counsel, and/or obtained access to, confidential materials from Unum's underwriting files; detailed information about the process by which Unum physicians conducted medical reviews; Unum's case strategies and assessment of strengths and weaknesses; and Unum's views regarding ERISA issues. (Dkt. No. 24: Maker Aff. ¶¶ 3-7.)
John LoBosco, Unum Assistant Vice President and Senior Counsel, states that Heck "was privy to . . . [Unum's] strategies for opposing broad discovery requests, and for responding to allegations that the company had acted in bad faith[, and Heck] knows [which Unum employees] might make a good witness" and which might not. (Dkt. No. 24: LoBosco Aff. ¶ 7.)
Heck responds that he worked with LoBosco on three or four cases representing a UnumProvident subsidiary, but gained no confidential information concerning the generalized practices of UnumProvident. (Dkt. No. 25: Heck Aff. ¶ 33.) Heck states that LoBosco micro-manages each case and their discussions pertained to assessment of a particular case rather than "strategies" in general. (Id.) Heck states that every case on which he worked with LoBosco was governed by ERISA, which has no factual or legal relevance to the instant lawsuit. (Id.) DDK's "BCC" Distribution of Outgoing Documents To All Its Lawyers
Every lawyer at DDK had access to all documents and files in the office (Dkt. No. 24: Del Mauro Aff. ¶ 3) and Heck, while at DDK, had "unfettered access to privileged and confidential information from all of [DDK's] clients, including UnumProvident and NLV." (Id. ¶ 8.) It was DDK's practice that "all outgoing documents (including attorney communications directed to clients)" were copied and circulated daily to every lawyer in the firm ("the 'bcc' system"). (Id.) Heck, however, states that he never read these copied letters. (Dkt. No. 25: Heck Aff. ¶ 18.) Instead, according to Heck, his secretary threw them out because he had neither the time nor the reason to review them since they did not involve cases for which he was responsible. (Id.) Heck also contends that Del Mauro's use of the phrase "outgoing documents" is vague and misleading because, according to Heck, no "[b]riefs or other substantial writings" were included in DDK's bcc system. (Id. ¶ 19.)
Heck's Access to UnumProvident's Confidential Legal Extranet System
According to NLV, Heck had access to UnumProvident's "password-protected legal extranet system, in which confidential, privileged, material was regularly posted and exchanged." (Dkt. No. 24: LoBosco Aff. ¶ 6.) See also Lott v. Morgan Stanley Dean Witter Co., 03 Civ. 9235, 2004 WL 2980193 at *4 (S.D.N.Y. Dec. 23, 2004) (Baer, D.J.). In 1999, UnumProvident established this "legal extanet system" ("LES") to allow in-house counsel and outside counsel representing Unum to access and share information about legal claims and strategies. (Dkt. No. 24: Frasco Aff. ¶ 3; Dkt. No. 24: Maker Aff. ¶ 10.) All persons given access to LES are instructed and required to treat all information on it as privileged and confidential attorney-client communications and attorney work-product. (Frasco Aff. ¶ 3.) Heck was given access to LES in June 1999. (Id. ¶ 6.) Heck signed an agreement confirming his understanding of the confidentiality of the information on LES (id.), and each time he desired to log onto LES, he was required to acknowledge his understanding that the site contained "strictly confidential information which may also be legally privileged and which is intended solely for the use of person(s) authorized under express written agreement." (Id. ¶ 5.)
LES contains "a large amount of highly confidential information relevant to claims litigation in which Unum . . . [is] involved." (Id. ¶ 7.) According to NLV, the LES "contains voluminous materials concerning, and responding to, allegations of improper claims practices asserted by ex-employees, [policy-holders] and others; it contains voluminous information on claim-related issues that have been raised by various state insurance departments around the country; and it contains collections of material concerning various expert witnesses" who testified against Unum. (Id.)
"LES also has a feature which allows in-house and outside counsel to communicate with each other, in either bulletin-board format or in real time, about any aspect of [Unum's] claims or litigation." (Id. ¶ 8.) According to NLV, "[b]ecause everyone with access to LES [was] either an attorney for UnumProvident" or an employee of UnumProvident's Legal Division, these communications were "unrestricted, wide-ranging, and highly privileged." (Id.)
Heck admits his use of LES while at DDK, but says that it was "sporadic at best." (Dkt. No. 25: Heck Aff. ¶ 45.) Heck states that he does not recall utilizing LES for over one year prior to his resignation from DDK. (Id. ¶ 46.) He further states that "LES did not contain confidential information that [he] accessed or utilized." (Id.) Instead, according to Heck, LES acted as a "computer bulletin board" where in-house and outside counsel posted favorable decisions obtained in various lawsuits. (Id.) Heck points out that such "information is not confidential, but rather a matter of public record." (Id.) Heck also states that he has no memory of any information obtained on LES, let alone information that he could use against Unum in this or any other litigation. (Id. ¶ 47.)
Heck's Access to Information Shared at Outside Counsel Meetings
Approximately once a year, UnumProvident holds an outside counsel meeting. (Dkt. No. 24: Del Mauro Aff. ¶ 19.) At least one DDK attorney attended every meeting and Heck attended at least one such meeting. (Id.;see Dkt. No. 24: LoBosco Aff. ¶ 3.) See also Lott v. Morgan Stanley Dean Witter Co., 03 Civ. 9235, 2004 WL 2980193 at *3 (S.D.N.Y. Dec. 23, 2004). According to NLV, the information shared at the meetings which Heck did not attend was discussed with Heck, and the material circulated at those meetings was made available to Heck. (Del Mauro Aff. ¶ 19.)
These outside counsel meetings were working meetings, and attendance was strictly limited to Unum's outside counsel, in-house legal staff, and senior management. (Id. ¶ 20; see also LoBosco Aff. ¶ 3; Dkt. No. 24: Maker Aff. ¶ 10.) In-house and outside counsel gave presentations discussing the types of "broad-based claims being asserted against the company; what the company felt were the strengths and weaknesses and the likelihood of success of such claims; and the company's defense strategies." (Del Mauro Aff. ¶ 20.) "Senior UnumProvident management discussed the company's business plans in the context of the litigation environment; issues that concerned them; and business strategies." (Id.)
UnumProvident distributed binders containing confidential, highly privilege material to meeting attendees. (LoBosco Aff. ¶ 4.) Del Mauro asserts that Heck had two such binders in his office when he left DDK. (Del Mauro Aff. ¶ 21.) One of these binders, labeled "Confidential Attorney-Client Communication," containing "collected documents that the plaintiffs' bar was using against [Unum] in claim litigation, and it presented UnumProvident's counsel with strategies" they could use to respond to these documents. (LoBosco Aff. ¶ 4.) The introduction to this binder stated in part:
The aim of this binder is to provide the tools you need to respond to these allegations of bad faith so that you can educate judges and juries about UnumProvident's business. . . . Simply put, there is so much misinformation and defamatory propaganda aimed at UnumProvident that we view this binder as a tool for 'setting the record straight.'
(Id.)
Heck responds:
If . . . these binders contained strategies to defend against broad discovery, such tactics have been employed over the past year or two and certainly have become evident in briefings with the Court. As such, they are a matter, in substance anyway, of public record. If these binders contained such privileged information, and was still temporally relevant, counsel would have surely submitted same to the Court for an in camera inspection.
(Dkt. No. 25: Heck Aff. ¶ 30.)
Heck's Investigation of Allegations by Ex-Employees About Claim Handling
Several years ago, several ex-employees of Unum alleged that Unum made claims determinations motivated by factors other than the evidence the insured submitted. (Dkt. No. 24: Del Mauro Aff. ¶ 22.) While at DDK, Heck set out to gather as much information as he could regarding the claims these ex-employees and others were making, and regarding Unum's responses to those claims. (Id. ¶ 23.) Heck spoke to numerous Unum employees and lawyers about the allegations and Unum's defenses to them. (Id.)
Heck Joins Binder But Does No Work On This Case
Heck left DDK on August 16, 2004 (Dkt. No. 24: Del Mauro Aff. ¶ 9) to join Binder, without prior notice of his intentions to DDK or Unum. (Dkt. No. 24: LoBosco Aff. ¶¶ 15, 20.)
At a conference with this Court on October 26, 2004, just days before the discovery cutoff, Heck advised the Court that he had only started with the Binder firm in September and had "done no substantive work" on this case because he "didn't know if the disqualification motion would come or not." (Dkt. No. 27: 10/26/04 Conf. Tr. at 3.) Because there was less than a week left in discovery, the Court precluded Heck from participating in discovery. (10/26/04 Conf. Tr. at 21; see also Dkt. No. 25: Heck Aff. ¶ 2.) The Court also gave Heck the choice of participating in the summary judgment briefing, with possible negative repercussions for Battgliola and the Binder firm if Heck later were disqualified, or taking the more conservative approach of not participating in the summary judgment briefing. (10/26/04 Conf. Tr. at 21-23.) Heck decided to not participate in the summary judgment briefing. (Heck Aff. ¶ 2.)
Heck categorically denies knowledge of any confidential information that can be used against NLV in this lawsuit or "against any UnumProvident subsidiary in future litigation." (Dkt. No. 25: Heck Aff. ¶ 2.) Heck points out that Unum is the largest disability insurer in the United States, with over fifty percent of the long-term disability market. (Id. ¶ 50.) If disqualified, Heck contends that he will be prevented from practicing law and precluded from earning a living in an area of law that he enjoys, has substantial experience in and to which he has devoted the majority of his legal career. (Id.)
Rulings in Other Cases Disqualifying Heck
In the Lott case, based on Unum and DDK affidavits that appear to be substantially identical to those submitted here, Judge Baer disqualified both Heck and the Binder firm. Lott v. Morgan Stanley Dean Witter Co., 03 Civ. 9235, 2004 WL 2980193 (S.D.N.Y. Dec. 23, 2004) (Baer, D.J.). Judge Baer noted that his "determination [was] limited to the facts and circumstances of [that] particular case," and that the necessary "substantial relationship" may or may not exist in different cases. Id. at *3.
In another case against Unum, Magistrate Judge Joel Rosen ordered Heck and Binder disqualified in Denisi v. CNF Transportation Inc. Disability Plan, No. 04-CV-2379, Unpublished Order (D.N.J. Dec. 8, 2004), but the order notes that Heck and Binder did not file an opposition to the motion. (1/4/05 Kanner Letter to Judge Daniels, enclosed M.J. Rosen Order.)
ANALYSIS
I. NLV'S MOTION TO DISQUALIFY HECK IS GRANTED A. The "Substantial Relationship" Test for a Motion to Disqualify Opposing Counsel
The Second Circuit has adopted the substantial relationship" test first articulated by Judge Weinfeld in T.C. Theatre Corp. v. Warner Bros. Pictures, Inc., 113 F. Supp. 265, 268-69 (S.D.N.Y. 1953), under which the movant must make a three-prong showing in order to prevail:
"(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 counsel'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 v. Artek Sys. Corp., 715 F.2d 788, 791 (2d Cir. 1983) (leading 2d Cir. case); see, e.g., In re DW Wallcovering, Inc., Misc. No. 453, 74 F.3d 1259 (table), 1996 WL 17457 at *2 (Fed. Cir. Jan. 3, 1996) (applying 2d Cir. law as set forth in Evans); United States v.DiTommaso, 817 F.2d 201, 219 (2d Cir. 1987); Emle Indus., Inc. v.Patentex Corp., 478 F.2d 562, 570 (2d Cir. 1973); Lott v. Morgan Stanley Dean Witter Co., 03 Civ. 9235, 2004 WL 2980193 (S.D.N.Y. Dec. 23, 2004) (Baer, D.J.); Levin v. Raynor, 03 Civ. 4697, 2004 WL 2937831 at *2 (S.D.N.Y. Dec. 17, 2004) (Daniels, D.J.); Rella v. North Atl. Marine, Ltd., 02 Civ. 8573, 2004 WL 2480409 at *4 (S.D.N.Y. Nov. 3, 2004);Agilent Tech., Inc. v. Micromuse, Inc., 04 Civ. 3090, 2004 WL 2346152 at *9-10 (S.D.N.Y. Oct. 19, 2004); Guerrilla Girls, Inc. v. Kaz, 03 Civ. 4619, 2004 WL 2238510 at *2 (S.D.N.Y. Oct. 4, 2004); Blue Planet Software, Inc. v. Games Int'l, LLC, 331 F. Supp. 2d 273, 276 (S.D.N.Y. 2004); Arifi v. De Transport du Cocher, Inc., 290 F. Supp. 2d 344, 349 (E.D.N.Y. 2003); Cleverly Minded Ltd. v.Anthony Sicari Apparel Group Indus., Inc., 02 Civ. 4489, 2003 WL 161317 at *2 (S.D.N.Y. Jan. 23, 2003); Regal Marketing, Inc. v. Sonny Son Produce Corp., 01 Civ. 1911, 2002 WL 1788026 at *5 (S.D.N.Y. Aug. 1, 2002).
"The objective of the disqualification rule is to 'preserve the integrity of the adversary process.'" Evans v. Artek Sys. Corp., 715 F.2d at 791; see also, e.g., Richards v. City of New York, 97 Civ. 7990, 2000 WL 130635 at *3 (S.D.N.Y. Feb. 2, 2000). "The test gives effect to the proscriptions in Canons 4 and 5 of the New York Code of Professional Responsibility against an attorney improperly using the confidences of a former client to the former client's disadvantage."Cleverly Minded Ltd. v. Anthony Sicari Apparel Group Indus., Inc., 2003 WL 161317 at *2.
Courts require the party seeking disqualification of opposing counsel to meet a "high standard of proof" before disqualification may be granted. See, e.g., Evans v. Artek Sys. Corp., 715 F.2d at 791;Government of India v. Cook Indus., Inc., 569 F.2d 737, 739 (2d Cir. 1978); Arifi v. De Transport du Cocher, Inc., 290 F. Supp. 2d at 349;A.I. Credit Corp. v. Providence Washington Ins. Co., 96 Civ. 7955, 1997 WL 231127 at *2 (S.D.N.Y. May 7, 1997) (Peck, M.J.) ( cases cited therein). "'Mere speculations will not suffice.'" A.I. Credit Corp. v.Providence Washington Ins. Co., 1997 WL 231127 at *2 (citing cases).
"Although the conclusion in any particular case 'can be reached only after a painstaking analysis of the facts and precise application of precedent,' the question ultimately is one of preserving the public's trust in the 'scrupulous administration of justice and in the integrity of the bar.' For that reason, any lingering doubt must be resolved in favor of disqualification." Cleverly Minded Ltd. v. Anthony Sicari Apparel Group Indus., Inc., 2003 WL 161317 at *2 (citations omitted); see also, e.g., Lott v. Morgan Stanley Dean Witter Co., 2004 WL 2980193 at *1 ("The adjudication of such matters, the Second Circuit has held, requires the district court to resolve 'any doubt[s] . . . in favor of disqualification.'") (citing cases); Levin v. Raynor, 2004 WL 2937831 at *3 ("Any doubt or ambiguity regarding disqualification is to be resolved in favor of disqualification."); Guerrilla Girls, Inc. v. Kaz, 2004 WL 2238510 at *1 ("Any doubt . . . 'is to be resolved in favor of disqualification.'"); Blue Planet Software, Inc. v. Games Int'l, LLC, 331 F. Supp. 2d at 275 ("When a party moves for the disqualification of his adversary's attorney, 'any doubt is to be resolved in favor of disqualification.'"); Mitchell v. Metropolitan Life Ins. Co., 01 Civ. 2112, 2002 WL 441194 at *3 (S.D.N.Y. March 21, 2002) ("Any doubts . . . should be resolved in favor of disqualification."). B. Application of the "Substantial Relationship" Test to Heck
As the court in Mitchell explained:
Client confidences . . . are fungiblé, and once disclosed can be applied by an experienced lawyer in ways too numerous to anticipate[.] . . . As the Second Circuit observed, "[t]he dynamics of litigation are far too subtle, the attorney's role in that process is far too critical, and the public's interest in the outcome is far too great to leave room for even the slightest doubt concerning the ethical propriety of a lawyer's representation in a given case."Mitchell v. Metropolitan Life Ins. Co., 2002 WL 441194 at *8 (citations omitted).
The parties concede, as they must, that the governing legal standard is the "substantial relationship" test. (Dkt. No. 26: Heck Br. at 11; Dkt. No. 24: NLV Br. at 17.)
1. NLV Is Heck's Former Client
As to the first prong of the test, it is undisputed that Unum (and NLV specifically) is a former client of Heck's. (See page 3 above.) See also Lott v. Morgan Stanley Dean Witter Co., 03 Civ. 9235, 2004 WL 2980193 at *1-2 (S.D.N.Y. Dec. 23, 2004) (Baer, D.J.) (finding that Unum and Heck had an attorney-client relationship). 2. A "Substantial Relationship" Exists
As a preliminary matter, the Court notes that unlike many of the disqualification cases, this case does not involve the need to balance ethical standards against a party's right to hire counsel of choice. That conflict is the basis for the "high standard of proof" required in prior-represented disqualification motions. As the Second Circuit has stated:
[W]e are mindful that there is a particularly trenchant reason for requiring a high standard of proof on the part of one who seeks to disqualify his former counsel, for in disqualification matters we must be solicitous of a client's right freely to choose his counsel a right which of course must be balanced against the need to maintain the highest standards of the profession. A client whose attorney is disqualified incurs a loss of time and money in being compelled to retain new counsel who in turn have to become familiar with the prior comprehensive investigation which is the core of modern complex litigation. The client moreover may lose the benefit of its longtime counsel's specialized knowledge of its operations.Government of India v. Cook Indus., Inc., 569 F.2d 737, 739-40 (2d Cir. 1978) (citations omitted); accord, e.g., Evans v. Artek Sys. Corp., 715 F.2d 788, 792 (2d Cir. 1983); Rella v. North Atl. Marine, Ltd., 02 Civ. 8573, 2004 WL 2480409 at *4 (S.D.N.Y. Nov. 3, 2004) (emphasizing the importance of engaging in a balancing of interests: "[C]ourts are obligated both to enforce the ethical standards of the legal profession, and to protect parties from prejudice that may ensue when lawyers who formerly represented them switch sides to represent an adverse party against them. '[A] client's right freely to choose his counsel . . . must be balanced against the need to maintain the highest standards of the profession.'" (quoting Government of India v. Cook Indus., Inc.);Guerrilla Girls, Inc. v. Kaz, 03 Civ. 4619, 2004 WL 2238510 at *2 (S.D.N.Y. Oct. 4, 2004) ("A court deciding a motion to disqualify counsel must be solicitous of a client's right freely to choose his counsel — a right which of course must be balanced against the need to maintain the highest standards of the profession.'") (quoting Government of India v. Cook Indus., Inc.);Hempstead Video, Inc. v. Incorporated Vill. of Valley Stream, No. CV 94-3659, 2004 WL 62560 at *3 (E.D.N.Y. Jan. 12, 2004) ("The Second Circuit has 'indeed been loathe to separate a client from his chosen attorney . . . The delay and additional expense created by substitution of counsel is a factor to which [it has] attached considerable significance'. . . . In deciding a motion to disqualify counsel, the court must balance the 'client's right [to] freely . . . choose his counsel' against 'the need to maintain the highest standards of the profession.'"); Hirsch v. Columbia Univ., Coll. of Physicians Surgeons, 293 F. Supp. 2d 372, 375 (S.D.N.Y. 2003); Arifi v. De Transport du Cocher, Inc., 290 F.Supp.2d 344, 349 (E.D.N.Y. 2003).
That conflict is not present here as to Heck. Battagliola hired the Binder firm, and that firm commenced this action, long before Heck joined the Binder firm (in fact, while Heck still worked for DDK representing Unum). The Binder firm, not Heck, was Battagliola's counsel of choice. Nor will Heck's disqualification cause Battagliola a loss of time or money — discovery closed without Heck's involvement and Heck did no work on the pending summary judgment motions. (See page 10 above.) Indeed, if NLV's summary judgment motion is granted in full, the case will be over. On the particular procedural posture of this case, it is even more appropriate to resolve any doubt in favor of disqualification.
The substantial relationship test, as originally stated by Judge Weinfeld, holds "that the former client need show no more than that the matters embraced within the pending suit wherein his former attorney appears on behalf of his adversary are substantially related to the matters or cause of action wherein the attorney previously represented him, the former client." T.C. Theatre Corp. v. Warner Bros. Pictures, Inc., 113 F. Supp. 265, 268 (S.D.N.Y. 1953) (Weinfeld, D.J.). This need to balance the non-movants right to counsel of choice
[has] resulted in honing the "substantial relationship" test in this Circuit in practical application to granting disqualification only upon a showing that the relationship between issues in the prior and present cases is "patently clear." Put more specifically, disqualification has been granted or approved recently only when the issues involved have been "identical" or "essentially the same."Government of India v. Cook Indus., Inc., 569 F.2d at 739-40 (citations omitted); accord, e.g., Arifi v. De Transport du Cocher, Inc., 290 F.Supp. 2d at 349; Parkins v. St. John, 01 Civ. 11660, 2004 WL 1620897 at *6 (S.D.N.Y. July 19, 2004); Hempstead Video, Inc. v.Incorporated Vill. of Valley Stream, 2004 WL 62560 at *7; United States v. Armaza, 280 F.Supp.2d 174, 183 (S.D.N.Y. 2003) (criminal disqualification case); Quinones v. Miller, 01 Civ. 10752, 2003 WL 21276429 at *32 (S.D.N.Y. June 3, 2003) (Peck, M.J.); Regal Marketing, Inc. v. Sonny Son Produce Corp., 01 Civ. 1911, 2002 WL 1788026 at *7 (S.D.N.Y. Aug. 1, 2002) (citing cases); Mitchell v. Metropolitan Life Ins. Co., 01 Civ. 2112, 2002 WL 441194 at *4 (S.D.N.Y. March 21, 2002).
To determine what creates a "substantial relationship," the Court is guided by prior decisions. See, e.g., Silver Chrysler Plymouth, Inc. v.Chrysler Motors Corp., 518 F.2d 751, 754-55 (2d Cir. 1975), overruled on other grounds, Armstrong v. McAlpin, 625 F.2d 433 (2d Cir. 1980),vacated, 449 U.S. 1106, 101 S.Ct. 911 (1981); British Int'l Ins. Co. v.Seguros La Republica, 90 Civ. 2370, 2002 WL 31307165 at *2 (S.D.N.Y. Oct. 29, 2002) ("[T]he conclusion in any particular case 'can be reached only after a painstaking analysis of the facts and precise application of precedent.'").
In Government of India v. Cook Indus., Inc., the attorney in question, Meeker, had defended Cook against claims that it had sent various customers shipments of soybeans that were several hundred tons short of the weight stated on bills of lading. 569 F.2d at 739. During that prior representation, Meeker's "firm billed Cook for more than one hundred hours of Meeker's services" over the course of three years. Id. Meeker prepared answers to the complaints against Cook, prepared summary judgment motion papers, interviewed witnesses and "maintained close contact with Cook's general counsel." Id. After leaving his prior firm, he represented India in a new action against Cook. Id. at 738. In that subsequent action, India "allege[d], as plaintiffs did in the Soybean Actions, that grain delivered pursuant to contracts with Cook were of 'short weight'" and alleged that Cook had fraudulently issued the bills of lading. Id. at 739. The Second Circuit affirmed Meeker's disqualification, holding:
[C]learly the issues in the prior and present cases were substantially related. The fraud issue in the Soybean Actions required [Meeker's old firm] to conduct confidential inquiries as to Cook's loading procedures. The very same information necessarily was the cornerstone upon which India's fraud claim against Cook in the instant case was based. It would be difficult to think of a closer nexus between issues.Id. Thus, even though the actions involved different shipments, of different products, at different times, to different recipients, the Second Circuit confirmed that an issue — whether Cook issued false bills of lading — was present in both cases, warranting disqualification.
In Mitchell v. Metropolitan Life Ins. Co., 01 Civ. 2112, 2002 WL 441194 (S.D.N.Y. Mar. 21, 2002), the lawyer, Fleishman, had represented MetLife in a series of sales practices lawsuits, relating to the conduct of employees in the MetLife Financial Services ("MLFS") field force. 2002 WL 441194 at *2. Fleishman spent 1800 hours on 50 MetLife matters in 1999 and 1540 hours on 40 MetLife matters in 2000. Id. "Although none of her work directly related to employment discrimination, Fleishman's defense of MetLife enabled her to become conversant with detailed confidential information regarding the internal operations, policies and procedures of MLFS in general and with specific connection to the alleged sales practices charges." Id. In addition, "Fleishman also was privy to privileged communications concerning MetLife's settlement strategy" and approaches to settlement. Id. at *3. Fleishman thereafter joined a different law firm, which shortly thereafter commenced an employment discrimination action against MetLife on behalf of several employees of the MLFS field force. Id. at *1-2. Judge Pauley disqualified Fleischman, finding that the discrimination action was substantially related to the prior sales practices actions:
MetLife has demonstrated that Fleishman, as a result of her prolonged and extensive prior representations of the company, acquired or was privy to confidential institutional information about MetLife, its MLFS division and MLFS personnel and that this information is relevant to this pending action in which plaintiffs, on an institutional level, attack the company's employment policies and practices. . . . Plainly, this knowledge is substantially related to disputed factual issues material to the resolution of the present action.Id. at *6. Judge Pauley noted that "the relevant inquiry is not limited to whether there are common legal claims or theories between the representations, but extends [also] to whether there are common factual issues that are material to the adjudication of the prior and current representations." Id. at *8. And in words equally applicable to the present case, Judge Pauley noted that "[c]ourts in this district have ordered disqualification in comparable contexts, such as where an attorney or law firm gained extensive or highly confidential knowledge about a client through a prior, broad-based representation and that knowledge pertained to a subsequent lawsuit to the disadvantage of the client." Id. at *7.
In Ullrich v. Hearst Corp., 809 F. Supp. 229 (S.D.N.Y. 1992), then-District Judge Leval disqualified attorney Bernbach from representing plaintiffs in three employment discrimination lawsuits against Hearst when he had previously represented Hearst "for nearly 20 years . . . on labor employment and personnel matters." 809 F.Supp. at 230. Judge Leval found Bernbach's knowledge to be extensive:
For nearly 20 years, Mr. Bernbach has been rendering legal advice and litigation services to Hearst in matters that are very closely related to issues arising in these three lawsuits. . . . Mr. Bernbach has had continuous access to Hearst's confidential information and confidential policies. . . . Bernbach's negotiations of . . . settlements on behalf of Hearst in cases of other employees raising similar claims gives him unquestionable confidential information as to how Hearst's management assesses its vulnerability on such claims.Id. at 234-35. Judge Leval observed:
[T]he charges made by Mr. Bernbach's new clients against Hearst do not allege isolated tortious acts unconnected to continuing policies of management. It is not as if a plaintiff were suing because the driver of a Hearst delivery truck failed to stop at a stop sign or failed to signal a left turn — events which would arguably have little or no connection to past management practicies on which the attorney had previously consulted. What is claimed here is that Hearst's actions towards the plaintiffs were motivated by discriminatory animus.Id. at 235.
As in those cases, Heck's representation of NLV and other UnumProvident companies was extensive. Heck billed over 9600 hours on Unum matters in the last seven years. (See page 3 above.) Between 2002 and 2004, Heck represented Unum in over 40 disability cases. (See page 3 above.) He was the lead attorney in theKortlander disability benefits case and billed over 500 hours on that case alone in 2003-04. (See page 4 above.)
While Heck claims that he generally researched the law and wrote legal briefs while his more senior partner had primary client contact responsibilities (see pages 3-4 above), at least in connection with theKortlander case Heck worked with and prepared Unum witnesses for deposition, engaged in settlement discussions with Unum and the plaintiff, and worked closely with Unum on trial strategy. (See page 4 above.)
Moreover, Heck had access to confidential Unum information about disability claims handling and litigation through the bcc system, the LES and outside counsel meetings. (See pages 6-9 above.)
Based on these same facts, Judge Baer recently disqualified Heck, finding:
While at DDKH, "[v]irtually all of the cases [Heck] was involved in involved, or included, claims for benefits under individual and group long-term disability insurance policies." In particular, Heck worked closely with man First Unum in-house attorneys on matters substantially related to this case. . . . In addition, Heck also attended at least one of UnumProvident's "outside counsel meetings" and was privy to information regarding claims by ex-employees of UnumProvident that "others were making, and — even more importantly, regarding the company's response to those claims so that we could best defend the company." In short, Heck maintained an advanced, highly developed understanding of First Unum's claims review procedure.Lott v. Morgan Stanley Dean Witter Co., 03 Civ. 9235, 2004 WL 2980193 (S.D.N.Y. Dec. 23, 2004). Judge Baer concluded that disqualification was a "no brainer":
Accordingly, Lott, Heck, and Heck's prior attorney/client relationship with First Unum and Unum Provident are "substantially related." While it is likely that Lott's decision to draft a broad legal claim, which anticipated First Unum's oft used defenses, Heck's several years as a named partner billing hundreds of hours to First Unum doing just this kind of work, coupled with an analysis of his discovery requests, which demonstrate his understanding, from the inside, of his knowledge of First Unum's most confidential legal tactics in cases such as this, may well be sufficient to establish a "substantial relationship." Add to this the clear appearance of impropriety and satisfying this aspect of the test is a no brainer.Id. at *3 (fns. omitted).
Here, too, the issues in this case involve not just whether Battagliola is entitled to disability benefits, but whether NLV engaged in "deceptive tactics in connection with its marketing and claims handling practices" (e.g., Dkt. No. 1: Compl. ¶ 3). Indeed, the complaint's third cause of action, pursuant to New York General Business Law § 349, asserts that "as a general business practice, Defendant wrongfully refuses to pay Disability Income Insurance Policy claims." (Compl. ¶ 70; see also, e.g., Dkt. No. 34: Def. Summ. J. Br. at 12.) These broad, deceptive practices claims (albeit initiated before Heck joined the Binder firm), are the very types of claims that Heck defended NLV and Unum against while at DDK. (See, e.g., page 9 above.) The Court agrees with Judge Baer that satisfying the second prong of the three prong substantial relationship test is a "no brainer."
Heck argues, however, that Battagliola's case is not "substantially related" to any case he worked on when he represented Unum because of Unum's position, in its claim manual and in submissions in other cases, "concerning the individual nature of each claim determination made by [UnumProvident's] subsidiaries." (Dkt. No. 25: Heck Aff. ¶ 49; see also id. ¶ 10 Ex. A (claim manual stating: "Every claim submitted to UNUM Provident is different and must be decided on its own unique and individual facts."); id. ¶¶ 25-26; Dkt. No. 26: Heck Br. at 4, 6, 13.)
Heck's argument is silly. Heck, who used to represent Unum, points to the Unum claims manual for the argument that each case is unique and so this case has no substantial relationship to his prior representation of Unum — but at the same time, this case includes a claim for deceptive claims practices in general. (See above.) Counsel for Battagliola have not dropped the deceptive practices claim. Whether the deceptive practices claim has merit or not is not the point; the claim is asserted in this case, and was involved in cases where Heck represented Unum. In addition, Heck has knowledge from his substantial representation of Unum as to how it evaluates these suits and its settlement strategy and approach. The substantial relationship test is indeed a "no brainer," as Judge Baer also found.
3. Heck Had Access To Relevant NLV Privileged Information
The third prong of the test is whether Heck had access to relevant privileged information. (See cases cited at pages 11-12 above.)
Heck complains that although Unum provided affidavits from its in-house counsel and from his former senior partner at DDK, Unum does not identify what privileged information he obtained from his prior relationship. (E.g., Dkt. No. 26: Heck Br. at 5: "Nowhere in any declaration submitted by counsel for National Life is there a single reference to any confidence Mr. Heck could reasonably be expected to possess that would justify his disqualification from practicing in this factually particular and highly specialized area of law. Nor do these declarations present facts that would in any way support the inference that Mr. Heck gained confidential information of a general or specific nature that could arguably be used to the disadvantage of UnumProvident or its subsidiaries.")
The complete answer to this argument was given by Judge Weinfeld over fifty years ago:
To compel the client to show, in addition to establishing that the subject of the present adverse representation is related to the former, the actual confidential matters previously entrusted to the attorney and their possible value to the present client would tear aside the protective cloak drawn about the lawyer-client relationship. For the Court to probe further and sift the confidences in fact revealed would require the disclosure of the very matters intended to be protected by the rule. It would defeat an important purpose of the rule of secrecy — to encourage clients fully and freely to make known to their attorneys all facts pertinent to their cause. Considerations of public policy, no less than the client's private interest, require rigid enforcement of the rule against disclosure. No client should ever be concerned with the possible use against him in future litigation of what he may have revealed to his attorney. Matters disclosed by clients under the protective seal of the attorney-client relationship and intended in their defense should not be used as weapons of offense. . . . Lawyers should not put themselves in the position 'where, even unconsciously, they might take, in the interests of a new client, an advantage derived or traceable to, confidences reposed under the cloak of a prior, privileged relationship.' In cases of this sort the Court must ask whether it can reasonably be said that in the course of the former representation the attorney might have acquired information related to the subject of his subsequent representation. If so, then the relationship between the two matters is sufficiently close to bring the later representation within the prohibition of Canon 6. In the instant case I think this can be said.T.C. Theatre Corp. v. Warner Bros. Pictures, Inc., 113 F. Supp. 265, 269 (S.D.N.Y. 1953) (Weinfeld, D.J.) (fns. omitted); see also, e.g., Cheng v. GAF Corp., 631 F.2d 1052, 1056 (2d Cir. 1980) ("It is well established that a court may not inquire into the nature of the confidences alleged to have been revealed to the tainted attorney."),vacated on other grounds, 450 U.S. 903, 101 S. Ct. 1338 (1981); Government of India v. Cook Indus., Inc., 569 F.2d 737, 740 (2d Cir. 1978) (correct inquiry is whether lawyer's "involvement in the prior case was such that he would have had access," and the "court should not require proof that an attorney actually had access to or received privileged information," since the latter inquiry "would put the former client to the Hobson's choice of either having to disclose [the] privileged information in order to disqualify his former attorney or having to refrain from the disqualification motion altogether."); Emle Indus., Inc. v. Patentex Corp., 478 F.2d 562, 571 (2d Cir. 1973) ("[T]he court need not, indeed cannot, inquire whether the lawyer did, in fact, receive confidential information . . . which might be used to the client's disadvantage."); Guerrilla Girls, Inc. v. Kaz, 03 Civ. 4619, 2004 WL 2238510 at *5 (S.D.N.Y. Oct. 4, 2004); Papyrus Tech. Corp. v. New York Stock Exch., 325 F. Supp. 2d 270, 274 n. 5 (S.D.N.Y. 2004) ("Providing redacted evidence in a disqualification motion is appropriate" because revelation of confidences to show access to privileged information is not required); Mitchell v. Metropolitan Life Ins. Co., 01 Civ. 2112, 2002 WL 441194 (S.D.N.Y. Mar. 21, 2002); Ullrich v. Hearst Corp., 809 F. Supp. 229, 233-34 (S.D.N.Y. 1992).
In other words, the finding of a substantial relationship between the prior and present litigations creates a "rebuttable presumption" that counsel had access to the privileged information. See, e.g., Cheng v. GAF Corp., 631 F.2d at 1056 (citing Silver Chrysler Plymouth Inc. v. Chrysler Motors Corp., 518 F.2d 751, 754 (2d Cir. 1975), overruled on other grounds, Armstrong v. McAlpin, 625 F.2d 433 (2d Cir. 1980), vacated, 449 U.S. 1106, 101 S. Ct. 911 (1981)), vacated on other grounds, 450 U.S. 903, 101 S. Ct. 1338 (1981); Miroglio, S.P.A. v. Morgan Fabrics Corp., 340 F. Supp. 2d 510, 512-13 (S.D.N.Y. 2004) ("The law in this Circuit has evolved and the presumption that the attorney was likely to have had access to client confidences may be rebutted; the issue remains that of access rather than the content of confidential communications.");Hempstead Video, Inc. v. Incorporated Vill. of Valley Stream, No. CV 94-3659, 2004 WL 62560 at *7 (E.D.N.Y. Jan. 12, 2004) ("'[A]lthough there may be an inference that an attorney has knowledge of the confidences and secrets of his [former client], that inference is rebuttable.'") (quotingCheng v. GAF Corp.); Arifi v. De Transport du Cocher, Inc., 290 F. Supp. 2d 344, 350 (E.D.N.Y. 2003); United States v. Armaza, 280 F. Supp. 2d 174, 183 (S.D.N.Y. 2003); British Int'l Ins. Co. v.Seguros La Republica, 90 Civ. 2370, 2002 WL 31307165 at *5 (S.D.N.Y. Oct. 29, 2002) (plaintiff successfully rebutted presumption that movant "'had to have' shared with [the attorney] confidential information relevant to [the] action.").
While Heck asserts that he does not recall any confidential information (Dkt. No. 25: Heck Aff. ¶¶ 2, 12, 18, 46, 47), that is not sufficient. "While there is no reason to doubt [Heck's] claim that he does not remember any confidential information, the Court nevertheless finds that he was likely to have had access to such information" during his extensive prior representation of Unum. See Arifi v. De Transport du Cocher, Inc., 290 F. Supp. 2d at 350; see also, e.g., Rella v. North Atl. Marine, Ltd., 02 Civ. 8573, 2004 WL 2480409 at *4 (S.D.N.Y. Nov. 3, 2004); Mitchell v. Metropolitan Life Ins. Co., 2002 WL 441194 at *5-6.
Clearly, this Court can conclude, as did Judge Baer, that Heck was likely to have had access to confidential Unum information. See Lott v.Morgan Stanley Dean Witter Co., 03 Civ. 9235, 2004 WL 2980193 at *4 (S.D.N.Y. Dec. 23, 2004). Indeed, although not necessary, based on the affidavits from Unum's in-house counsel and Heck's former senior partner at DDK, this Court could conclude that Heck had actual access to privileged and confidential Unum information including litigation strategy and settlement strategy. (See pages 4-5, 8-9 above.)
* * * * *
Accordingly, the Court disqualifies Heck from representing plaintiff Battagliola in this case.
II. NLV'S MOTION TO DISQUALIFY THE BINDER LAW FIRM IS CONDITIONALLY DENIED
In the Lott case, Judge Baer disqualified not only Heck but the Binder firm, holding:
Pursuant to Code Cannon 5, Disciplinary Rule 5-105(D), the conflict of a single attorney may be imputed to the attorney's entire firm. However, Rule 5-105 does not establish a "per se rule of disqualification based upon imputed confidences" because such a rule "would create unnecessarily preclusive and indiscriminate restraints upon an entire law firm, regardless of whether they have knowledge of a former client's confidences." The imputation rule is based upon the belief that when attorney-client confidences are disclosed to a member of the law firm, every other attorney in the law firm has the opportunity to ascertain the information gleaned from the disclosure. This presumption, however, may be rebutted when one attorney "screens" the rest of the attorneys from the disclosure. Here, however, neither Heck nor Binder Binder implemented any screening procedures. Accordingly, in these circumstances, imputation is appropriate and disqualification of Binder Binder is appropriate.Lott v. Morgan Stanley Dean Witter Co., 03 Civ. 9235, 2004 WL 2980193 at *4 (S.D.N.Y. Dec. 23, 2004) (Baer, D.J.) (citations omitted); see generally, e.g., Cheng v. GAF Corp., 631 F.2d 1052, 1057-58 (2d Cir. 1980) (based on DR 5-105(D), even though law firm claimed to have put up "Chinese Wall," the small size of the law firm created a continuing danger that attorney would inadvertently share confidential information with his firm, thereby requiring disqualification of law firm as well as individual attorney), vacated on other grounds, 450 U.S. 903, 101 S. Ct. 1338 (1981); Blue Planet Software, Inc. v. Games Int'l, LLC, 331 F. Supp. 2d 273, 276 (S.D.N.Y. 2004); Papyrus Tech. Corp. v. New York Stock Exch., 325 F. Supp. 2d 270, 277-78 (S.D.N.Y. 2004) ("Under D.R. 5-105(D), the taint of a disqualified attorney may be imputed to the attorney's entire firm. . . . However, courts have recognized that under appropriate circumstances a screen may rebut the presumption of shared confidences."); Arifi v. De Transport du Cocher, Inc., 290 F. Supp. 2d 344, 351 (E.D.N.Y. 2003) ("The ABA Code's presumption that client confidences are shared among attorneys in a law firm may be rebutted if '(1) the attorney is effectively screened, i.e., an adequate "Chinese Wall" is created, and (2) there is no further appearance of impropriety.'"); Mitchell v. Metropolitan Life Ins. Co., 01 Civ. 2112, 2002 WL 441194 at *9-10 (S.D.N.Y. Mar. 21, 2002) (discussing skepticism about screening and factors to consider).
The Court notes that under the Second Circuit's adoption of the substantial relationship test in Evans, the test establishes when an attorney "may," not must, be disqualified. E.g., Blue Planet Software, Inc. v. Games Int'l, LLC, 331 F. Supp. 2d at 277 (citing Evans v. Artek Sys. Corp., 715 F.2d 788, 791 (2d Cir. 1983) ("[A]n attorney may be disqualified from representing a client in a particular case if" the three prongs quoted on pages 11-12 above are met) (emphasis added); see also, e.g., Lott v. Morgan Stanley Dean Witter Co., 2004 WL 2980193 at *1 (same); Levin v. Raynor, 03 Civ. 4697, 2004 WL 2937831 at *2 (S.D.N.Y. Dec. 17, 2004) (Daniels, D.J.) (same). "The issue then becomes whether in the exercise of discretion, . . . he should be disqualified." Blue Planet Software, Inc. v. Games Int'l, LLC, 331 F. Supp. 2d at 277.
Here, Heck had no input into the drafting of the complaint or Binder's strategy in this case; he joined the firm a month before the discovery cutoff and took no part in discovery. (See page 10 above.) Heck also had no involvement in the summary judgment briefing. (See page 10 above.) In his affidavit opposing the disqualification motion, Heck affirmed his non-involvement in this case. (Dkt. No. 25: Heck Aff. ¶ 2.)
The Binder firm notes that Heck can easily be screened since he works from a different office than the attorneys in the firm handling the Battagliola case: "Mr. Heck works in the Wayne, New Jersey office of Binder Binder. The Battagliola file is located in Binder Binder's Ronkonkoma [New York] office." (Dkt. No. 26: Heck Br. at 15.)
It would create an extreme hardship on plaintiff Battagliola to have to obtain new counsel to replace the Binder firm at this late stage of the litigation.
Accordingly, in the exercise of the Court's discretion in these matters, the Court declines to disqualify the Binder firm, conditional on its screening Heck from any involvement in or discussion about this case with the attorney(s) working on the case. If requested by NLV, Heck and the Binder attorney working on this case will be required to submit affidavits to this effect at the time the pretrial order is filed.
CONCLUSION
For the reasons set forth above, NLV's motion to disqualify Heck isGRANTED but its motion to disqualify the Binder firm is (conditionally)DENIED.FILING OF OBJECTIONS TO THIS OPINION AND ORDER
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Opinion to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable George B. Daniels, 40 Centre Street, Room 410, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Daniels. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S. Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S. Ct. 825 (1992); Small v. Secretary of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).SO ORDERED.