Henderson v. City of Troy et al
MEMORANDUM OPINION AND ORDER: It is ORDERED that the 23 "Rule 26(d)(1) Motion to Alter or be Exempted from Rule 26(d)(1)'s restriction" be and is hereby DENIED as further set out in the opinion and order. Signed by Honorable Judge Charles S. Coody on 8/4/2016. (dmn, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
DEJERILYN KING HENDERSON,
CITY OF TROY, et al.,
CIVIL ACT. NO. 2:16cv130-JEM
MEMORANDUM OPINION and ORDER
Now pending before the court is the plaintiff’s “Rule 26(d)(1) motion to alter or be
exempted from Rule 26(d)(1)’s restriction” (doc. # 23) filed on March 18, 2016. The
plaintiff seeks to conduct discovery prior to the FED.R.CIV.P. 26(f) conference required by
FED.R.CIV.P. 26(d)(1).1 The defendants oppose the plaintiff’s attempt to seek expedited
discovery. See Doc. # 29. For the reasons which follow, the plaintiff’s motion is due to be
A brief history of this case is necessary for resolution of the plaintiff’s pending
motion. The plaintiff, Dejerilyn King Henderson (“Henderson”), is a city councilwoman
representing District 5 on the Troy City Council. She opposed the selection of a candidate
for appointment as the next Fire Chief of the Troy Fire Department. An unsuccessful
candidate for the fire chief position sued the City and the City Council alleging a violation
FED.R.CIV.P. 26(d)(1) provides in pertinent part that “[a] party may not seek discovery from
any source before the parties have conferred as required by Rule 26(f), except . . . when authorized by
these rules, by stipulation, or by court order.”
of Alabama’s Open Meetings Act, ALA CODE § 36-25A-1, et seq., in the selection of the Fire
Chief. The plaintiff supported the unsuccessful candidate in his litigation against the City
and the City Council.
Henderson brought suit in this court alleging that she was denied notice of and
participation in meetings, discussions, and communications by the Council related to that
pending litigation. On March 10, 2016, Henderson filed a motion to disqualify the
defendants’ counsel “due to a conflict of interest that exists pursuant to Rule 3.7 of the
Alabama Rules of Professional Conduct - Lawyer as Witness.” (Doc. # 21). In her motion
to disqualify, Henderson asserts that defense counsel are “essential witnesses” to the “pattern,
policy, and practice of excluding [her] from meeting(s) and deliberation(s) pertaining to any
litigation that sheds light on [the defendants] violating the Alabama Open Meetings Act.”
(Doc. # 21 at 6). According to Henderson, all of the attorneys representing the defendants
should be disqualified “because their testimony is essential to show the state of mind and
pattern and practice of Defendants illegally excluding Plaintiff from meetings and
deliberations.” (Id. at 7).
In her motion regarding FED.R.CIV.P. 26(d)(1), Henderson asserts that she needs “to
be exempted” from “the restrictions” of the rule and permitted to conduct early discovery
because she is “entitled to the items requested in the attached subpoena duces tecums in order
to support her motion to disqualify.” (Doc. # 3 at ¶ 14).
Courts typically require a showing of good cause in determining whether to grant a
party’s request for early discovery. Nu Image, Inc. v. Does 1-23,322, 799 F. Supp. 2d 34, 36
(D.D.C. 2011). Platinum Manufacturing International, Inc. v. Uninet Imaging, Inc., 2008
WL 927558, *1 (M.D. Fla. April 4, 2008) (No. 8:08-cv-310-T-27MAP). Relying on Rule
3.7 of Alabama’s Rules of Professional Conduct, Henderson contends that defense counsel
should be disqualified because they have become essential witnesses. Rule 3.7 prohibits a
lawyer from acting “as advocate at a trial in which the lawyer is likely to be a necessary
witness.” ALA. RULES OF PROF’L CONDUCT RULE 3.7.
First, the Rule prohibits counsel from acting as advocates at trial. This case is at an
early stage. The rule is simply inapplicable at this juncture. Next, and more importantly,
Henderson has failed to demonstrate that counsel are necessary witnesses. In her amended
complaint, Henderson states that
[p]rior to Defendants Council Members voting to make the appointment for
the next fire chief for the City of Troy, Plaintiff requested that Defendants
Council Members expand the application process for appointment to include
a larger statewide or potential nationwide applicant pool. Plaintiff also
requested that Defendants Council Members allow more time for applicants
from a statewide or potential national applicant pool to apply for the position
of fire chief.
(Doc. # 20 at 2, ¶ 9).
As set forth in her amended complaint, other persons were present during the meetings
about which she complains. The existence or conduct of such meetings can be shown by
other persons present, and, thus, the plaintiff has failed to demonstrate that the defendants’
lawyers are necessary witnesses. If the defendants’ state of mind is relevant, the defendangts
are the proper source of that information. Henderson has presented the court with no reason
to interfere with the normal process of litigation. Consequently, the court concludes that she
has failed to demonstrate good cause necessary to require early discovery.
Accordingly, it is
ORDERED that the “Rule 26(d)(1) motion to alter or be exempted from Rule
26(d)(1)’s restriction” (doc. # 23) be and is hereby DENIED.
Done this 4th day of August, 2016.
/s/Charles S. Coody
CHARLES S. COODY
UNITED STATES MAGISTRATE JUDGE
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