Covey v. Colonial Pipeline Company et al

Filing 155

MEMORANDUM OPINION on motion for reconsideration. Signed by Judge R David Proctor on 4/1/2021. Associated Cases: 2:18-cv-01121-RDP, 2:19-cv-00923-RDP, 2:19-cv-01507-RDP(KAM)

FILED
2021 Apr-01 PM 03:42
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JOHN CHRISTOPHER COVEY,
Plaintiff,
v.
COLONIAL PIPELINE COMPANY, et
al.,
Defendants.

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HUGH GERALD DELAUGHDER, JR., et }
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al.,
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Plaintiffs,
}
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v.
}
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COLONIAL PIPELINE COMPANY, et
}
al.,
}
}
Defendants.

BEVERLY KAY WILLINGHAM,
Individually and as Administratrix of the
Estate of ANTHONY LEE
WILLINGHAM, deceased,
Plaintiffs,
v.
COLONIAL PIPELINE COMPANY, et
al.,
Defendants.

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Case No.: 2:18-CV-01121-RDP

Case No.: 2:19-CV-923-RDP

Case No.: 2:19-CV-01507-RDP

MEMORANDUM OPINION
Before the court is a Motion for Reconsideration and/or Clarification filed by Glenda G.
Cochran and Glenda Cochran Associates, LLC (collectively, “Cochran”). (Doc. # 141). In that
Motion, Cochran requests the court to revisit its January 25, 2021 Memorandum Opinion and
Order (Docs. # 124, 125) and (1) reconsider whether attorney’s fees were warranted as a sanction
against her because there was no finding that she acted in bad faith and (2) clarify that she did not
receive work product of such a nature that would require her disqualification. (Doc. # 141). In its
response to Cochran’s Motion to Reconsider (id.), Defendant L.E. Bell filed an alternative Motion
to Reconsider Order Declining to Disqualify Cochran in which L.E. Bell requests the court modify
its January 25, 2021 Memorandum Opinion and Order (Docs. # 124, 125) and disqualify Cochran.
(Doc. # 148). Those Motions have been briefed and are ripe for consideration. (Docs. # 141, 148,
149).
I.

Standard of Review
“A motion to reconsider is only available when a party presents the court with evidence of

an intervening change in controlling law, the availability of new evidence, or the need to correct
clear error or manifest injustice.” Summit Medical Center of Alabama, Inc. v. Riley, 284 F. Supp.
2d 1350, 1355 (M.D. Ala. 2003); see Fox v. Tyson Food, Inc., 2007 WL 6477624, at *1 (N.D. Ala.
Aug. 31, 2007) (same). The grant or denial of a motion to reconsider is left to the discretion of the
district court. See Chapman v. AI Transport, 229 F.3d 1012, 1023-24 (11th Cir. 2000). However,
reconsideration is “an extraordinary remedy which must be used sparingly.” Jackson v. Wesley,
2011 WL 2144696, *1 (M.D. Fla. May 31, 2011); see Garrett v. Stanton, 2010 WL 320492, *2
(S.D. Ala. 2010) (quoting Gougler v. Sirius Products, Inc., 370 F. Supp. 2d 1185, 1189 (S.D. Ala.
2005)) (“In the interests of finality and conservation of scarce judicial resources, reconsideration
of an order is an extraordinary remedy and is employed sparingly.”). As other courts have
2

acknowledged:
Far too often, litigants operate under the flawed assumption that any adverse ruling
... confers upon them license to move for reconsideration, vacatur, alteration or
amendment as a matter of course, and to utilize that motion as a platform to criticize
the judge’s reasoning, to relitigate issues that have already been decided, to
champion new arguments that could have been made before, and otherwise to
attempt a “do-over” to erase a disappointing outcome. This is improper.
Garrett, 2010 WL 320492 at *2.
II.

Analysis
The court held oral argument on these Motions, along with L.E. Bell’s Motion to Certify

Questions Regarding Standards for Disqualification for § 1292(b) Appeal (Doc. # 136), on March
23, 2021. Although, ultimately, both motions are due to be denied because they lack merit, upon
further review of the record and after considering events in the parallel state proceedings and the
arguments raised at the March 23, 2021 hearing, the court finds it necessary to revisit the sanctions
it imposed on Cochran. (Docs. # 124, 125).
A.

Cochran’s Request for Reconsideration

Cochran first asserts that the court erred in its January 25, 2021 Memorandum Opinion and
Order (Docs. # 124, 125) because the court sanctioned Cochran without finding that Cochran acted
in bad faith. (Doc. # 141 at 4-9). According to Cochran, a federal court cannot sanction a litigant
without first finding that litigant acted in bad faith. (Id.). As support for this proposition, Cochran
cites only to cases in which a litigant was sanctioned under either the court’s inherent powers or
18 U.S.C. § 1927.1 See, e.g., Hyde v. Irish, 962 F.3d 1306, 1310 (11th Cir. 2020) (“A sanctions
motion under either a court’s inherent powers or § 1927 requires a showing that the party acted in
bad faith.”); Thomas v. Tenneco Packaging Co., 293 F.3d 1306, 1320 (11th Cir. 2002) (citations

The text of 28 U.S.C. 1927 permits courts to sanction attorneys who “multipl[y] the proceedings in any case
unreasonably and vexatiously.”
1

3

omitted) (“Hence, before a court can impose sanctions against a lawyer under its inherent power,
it must find that the lawyer’s conduct ‘constituted or was tantamount to bad faith.’”); Hernandez
v. Acosta Tractors Inc., 898 F.3d 1301, 1306 (11th Cir. 2018) (stating that before sanctioning a
party pursuant to its inherent authority, a court “must make a finding that the sanctioned party
acted with subjective bad faith.”).
To be clear, in sanctioning Cochran, the court relied on neither its inherent power nor
§ 1927. Federal Rule of Civil Procedure 83 and 28 U.S.C. § 2071 each provide authority for federal
courts to adopt local rules for the proper administration of judicial business. See Zambrano v. City
of Tustin, 885 F.2d 1473, 1479 (9th Cir. 1989). And, pursuant to Local Rule 83.1(f), attorneys
appearing before this court are governed by the Alabama Rules of Professional Conduct
(“Alabama Rules”) to the extent the Alabama Rules are not inconsistent with the court’s local
rules. Therefore, in a case involving an alleged violation of the Alabama Rules, it is the text of the
Alabama Rules that governs the applicable standard — not a bad faith standard imposed by
common law. See, e.g., Matter of Hawk, 2016 WL 7157977, at *9 (N.D. Ga. Dec. 6, 2016)
(citations omitted) (“Importantly, [Georgia] Rule 5.3 does not require that an attorney be aware of
his or her assistant’s misconduct because violations of this rule rest on the lawyer’s supervisory
failures, not upon participation in or knowledge of the assistant’s misconduct. Thus, a lawyer may
violate [Georgia] Rule 5.3 through negligent supervision.”).
The court’s opinion concluded that Cochran violated Alabama Rules 4.4(a), 4.4(b), and
5.3(b) by obtaining confidential information subject to the work-product privilege. (Doc. # 124).
As such, the language of those rules determines the applicable ethical standard. And, the language
in none of those rules imposes a bad-faith standard. See Alabama Rule 4.4(a) (barring attorneys
from “us[ing] means that have no substantial purpose other than to embarrass, delay, or burden a

4

third person, or us[ing] methods of obtaining evidence that violate the legal rights of such a
person”); Alabama Rule 4.4(b) (requiring any “lawyer who receives a document that on its face
appears to be subject to the attorney-client privilege or otherwise confidential[ ] and who knows
or reasonably should know that the document was inadvertently sent [to] promptly notify the
sender”); Alabama Rule 5.3(b) (requiring a lawyer who has “direct supervision” over a nonlawyer
to make “reasonable efforts to ensure that the [nonlawyer]’s conduct is compatible with the
professional obligations of the lawyer”).2 Therefore, with regard to the first issue, Cochran has
failed to show “an intervening change in controlling law, the availability of new evidence, or the
need to correct clear error or manifest injustice.” Summit Medical Center of Alabama, Inc., 284 F.
Supp. 2d at 1355.3
Cochran next requests that the court “(1) [specify] exactly what information that … was
actually shared by Barker with Cochran, and (2) [clarify] that [information] did not include
anything that qualifies as the type of ‘confidential’ work product that would give Cochran any
unfair advantage in this litigation or otherwise require her disqualification.” (Doc. # 141 at 10).
The rationale and nature of the two clarification requests are essentially the same — in
light of Defendant L.E. Bell’s petition for mandamus (currently pending before the Eleventh
Circuit) in which L.E Bell asserts the court applied the wrong legal standard in its January 25,
2021 Memorandum Opinion and Order (Docs. # 124, 125), Cochran believes that the court could

2

In reviewing an ethical rule similar to Alabama Rule 4.4(a), at least one court has concluded the applicable
standard is one of due care. See Calise v. Brady Sullivan Harris Mills, LLC, No. 18-9WES, 2019 WL 1397245, at *9
(D.R.I. Mar. 28, 2019) (concluding a rule similar to Alabama Rule 4.4(a) imposes “an affirmative duty to proceed
with due care”).
3
Along similar lines, Cochran cites a line of cases holding “inadvertent exposure to work product can rarely,
if ever, serve as the basis for disqualification.” (Doc. # 141 at 15-17). Not only do these cases have little bearing on
this matter (because the court did not disqualify Cochran), these cases are also irrelevant because Cochran’s exposure
to work product was brought about, not by inadvertence, but rather by her negligence in failing to act with due care.
(Doc. # 124 at 20-21).

5

preempt “any confusion on the part of the Eleventh Circuit” by acknowledging that her ethical
violations were de minimis. (Doc. # 141 at 10).4 But, in doing so, Cochran repeats the same
arguments she made in her briefing on the disqualification motion (e.g., Barker testified he did not
share any confidential information, no harm occurred because Cochran already knew the causation
theories that Barker shared with her, Barker developed causation theories of his own accord). (Id.
at 9-18). As other courts have noted, such an attempt “to relitigate issues that have already been
decided … is improper.” Garrett, 2010 WL 320492, at *2.
But, Cochran’s arguments would fail regardless. Although Barker testified he “would not
have told [ ] Cochran … [ ] what [an attorney for L.E. Bell] said at any point,” (Doc. # 116-15 at
187:25-188-2), whether Barker, a non-lawyer, stated he did not provide Cochran with information
he discussed with attorneys is not determinative of whether Barker did, in fact, provide Cochran
with information protected by work-product privilege.5 And, whether Cochran developed
causation theories before meeting with Barker is irrelevant to whether L.E. Bell was prejudiced by
Cochran being able to confirm L.E. Bell’s litigation strategy.6 Lastly, Barker’s involvement with
L.E. Bell’s legal team is more extensive than asserted by Cochran in her Motion to Reconsider. As

Cochran maintains that these clarifications would also help “avoid protracted wrangling over discovery as
now threatened by L.E. Bell.” (Doc. # 141 at 10). But, Cochran does not explain how the court clarifying the extent
and nature of Cochran’s ethical violations in the past could help the parties with discovery disputes in the future.
Furthermore, to be clear to all parties, there will not be any protracted wrangling over discovery in this case.
4

5
Cochran also argues she was not exposed to any material protected by work-product privilege because
“there is no evidence that Barker ever attributed any of the various ‘causation theories’ to counsel for L.E. Bell (or
any other counsel).” But, the work-product doctrine protects work product created by non-attorneys at the direction
of an attorney. See 8 Wright & Miller, Fed. Prac. & Proc. Civ. § 2024 (3d ed. 2010) (stating that despite the text of
Rule 26(b)(3), the work-product privilege doctrine “continues to furnish protection for work product within its
definition that is not embodied in tangible form”); United States v. Nobles, 422 U.S. 225, at 238-39 (1975) (“It is
therefore necessary that the doctrine protect material prepared by agents for the attorney as well as those prepared by
the attorney himself.” (footnote omitted)). To the extent that Barker developed the causation theories at the request of
L.E. Bell’s legal team, those causation theories are protected by work-product privilege.
6

As noted in the Memorandum Opinion, any prejudice appears nonexistent (or, at most, minimal) because
the information was incomplete, L.E. Bell had not yet incorporated any purported causation theories into a trial
strategy, and Cochran is not adverse to L.E. Bell in any pending fault-based litigation. (Doc. # 124 at 21).

6

stated in the Memorandum Opinion: “Not only did Barker work with L.E. Bell in gathering and
analyzing facts later provided to OSHA and the NTSB, he also worked with L.E. Bell’s legal
counsel, employees of L.E. Bell, and outside consultants to develop theories of what caused the
explosion and who might be legally responsible.” (Doc. # 124 at 4). Because Cochran’s legal
arguments are without merit, she has failed to show the necessary “need to correct clear error or
manifest injustice.” Summit Medical Center of Alabama, Inc., 284 F. Supp. 2d at 1355.
For all these reasons, Cochran’s request for reconsideration is due to be denied.
B.

L.E. Bell’s Request for Reconsideration

L.E. Bell’s request that the court reconsider Cochran’s disqualification fares no better. L.E.
Bell maintains that the court’s factual findings in its January 25, 2021 Memorandum Opinion and
Order (Doc. # 124) required the court to disqualify Cochran. (Doc. # 148 at 18-24). L.E. Bell
repeats the same arguments that it has raised before: (1) the pertinent disqualification standard for
Alabama Rule 4.4, as set forth in Martinez v. Cty of Antelope, Nebraska, 2016 WL 3248241 (D.
Neb., June, 13, 2016), requires disqualification; (2) Alabama Rules 1.9(a) and 5.3(b) require
disqualification if a party improperly obtains information protected by work-product privilege; and
(3) prejudice is presumed whenever a party improperly obtains information protected by workproduct privilege. (Doc. # 148 at 18-24).
Because the court has already rejected all of these arguments, L.E. Bell’s attempt “to
relitigate issues that have already been decided … is improper.” Garrett, 2010 WL 320492, at *2.
But, as with Cochran’s motion to reconsider, L.E. Bell’s arguments fail regardless as a matter of
law.
Precedent, both binding and persuasive, clearly holds that violation of an ethical rule does
not require a court to grant a disqualification motion; indeed, whether disqualification is

7

appropriate depends on the underlying violation. See Herrmann v. GutterGuard, Inc., 199 F. App’x
745, 752 (11th Cir. 2006) (applying Florida law) (quoting Norton v. Tallahassee Mem’l Hosp.,
689 F.2d 938, 941 n.4 (11th Cir. 1982)) (“A disqualification order is a harsh sanction, often
working substantial hardship on the client and should therefore be resorted to sparingly.”) (internal
quotation marks omitted); Norton, 689 F.2d at 941 (acknowledging that a violation of Canon 9 of
Florida’s Code of Professional Responsibility should not automatically give rise to
disqualification); Clark v. Alfa Ins. Co., 2001 WL 34394281, at *3 (N.D. Ala. Feb. 7, 2001) (“Upon
[finding a party violated an applicable rule of conduct], the court may then, considering binding
and persuasive federal case law, decide whether or not the ethical lapse warrants
disqualification.”); Nuri v. PRC, Inc., 5 F. Supp. 2d 1299, 1304 (M.D. Ala. 1998) (citations
omitted) (“[V]iolations come in varying degrees of severity, but disqualification is always a drastic
measure, which courts should hesitate to impose except when absolutely necessary.”). A review
of the record shows disqualifying Cochran here is too harsh a remedy. The January 25, 2021
Memorandum Opinion and Order (Docs. # 124, 125) concluded that Cochran violated the Alabama
Rules by receiving confidential work product from Barker and by not taking remedial steps to
remedy that receipt as well as by hiring Barker as a consultant without taking “reasonable efforts”
to ensure that consulting relationship conformed to the ethical obligations of the profession. But,
the court found those ethical violations were not due to bad faith and caused L.E. Bell minimal -if any -- prejudice. (Doc. # 125 at 19-21). Cochran testified (and it is undisputed) that she took
some steps to ensure that she did not learn confidential information from Barker, including by
expressly telling him not to tell her anything that L.E. Bell’s lawyers had said in his presence.
(Doc. # 119-2 ¶ 25-26). Although such measures were ultimately insufficient with regard to workproduct privilege, those measures evidenced an intent to abide by the Alabama Rules and not an

8

intent to harm L.E. Bell or any other party to this litigation. And, as repeatedly pointed out by the
court, Cochran has no pending claims against L.E. Bell other than those raised in the no-fault
worker’s compensation case pending in state court. In light of the record, L.E. Bell has failed to
provide the court with a compelling reason for Cochran’s disqualification. See In re BellSouth
Corp., 334 F.3d 941, 961 (11th Cir. 2003) (“Because a party is presumptively entitled to the
counsel of his choice, that right may be overridden only if ‘compelling reasons’ exist.”).
L.E. Bell’s last point is that prejudice must be assumed whenever counsel for a party
obtains confidential information from another party. (Doc. # 148 at 21-24). Like L.E. Bell’s other
points, the court has already considered and rejected this argument. (Doc. # 125 at 19 n.13). In
instances where a party wrongfully obtains confidential information, courts within this circuit have
often looked to whether the party originally in possession of that information incurred prejudice
to determine appropriate sanctions. See, e.g., Nuri, 5 F. Supp. 2d at 1305. L.E. Bell has not
provided the court with any convincing reason to deviate from this case law and presume prejudice.
For all these reasons, L.E. Bell’s request for reconsideration is due to be denied.
C.

The Sanctions Imposed on Cochran are Due to be Revisited

Based upon the arguments advanced during the March 23, 2021 hearing and also in
consideration of Judges Moore and Conwill’s rulings on these matters, the court finds it necessary
to revisit the monetary sanctions imposed on Cochran by the January 25, 2021 Memorandum
Opinion and Order (Docs. # 124, 125). Though Judges Moore and Conwill adopted a portion of
the court’s January 25, 2021 Memorandum Opinion, they did not adopt the part of the Order that
relates to sanctions. See Webster v. Colonial Pipeline Co., No. 58-CV-2017-901175 (Shelby Cty.
Ct. Ala.) (Doc. # 587); Gentry v. Colonial Pipeline Co., No. 58-CV-2018-900789 (Shelby Cty. Ct.
Ala.) (Doc. # 159); Wright v. Colonial Pipeline Co., No. 58-CV-2018-901017 (Shelby Cty. Ct.

9

Ala.) (Doc. # 149). Judges Moore and Conwill are obviously very conversant with the Alabama
Rules. So, their partial adoption of the court’s Memorandum Opinion and Order has encouraged
the court to review its analysis.7 In particular, the court believes its analysis under Alabama Rules
1.9(a) and 5.3(b) is in need of revision. The court reconsiders this issue sua sponte. See Cook v.
Campbell, 2008 WL 2039487, at *2 (N.D. Ala. May 12, 2008) (citing Lavespere v. Niagara
Machine & Tool Works, 910 F.2d 167, 185 (5th Cir. 1990)) (“The rule in Lavespere permits the
court ‘to reconsider and reverse’ an interlocutory order ‘for any reason it deems sufficient, even in
the absence of new evidence or an intervening change in or clarification of the substantive law.’”).
Under Alabama Rule 5.3(b), a lawyer who has “direct supervision” over a nonlawyer must
make “reasonable efforts to ensure that the [nonlawyer]’s conduct is compatible with the
professional obligations of the lawyer.” In other words, Alabama Rule 5.3(b) requires lawyers to
ensure that nonlawyers under their supervision comply with the Alabama Rules. In its Amended
Motion to Disqualify, L.E. Bell argued that Cochran violated Rule 5.3(b) by failing to ensure that
Barker complied with Alabama Rule 1.9(a), which governs conflicts of interests. (Doc. # 116-1 at
48-50). And, under Alabama Rule 1.9(a), a lawyer who has formally represented a client may not
“[r]epresent 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, unless the former client
consents after consultation.” L.E. Bell claimed that Barker, through his work on the L.E. Bell legal
team, was barred from assisting Cochran under Alabama Rule 1.9(a) and that Cochran violated

At the hearing, counsel for L.E. Bell seemed to assert that Judges Moore and Conwill “rubber-stamped”
this court’s analysis. For example, counsel noted that Judges Moore and Conwill have not had an opportunity to review
the entire record, particularly the sealed portions of it. However, the court believes that its January 25, 2021
Memorandum Opinion and Order (Docs. # 124, 125) adequately and accurately portrayed the entire record in this
case. Furthermore, a review of the Orders filed by Judges Moore and Conwill partially adopting the January 25, 2021
Memorandum Opinion shows Judges Moore and Conwill “reviewed the pleadings of record in the [state] cases and
the pleadings of record in [the] related cases before [Judge Proctor].” Webster, No. 58-CV-2017-901175 (Doc. # 587
at 1); Gentry, No. 58-CV-2018-900789 (Doc. # 159 at 1); Wright, No. 58-CV-2018-901017 (Doc. # 149 at 1).
7

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Alabama Rule 5.3(b) by failing to ensure that Barker complied with Alabama Rule 1.9(a). (Id.).
The court determined that “Barker’s involvement in developing causation and liability
theories for L.E. Bell [ ] exposed him to confidential information protected by work-product
privilege” and “[b]ecause of that exposure, [Alabama] Rule 1.9(a) therefore prohibit[ed] Barker
from assisting Cochran.” (Doc. # 125 at 17-18). The court further determined that Cochran violated
Alabama Rule 5.3(b) by failing to take reasonable efforts “to ensure that Barker was not violating
[Alabama] Rule 1.9(a) or any other Rule by working for her as a consultant.” (Id. at 18).
In making those determinations, the court assumed without actually deciding that L.E. Bell
and Cochran were materially adverse for purposes of Alabama Rule 1.9(a). The parties did not
brief the issue of material adversity. (Docs. # 116-1, 119, 120).8 But, L.E. Bell placed great
emphasis on this point at oral argument. After considering the arguments raised at the hearing
conducted on March 23, 2021, the court now concludes: (1) L.E. Bell and Cochran’s representation
of Delaughder are not materially adverse under Alabama Rule 1.9(a), (2) Cochran did not violate
Alabama Rule 5.3(b) by hiring Barker and learning causation theories from him, and (3) the court
should revisit the issue of sanctions imposed on Cochran by the court’s January 25, 2021
Memorandum Opinion and Order (Docs. # 124, 125).
Like other statutes and texts, interpreting Alabama Rule 1.9(a) begins with the text. Where
the text is clear (such as in this matter) that analysis ends. See Ross v. Blake, 136 S. Ct. 1850, 1856
(2016) (citation omitted) (“Statutory interpretation, as we always say, begins with the text.”); Singh
v. United States Attorney General, 945 F.3d 1310, 1314 (11th Cir. 2019) (citation omitted) (“Our
analysis begins and ends with the statutory text.”). “[M]aterial advers[ity]” under Alabama Rule

In tailoring sanctions to Cochran’s actions, the court expressly acknowledged “[a]lthough Cochran obtained
work product from another party to the litigation, that work product was not that of an adverse party.” (Doc. # 125 at
20).
8

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1.9(a) requires more than a vague assertion that parties might be adverse or could become adverse
at some point in the future; the text of Alabama Rule 1.9(a) requires that the party being sanctioned
represent a client with interests “materially adverse to the interests of the former client.” See Ewing
v. Moore, No. 7:17-cv-00743-LSC, 2018 WL 1886700, at *1 (N.D. Ala. Apr. 19, 2018)
(“[Moveants] must then show that the current matter is substantially related and materially adverse
to [the former client’s] interests.” (emphasis added)); Herrmann, 199 F. App’x at 753 (“The second
step in determining whether [nonmoveant] has violated [Georgia] Rule 1.9(b) is deciding whether
the interests of the clients in the former and present representations are materially adverse.”).
L.E. Bell has advanced three theories for why its interests are materially adverse to
Cochran’s interests and, as a result of that material adversity, how it could incur prejudice.9 None
of those theories hold merit.
First, L.E. Bell has argued that “Barker’s disclosure of L.E. Bell’s causation theories to
Cochran confirmed what her opponent’s discovery and trial strategy would be.” (Doc. # 120-1 at
24). But, L.E. Bell’s argument assumes that L.E. Bell and Cochran are, in fact, opponents. That is
simply not the case. Cochran only has one suit pending against L.E. Bell — a no-fault worker’s
compensation suit. Under Alabama law, in accordance with the Alabama Worker’s Compensation
Act, § 25-5-1 et seq., Ala. Code 1975, “an employer must pay compensation for, and provide
medical benefits as to, its employee's injury that is caused by ‘an accident arising out of and in the
course of [his or her] employment’ without regard to the negligence of the employer or the
employee.’” Ex Parte Patton, 77 So.3d 591, 593 (Ala. 2011) (quoting Brown v. Patton, 77 So.3d
587, 589 (Ala. Civ. App. 2009)). Because the Alabama Worker’s Compensation Act is a no-fault

9
Because prejudice often results from parties being materially adverse, the two concepts are intertwined. For
purposes of determining whether L.E. Bell is materially adverse to Cochran, however, the court will also consider
L.E. Bell’s arguments as to how it could incur prejudice.

12

statute, anything Cochran has learned of L.E. Bell’s causation theories (i.e., theories as to who is
at fault) is irrelevant to her only pending suit against L.E. Bell.10 For this reason, Cochran’s
pending worker’s compensation lawsuit fails to establish material adversity.11
Second, L.E. Bell has asserted that Cochran has “been de facto serving as lead counsel for
the plaintiffs in the Colonial Pipeline Cases” and that, as a result of that alleged role, Cochran
could leak confidential information or use that information to the detriment of L.E. Bell. (Doc. #
69 at 2-3). According to L.E. Bell, Cochran’s interactions with other counsel in this consolidated
litigation could cause prejudice to L.E. Bell (and potentially qualify as material adversity). The
court finds this argument unconvincing. As an initial matter, the court will not attribute material
adversity to Cochran solely because counsel for the various Plaintiffs are suing L.E. Bell and
coordinating discovery with her. The court has confirmed that Cochran has not leaked any
information from Barker to other counsel. And, there is no doubt good reason for that. Any leak
that would help counsel in other cases to pin culpability on L.E. Bell would actually work against
Cochran and her client’s interests. Cochran and her client seek to prove entities other than L.E.
Bell are responsible for the pipeline explosion. Helping other counsel establish L.E. Bell’s

At the hearing, counsel for L.E. Bell made the puzzling assertion that Cochran may try to assert L.E. Bell’s
negligence in the worker’s compensation action. But, despite being questioned by the court, L.E. Bell’s counsel could
not provide the context in which that might occur or how it could, in any way, shape, or form, affect the worker’s
compensation action.
10

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In the alternative, the court rejects this argument because Cochran’s worker’s compensation suit is not
“substantially related” under Rule 1.9(a) to any action where Barker’s work with L.E. Bell’s legal team (and the
causation theories developed through that work) could become legally relevant. “When determining whether prior and
present matters are substantially related, the focus of the court’s inquiry “‘should be on the precise nature of the
relationship between the present and former representations.’” Herrmann, 199 F. App’x at 752 (quoting Duncan v.
Merrill Lynch, 646 F.2d 1020, 1029 (5th Cir. Unit B 1981), overruled on other grounds, Gibbs v. Paluk, 742 F.2d 181
(5th Cir. 1984)). “[T]he [substantial relationship] test entails inquiry into the similarity between the factual situations,
the legal issues posed, and the nature and extent of the attorney’s involvement to see if information from the prior
representation is material to the new representation.” Ex parte Regions Bank, 914 So.2d 843, 848 (Ala. 2005)
(quotations omitted). Because the legal issues posed in Cochran’s worker’s compensation suit differ from the legal
issues arising in the cases in which L.E. Bell’s causation theories could become relevant, the court concludes this
argument fails to satisfy Alabama Rule 1.9(a)’s standard.

13

culpability would in that instance work against her.12 Moreover, this attribution theory fails for the
simple reason that there is no indication Cochran has “leaked” any knowledge she obtained from
Barker to counsel for the other Plaintiffs or used that information in any nefarious fashion.13 At
the March 23, 2021 hearing, the court directed counsel for the various Plaintiffs to inform the court
whether they had any conversations with Cochran regarding her interactions with Barker — the
indication from each officer of the court was that no such conversations had occurred.
Lastly, at the hearing, counsel for L.E. Bell argued that L.E. Bell is materially adverse to
Cochran because L.E. Bell has an indemnity agreement with Colonial Pipeline by which L.E. Bell
must indemnify Colonial Pipeline except in cases of gross negligence. (See Doc. # 71-1 at 12).
L.E. Bell argued that because Cochran is materially adverse to Colonial Pipeline in Delaughder v.
Colonial Pipeline Co., 19-cv-923 (N.D. Ala.), the indemnity agreement between L.E. Bell and
Colonial Pipeline means that Cochran must also be materially adverse to L.E. Bell. As support for
this argument, L.E. Bell referenced a case from the District of Connecticut in which a court
analyzed “counsel[’s] [prior] represent[ation of] the movant’s parent or affiliate company.”
Colorpix Sys. of Am. v. Broan Mfg. Co., Inc., 131 F. Supp. 2d 331, 336 (D. Conn. 2001). But, that
case is wholly inapposite. Affiliate companies, in some situations, have interests so similar to one
another that representing a company may evoke a “vicarious” attorney-client relationship for
affiliate companies. See id. L.E. Bell and Colonial Pipeline have no such parent-subsidiary or
affiliate relationship. The two companies do not share similar management personnel or a legal
department; nor does one company supervise the other’s litigation. See id. at 336-37 (concluding

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These federal cases are consolidated and in each case claims related to the same pipeline explosion have
been made; therefore, there is a substantial possibility that they will be tried together. Cochran and Delaughder are
suing Colonial Pipeline and Superior Land Designs LLC.
The court’s January 25, 2021 Memorandum Opinion and Order (Docs. # 124, 125) also prohibited Cochran
from retaining any documents she received from Barker and from discussing with anyone the contents of her
conversation with Barker until the conclusion of this litigation.
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these factors weigh against a finding that a party is a “vicarious client” of his opposing counsel).
And, as counsel for Cochran pointed out at the hearing, Cochran’s interests are aligned with L.E.
Bell’s interests; Cochran is seeking to establish Colonial Pipeline acted with gross negligence,
which would absolve L.E. Bell of liability under the indemnification agreement. The existence of
an indemnity agreement between L.E. Bell and Colonial Pipeline, in combination with Cochran’s
suit against Colonial Pipeline, does not establish material adversity under Alabama Rule 1.9(a).
Accordingly, because Cochran is not materially adverse to L.E. Bell, the court concludes
that Cochran has not violated Alabama Rule 5.3(b). Because Cochran’s only ethical violation
relates to Alabama Rules 4.4(a) and 4.4(b) (and her failure to take action after receiving an
annotated report), the sanctions given in the court’s January 25, 2021 Order are therefore in need
of revision.
III.

Conclusion
Accordingly, Cochran’s Motion for Reconsideration and/or Clarification (Doc. # 141) and

L.E. Bell’s motion requesting the court modify its January 25, 2021 Memorandum Opinion and
Order (Docs. # 124, 125) and disqualify Cochran (Doc. # 148) are due to be denied. Although the
financial sanctions imposed by the court’s January 25, 2021 Order (Doc. # 125) are due to be
revisited for all of the reasons described above, because L.E. Bell has indicated it will continue to
challenge the decision not to disqualify Cochran, it would be premature to go forward with an
analysis of any such financial sanctions now. Thus, the court’s determination of appropriate
financial sanctions is due to be stayed.
A separate Order will be entered.

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DONE and ORDERED this April 1, 2021.

_________________________________
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE

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