Murray v. Nationwide Better Health et al
Filing
124
OPINION by U.S. Magistrate Judge Byron Cudmore: Plaintiff's Motion to Show Cause as to why Defendant is interfering with, and Exercising Control over Plaintiff's Witness and Providing them Legal Advice with no Legal Agreement 85 ALLOWED in part and DENIED in part. See written order. (LB, ilcd)
E-FILED
Monday, 27 June, 2011 04:15:30 PM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
SHARON MURRAY,
Plaintiff,
v.
NATIONWIDE BETTER
HEALTH, et al.,
Defendants.
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No. 10-CV-3262
OPINION
BYRON G. CUDMORE, U.S. MAGISTRATE JUDGE:
This matter comes before the Court on Plaintiff Sharon Murray’s
Motion To Show Cause As To Why Defendant is interfering with, and
Exercising Control over Plaintiff’s Witness and Providing Them Legal
Advice With No Legal Agreement (d/e 85) (Motion). For the reasons set
forth below, the Motion is ALLOWED in part and DENIED in part.
The Motion raises two issues: (1) the appropriate mailing address for
defense counsel and (2) the propriety of defense counsel’s contacts with
non-parties Gaye Ann Pusch and Nancy Wells. The Court will address the
mailing address issue first, and then the matter of contacting non-parties.
Murray complains about conflicting information regarding defense
counsel’s mailing address. Murray has attached to her Motion a notice
Page 1 of 6
from the Post Office indicating that an envelope was returned that Murray
had sent to defense counsel Elizabeth McDuffie by certified mail at 35 E.
Wacker Drive in Chicago, Illinois. The Court docket lists defense
counsel’s address as Gonzales Saggio & Harlan LLP, Suite 500, 35 East
Wacker Drive, Chicago, IL 60601. Murray has also attached to her Motion
an e-mail in which defense counsel McDuffie stated to Murray, in part, “You
have used the Prudential Plaza address the entire time for this case.”
Defendants have submitted evidence that Murray has mailed material to
attorney McDuffie at Gonzalez, Saggio and Harlan LLC, Two Prudential
Plaza 180 N. Stetson Ave Suite 4525, Chicago, Illinois 60601 (Prudential
Plaza Address). Declaration of Sinthia Von Ohlen (d/e 89).
To avoid further confusion, the Court directs that mailings to defense
counsel shall be addressed to defense counsel Elizabeth A. McDuffie (or, if
appropriate the other attorney of record Philip S. Holloway) at the address
of record on the docket in the Court file. Currently that address is:
Gonzales Saggio & Harlan LLP,
Suite 500
35 East Wacker Drive
Chicago, IL 60601
Should defense counsel prefer the Prudential Plaza Address (or some
other address), counsel must notify Murray and the Clerk of the Court in
writing of a change of address.
Page 2 of 6
Murray next complains that defense counsel improperly interfered
with Pusch and Wells and improperly gave Pusch and Wells legal advice.
Murray served deposition subpoenas on Pusch and Wells. Wells’
deposition was set for June 6, 2011, and Pusch’s deposition was set for
June 9, 2001. Subpoenas to Wells and Pusch (d/e 61 and 63).
Defendants filed a motion to quash the subpoenas, which the Court
allowed in part and denied in part. Opinion entered June 9, 2011 (d/e 94).
While the motion to quash was pending, defense counsel McDuffie sent the
following e-mail to Murray,
Ms. Murray:
As you are aware, Defendants have filed a motion to quash the
subpoenas issued to Ms. Pusch and Ms. Wells. Thus, they will
not be appearing next week for depositions. If you have any
questions, please contact me.
Liz McDuffie.
Motion, attached E-mail sent June 2, 2011, at 3:46 pm. Wells and Pusch
did not appear for the depositions on June 6th and 9th. Murray complains
that McDuffie improperly interfered with Pusch and Wells and improperly
gave Pusch and Wells legal advice. The Court disagrees.
McDuffie could properly speak directly to non-parties such as Pusch
and Wells. Murray refers to Pusch and Wells as her witnesses. That is
correct only in the sense that Murray served a subpoena on them to appear
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at a deposition. Pusch and Wells have no other current relationship to
Murray. As such, Murray, Defendants, and defense counsel could contact
Pusch and Wells directly and speak to them. Pusch and Wells could
choose whether or not to speak to either party or counsel. Defense
counsel, thus, did nothing improper by contacting Pusch and Wells and
informing them that Defendants were filing motions to quash the deposition
subpoenas. Pusch and Wells could then decide whether to appear. The
fact that Pusch and Wells elected not to appear does not, by itself, indicate
that defense counsel did anything more than contact these non-party
deponents.
Murray argues, however, that McDuffie did not just contact Pusch
and Wells, she gave them legal advice and improperly represented Pusch
and Wells. McDuffie denies that she represented Pusch and Wells or gave
them legal advice. Defendants’ Response to Plaintiff’s Motion [d/e 85] to
Show Cause as to Why Defendant is Interfering with, and Exercising
Control over Plaintiff’s Witness and Providing Them Legal Advice with No
Legal Agreement (d/e 119) (Response), at 2. The e-mail quoted above
provides some support for Murray’s belief that McDuffie represented Pusch
and Wells. The e-mail states that Pusch and Wells will not appear at their
depositions because of the pending motion to quash and directs Murray to
contact McDuffie if she has any questions. The e-mail is brief and does not
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state McDuffie’s relationship to Pusch and Murray, if any. The fact that
McDuffie notified Murray that Pusch and Wells would not appear and
stated that Murray should contact McDuffie if Murray had questions,
however, could indicate that McDuffie was representing Pusch and Wells.
Defendants have now stated in their Response that defense counsel does
not represent Pusch and Wells, but the e-mail could have left Murray with
the opposite impression.1
Even if defense counsel represented Pusch and Wells, however,
Murray presents no evidence indicating any impropriety. Again, parties
and counsel may contact non-parties such as Pusch and Wells. The
non-parties may elect to speak with counsel, one party, both parties, or
none of them. Defense counsel may also represent a party and non-party
as long as there is no conflict of interest or the conflict is properly waived.
Murray quotes in her motion Illinois Rules of Professional Conduct 1.7, 1.8,
and 1.9 concerning conflicts of interest. All of these rules state that a
conflict arises if the representation of one party (such as Pusch or Wells)
would adversely affect the representation of the other party (such as the
Defendants). Murray makes no showing that Pusch and Wells are adverse
to any of the Defendants. Thus, at this point, Murray makes no showing of
any impropriety even if defense counsel also represented Pusch and Wells.
1
Murray also argues that McDuffie’s e-mail indicated that Defendants controlled
Pusch and Wells. The Court disagrees. At best, the e-mail gave the impression that
McDuffie represented Pusch and Wells, as well as the Defendants.
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Again, McDuffie states that defense counsel does not represent Wells and
Pusch, but at this point, nothing indicates that such representation would
not be improper.
Murray also asks for detailed explanation and summary of the
communications between defense counsel and Pusch and Wells. The
Court sees no basis to enter such an order. The unprivileged
communications between defense counsel and Pusch and Wells may be
subject to discovery to the extent relevant. Murray may, therefore, seek
this information through appropriate discovery procedures and has no need
of a court order at this time.
WHEREFORE, Plaintiff Sharon Murray’s Motion To Show Cause As
To Why Defendant is interfering with, and Exercising Control over Plaintiff’s
Witness and Providing Them Legal Advice With No Legal Agreement
(d/e 85) is ALLOWED in part and DENIED in part. The Court directs that
mailings to defense counsel shall be addressed to defense counsel at the
address of record on the docket in the Court file. Should defense counsel
prefer some other address, defense counsel must notify Murray and the
Clerk of the Court in writing of a change of address. The Motion is
otherwise denied.
ENTER:
June 27, 2011
s/ Byron G. Cudmore
BYRON G. CUDMORE
UNITED STATES MAGISTRATE JUDGE
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