MARSH SUPERMARKETS, INC. v. MARSH

Filing 120

ORDER granting Plaintiff's 113 Motion for Reconsideration of nonparty David A. Marsh's motion for protective order, and the limited disqualification previously ordered 112 is nullified. Baker & Daniels may therefore depose David on behalf of Marsh Supermarkets, Inc. Signed by Magistrate Judge Tim A. Baker on 6/3/2011. (MAC)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

MARSH SUPERMARKETS, INC.,
Plaintiff,
vs.
DON E. MARSH,
Defendant.

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1:09-cv-0458-SEB-TAB

ORDER GRANTING PLAINTIFF’S MOTION FOR RECONSIDERATION
Motions for reconsideration allow for relief under limited circumstances. This motion
presents one such circumstance.
On May 20, 2011, this Court disqualified Baker & Daniels from deposing nonparty
David A. Marsh, finding that David’s prior estate planning work with Baker & Daniels is
substantially related to his proposed deposition in this case, and that David did not unreasonably
delay in seeking disqualification. [Docket No. 112.] Marsh Supermarkets, Inc. (“the
Company”) now seeks reconsideration, relying on new facts calling into question the conclusion
that David did not unreasonably delay in seeking disqualification. [Docket No. 113 at 1–2.] The
facts now before the Court demonstrate that David knew a potentially serious conflict existed
since August 2010, but failed to raise this conflict until March 14, 2011. [Id.] Accordingly, the
Company requests that this Court reconsider whether David waived his right to disqualify Baker
& Daniels. [Docket Nos. 112, 113.]
In the Seventh Circuit, “[a] motion to disqualify should be made with reasonable
promptness after a party discovers the facts which lead to the motion.” Leathermon v.
Grandview Mem’l Gardens, Inc., No. 4:07-cv-137-SEB-WGH, 2010 WL 1381893, at *12 (S.D.

Ind. Mar. 31, 2010) (quoting Kafka v. Truck Ins. Exch., 19 F.3d 383, 386 (7th Cir. 1994)).
Deciding whether a party’s delay waives its right to seek disqualification requires the Court to
“balance the policy of preserving former client confidences with that of allowing parties their
freedom to choose their legal counsel.” KnowledgeAZ, Inc. v. Jim Walter Res., Inc., No. 1:05cv-1019-RLY-WTL, 2007 WL 2258731, at *5 (S.D. Ind. Aug. 3, 2007).
As discussed in this Court’s previous order, this is a close case [Docket No. 112] and
close cases often hinge on factual nuances. David now admits in his response brief that he
waited until three days before his March 2011 deposition to seek to disqualify Baker & Daniels, even
though he knew about the conflict in August 2010. [Docket No. 116 at 2–3.] Previously, the
only reason that this Court found it reasonable for David to seek disqualification in August
2010—rather than during his 2006 litigation with the Company—was because more was at stake
when the IRS became involved in August 2010. [Docket No. 112 at 2, 5–6.] But it now turns
out, contrary to his prior assertion [Docket No. 102 at 2], that David did not raise the conflict in
August 2010 when the IRS came into the picture. [Docket No. 113, Ex. A.] Instead, he waited
until March 2011. [Id.] This new factual scenario provides a proper basis for this Court to
depart from its prior conclusion.
David’s counsel argues that she was not aware of the conflict until three days before the
March 2011 deposition after a “refreshed review of the B&D Invoices.” [Docket No. 116 at 2, ¶
5.] However, counsel’s failure to adequately review the invoices for a conflict when she
received them does not provide a sufficient justification for the delay. Even without a proper
review of the invoices, David knew about his prior relationship with Baker & Daniels. See
Exterior Sys., Inc. v. Noble Composites, Inc., 175 F. Supp. 2d 1112, 1122 (N.D. Ind. 2001) (“A

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former client’s ability to seek disqualification of its adversary’s attorney can be waived if the
former client knew of its attorney’s representation . . . but failed to raise its objection
promptly.”). The Company’s reply brief sets forth a compelling litany of undisputed facts that
depict an unreasonably delayed response by David. [Docket No. 117 at 2–3.]
Plaintiff’s motion to reconsider order on nonparty David A. Marsh’s motion for
protective order [Docket No. 113] is granted, and the limited disqualification previously ordered
[Docket No. 112] is nullified. Baker & Daniels may therefore depose David on behalf of Marsh
Supermarkets, Inc.

Dated: 06/03/2011

_______________________________
Tim A. Baker
United States Magistrate Judge
Southern District of Indiana

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Copies to:
Linda Joy Cooley
KRIEG DEVAULT, LLP
[e-mail]
Winthrop James Hamilton
BOSE MCKINNEY & EVANS, LLP
[e-mail]
David K. Herzog
BAKER & DANIELS - Indianapolis
[e-mail]
Ryan Michael Hurley
BAKER & DANIELS - Indianapolis
[e-mail]
Andrew M. McNeil
BOSE MCKINNEY & EVANS, LLP
[e-mail]
C. Joseph Russell
KRIEG DEVAULT LLP
[e-mail]
Munjot Sahu
BAKER & DANIELS - Indianapolis
[e-mail]
Emily L. Yates
BOSE MCKINNEY & EVANS, LLP
[e-mail]

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