WATKINS v. TRANS UNION , LLC
Filing
64
ORDER denying Cento's 35 Second Motion for Leave to Conduct Discovery. Signed by Magistrate Judge William G. Hussmann, Jr., on 6/22/2015. (NRN)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
RICHARD WATKINS,
Plaintiff,
v.
TRANS UNION, LLC,
Defendant.
)
)
)
)
)
)
)
)
)
2:14-cv-135-JMS-WGH
ENTRY ON CENTO’S SECOND MOTION
FOR LEAVE TO CONDUCT DISCOVERY
This matter is before me, William G. Hussmann, Jr., United States
Magistrate Judge, on Attorney G. John Cento’s Second Motion for Leave to
Conduct Discovery (Filing No. 35) and Judge Magnus-Stinson’s referral of
March 2, 2015. The parties have briefed the issue. (See Filing No. 35; Filing
No. 46; Filing No. 47.) Having considered their submissions and relevant law,
and being duly advised, I DENY Cento’s motion at this time, subject to
reconsideration after Judge Magnus-Stinson determines whether further
evidence will be heard in this matter. (See Filing No. 57.)
I.
Background
On August 7, 2014, Judge Magnus-Stinson ordered Plaintiff’s counsel,
John Cento, to “show cause as to why he should not be disqualified from
representing Plaintiff against Defendant pursuant to Indiana Rule of
Professional Conduct 1.9 and the rationale set forth in” three recent District
Court orders concerning Cento’s eligibility to litigate against his former client,
Trans Union. (Filing No. 13.) To facilitate Cento’s response, I granted Cento
leave to depose Trans Union’s Division General Counsel, Denise Norgle. (See
Filing No. 32 at ¶¶ 7–9.)
In that deposition, Norgle testified that former Trans Union employee
Eileen Little would not play any role in this litigation because she is deceased.
(Filing No. 49 at ECF p. 8.) Cento later confirmed that Little passed away in
2011. (Filing No. 48-13.)
Norgle’s revelation bears on Cento’s motion because of two recent
decisions in Indiana’s federal courts. See Childress v. Trans Union, LLC
(Childress II), No. 1:12-cv-184-TWP-DML, 2013 WL 1828050 (S.D. Ind. Apr. 30,
2013) (affirming Magistrate Judge’s order (Childress I), 2012 WL 6728339 (S.D.
Ind. Dec. 28, 2012)); Hobson v. Trans Union, LLC, No. 1:13-cv-54-JD-RBC,
Filing No. 63 (N.D. Ind. Nov. 21, 2013).1 Both courts disqualified Cento from
litigating against Trans Union, but both contemplated that he could do so once
staffing turnover would render whatever confidential information he gained
through his past work for Trans Union unrelated to current litigation. See
Childress I, 2012 WL 6728339, at *5; Childress II, 2013 WL 1828050, at *5;
Hobson, Filing No. 9-4 at ECF pp. 13–14. Therefore, Cento could reasonably
wonder whether Little’s death might preclude disqualification in this case—and
1
Judge Cosbey’s order has not been published, but Trans Union attached it to its
motion seeking a show-cause order. (See Filing No. 9-4.) I cite Hobson as paginated
therein (e.g., Hobson, Filing No. 9-4 at ECF p. xx).
2
whether it might have precluded disqualification in Childress and Hobson had
it been revealed sooner.
Cento now seeks to depose attorneys Will Brown and Bob Schuckit,
whose firm has represented Trans Union in Childress, Hobson, and this case.
(See Filing No. 35 at ECF pp. 7–8.) His motion suggests—and seeks to confirm
on the record—that Brown and Schuckit knew of Little’s death during the
Childress and Hobson litigation but wrongly concealed material facts.
II.
Legal Standard
A party is entitled to discover from his adversary “any nonprivileged
matter that is relevant to any party’s claim or defense . . . .” Fed. R. Civ. P.
26(b)(1). At trial, evidence is relevant if it has “any tendency” to make a
material fact more or less probable. Fed. R. Evid. 401. But even inadmissible
evidence is discoverable so long as it “appears reasonably calculated to lead to
the discovery of admissible evidence.” Fed. R. Civ. P. 26(b)(1). Conversely, the
Court “must limit the frequency or extent of discovery” if its “burden or expense
. . . outweighs its likely benefit” considering, among other factors, “the
importance of the discovery in resolving the issues.” Fed. R. Civ. P.
26(b)(2)(C)(iii).
Indiana Rule of Professional Conduct 3.3 addresses an attorney’s duty to
be candid with the courts in which she practices.2 In pertinent part, it directs
2
Rule 1.9 applies to this case because this Court has ordered that attorneys who
practice before this Court will honor the Indiana Rules of Professional Conduct. See
S.D. Ind. L.R. 83-5(e) (“The Indiana Rules of Professional conduct . . . govern the
conduct of those practicing in the court.”).
3
that an attorney shall not knowingly “make a false statement of fact or law to a
tribunal or fail to correct a false statement of material fact or law previously
made to the tribunal by the lawyer.” Ind R. Prof’l Conduct 3.3(a)(1). The duty
to correct false statements supersedes an attorney’s duty to maintain her
client’s confidences. See Ind. R. Prof’l Conduct 3.3(c).
Commentary to Rule 3.3 clarifies the lawyer’s duty of candor as it applies
in this case:
“[A]n assertion purporting to be on the lawyer’s own knowledge,
as in an affidavit by the lawyer or in a statement in open court,
may be properly made only when the lawyer knows the
assertion is true or believes it to be true on the basis of a
reasonably diligent inquiry.” Ind. R. Prof’l Conduct 3.3[3].
“There are circumstances where failure to make a disclosure is
the equivalent of an affirmative misrepresentation.” Id.
An attorney bears an “obligation as an officer of the court to
prevent the trier of fact from being misled by false evidence.”
Ind. R. Prof’l Conduct 3.3[5].
III.
A “lawyer must not allow the tribunal to be misled by false
statements of law or fact or evidence that the lawyer knows to
be false.” Ind. R. Prof’l Conduct 3.3[2].
The attorney’s duty of candor supersedes concern for even
“grave consequences to the client” because “the alternative is
that the lawyer cooperate in deceiving the court, thereby
subverting the truth-finding process which the adversary
system is designed to implement.” Ind. R. Prof’l Conduct
3.3[11].
Discussion
Although Cento’s request is well-taken, I must deny his motion on
practical grounds. I can conceive of only four purposes for which Cento might
depose Brown and Schuckit:
4
(1) Compile evidence that would aid the Court in determining
whether to disqualify Cento.
(2) Compile evidence to ask for reconsideration of the decisions in
Childress and Hobson.
(3) Compile evidence to demonstrate that Brown and Schuckit have
violated Rule 3.3.
(4) Harass or embarrass Brown and Schuckit.
Among these, the sole permissible purpose would be the first. Discovery
should be conducted under the oversight of a judge presiding over the case,
and neither Childress nor Hobson is on my docket. This Court does not
investigate attorney misconduct. And, harassment and embarrassment are
impermissible objectives for discovery requests. Fed. R. Civ. P. 26(g)(1)(B)(ii).
Deposition testimony from Brown and Schuckit could aid the Court in
deciding disqualification. As I explained in my Report and Recommendation on
the issue, Trans Union’s treatment of Little’s death raises credibility questions
that pervade the disqualification analysis. (See Filing No. 57 at ECF pp. 11–
13.) Testimony from Schuckit and Brown would shed some light on those
questions.
But the parties have briefed that issue, and I have issued my Report and
Recommendation to Judge Magnus-Stinson. Accordingly, the burden and
expense of this deposition (particularly given its entanglement with the
attorney-client privilege) would outweigh any imminent benefit. If Judge
Magnus-Stinson accepts my recommendation to collect further evidence before
deciding disqualification, I invite Cento to renew this motion.
5
IV.
Conclusion
For the foregoing reasons, I DENY Cento’s motion.
SO ORDERED this 22nd day of June, 2015.
Served electronically on all ECF-registered counsel of record.
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?