STILE v. SOMERSET COUNTY et al

Filing 268

ORDER denying 234 Motion to Disqualify Defense Counsel; denying 234 Motion for Oral Argument/Hearing. By MAGISTRATE JUDGE JOHN C. NIVISON. (CWP)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE

JAMES STILE,
Plaintiff,
v.
SOMERSET COUNTY, et al.,
Defendants.

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1:13-cv-00248-JAW

ORDER ON PLAINTIFF’S MOTION TO DISQUALIFY DEFENSE COUNSEL
(ECF No. 234)
The matter is before the Court on Plaintiff’s renewed request that the Court disqualify
defense counsel, Peter Marchesi and Cassandra Shaffer. Plaintiff contends that disqualification is
warranted because counsel trained Defendants on the use of force, and because counsel tampered
with evidence regarding four DVDs that contained video footage. (ECF No. 234.)
As explained below, following a review of Plaintiff’s motion and after consideration of the
parties’ arguments, the Court denies the motion.
Background
In this action, Plaintiff alleges, inter alia, that Defendants, most of whom are or were
corrections officers employed at the Somerset County Jail, subjected Plaintiff to excessive force
during Plaintiff’s pretrial detention in the jail. As part of his claim, Plaintiff asserts that Defendant
Somerset County is legally responsible for the deprivation of his constitutional rights as the result
of the County’s failure to train the individual Defendants on the use of force.

On May 21, 2015, the Court denied Plaintiff’s motion to remove defense counsel. (ECF
No. 226.) Plaintiff’s renewed request, captioned as a supplemental memorandum, is in effect a
motion for reconsideration. The relevant facts follow.
In the past, using a lecture format with a Power Point presentation, counsel have trained
some or all of the Defendants. Through discovery, counsel have provided to Plaintiff a collection
of slides used in the Power Point presentation. The information reflects that counsel trained
Defendants on liability prevention, the difference between Defendants’ obligations to pretrial
detainees and their obligations to convicted inmates, and the need for a corrections officer to
maintain emotional control when interacting with inmates. (See PageID # 1518.)
In addition, according to Plaintiff, four of the DVDs produced to him in discovery, which
DVDs contained “the most violent videos of cell extractions” ever supplied to Plaintiff through
discovery, “were never intended to be given to the Plaintiff.” (PageID # 1525.) In support of this
argument, Plaintiff cites that the four DVDs, unlike the other DVDs disclosed in discovery, were
not Bates stamped.1 (Id.) Plaintiff contends that because other video recordings of “worse”
treatment have never surfaced and because the four DVDs were not stamped, counsel and
Defendants have suppressed discoverable evidence. (Id.) Plaintiff plans to call counsel as
witnesses in this action to address training and to establish a record to support his contention that
Defendants engaged in evidence suppression and tampering.
Defendants argue that testimony from counsel is not necessary, that the nature and content
of any training can be established through other witnesses and evidence, and that disqualification
at this date would impose a hardship on Defendants. (Objection to Plaintiff’s Second Motion for

Alternatively, Plaintiff’s theory is that counsel omitted Bates stamps to prevent Plaintiff from introducing in evidence
at trial the video recordings on the DVDs. Plaintiff does not explain how video evidence produced by Defendants in
discovery would be inadmissible at trial simply because of the omission of Bates stamps.
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Removal of Defense Counsel Wheeler & Arey, P.A. at 2 – 3, 4, ECF No. 240.) As to Plaintiff’s
allegation of evidence tampering, Defendants assert that whether a document has a Bates stamp is
immaterial, and that Defendants produced the DVDs when Plaintiff requested them in discovery
in this case.2 (Id. at 3 – 4.) Defendants alternatively request that in the event the Court views
Plaintiff’s request favorably, the Court permit counsel to remain on the case through summary
judgment. (Id. at 4, citing Culebras Enter. Corp. v. Rivera–Rios, 846 F.2d 94, 101 (1st Cir. 1988)).
Discussion
Disqualification of counsel by court order “is almost never cut-and-dried.” In re Bushkin
Assocs., Inc., 864 F.2d 241, 246 (1st Cir. 1989). The district court has “wide discretion” and the
determination “ordinarily turns on the peculiar factual situation of the case then at hand.” Id.
(quoting Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 377 (1981)). Various
circumstances may give rise to a need to consider disqualification motions. By way of example,
the First Circuit has observed:
It may be necessary, for instance, to assess the degree to which a lawyer’s presence
might taint the trial; the court’s need to protect the integrity of the judicial process,
enforce its rules against transgressors, and maintain public confidence in the legal
profession; the litigants’ interest in retaining counsel of their choosing; and the
availability and relative efficiency of other sanctions.
Id. A particular concern arises when a party intends to call counsel as a witness at trial.
The principal ethical considerations to a lawyer testifying on behalf of his client
regarding contested issues are that the client’s case will “be presented through the
testimony of an obviously interested witness who is subject to impeachment on that
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In June 2012, Plaintiff commenced in Maine Superior Court a proceeding under Rule 27 of the Maine Rules of Civil
Procedure. (Petition for Discovery, ECF No. 240-2.) On April 18, 2013, the undersigned, while serving as a justice
of the Maine Superior Court, entered an order dismissing the petition, noting, inter alia, that Plaintiff was then a party
to a federal action and that, therefore, his assertion that he could not bring a civil action without discovery under Rule
27 was unavailing. (Decision and Order, ECF No. 240-1.) It is therefore unsurprising that Plaintiff should have
received the four DVDs for the first time on December 13, 2013, in connection with his discovery requests in this
case, commenced July 1, 2013. Moreover, the fact that Attorney Shaffer’s only DVD production on that date was
limited to the four DVDs in question tends to undermine Plaintiff’s suggestion that the disclosure of these particular
DVDs was not intended, or his contention that the DVDs were produced pursuant to Plaintiff’s state court petition for
discovery. (Letter enclosing discovery responses, ECF No. 240-3.)
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account; and that the advocate is, in effect, put in the unseemly position of arguing
his own credibility.”
Siguel v. Allstate Life Ins. Co., 141 F.R.D. 393, 396 (D. Mass. 1992) (quoting ABA Comm. on
Ethics and Professional Responsibility, Formal Op. 339 (1975)). “When the attorney is called to
the stand by his client’s opponent, the concerns are just as substantial, if not more.” Ahern v.
Scholz, 85 F.3d 774, 791 (1st Cir. 1996) (noting Model Rule of Professional Conduct 3.7). In
either situation, there is a “danger that the performance of the dual roles of counsel and witness
will create confusion on the jury’s part …, ‘raising the possibility of the trier according testimonial
credit to [counsel]’s closing argument,’ … or, conversely, weighing the testimony as if it were
argument.” Ahern, 85 F.3d at 792 (quoting United States v. Johnston, 690 F.2d 638, 643 (7th Cir.
1982)).3
As the proponent of disqualification, Plaintiff must demonstrate that the testimony of
counsel is necessary in his case. John Wiley & Sons, Inc. v. Book Dog Books, LLC, __ F. Supp.
3d ___, No. 1:13-cv-00816, 2015 WL 5172842, at *6 (S.D.N.Y. Sept. 4, 2015); Morin v. Me. Educ.
Ass’n, 2010 ME 36, ¶ 10, 993 A.2d 1097, 1100. The mere assertion that the testimony would be
relevant to an issue in the case is insufficient. Adrion v. Knight, No. 1:07-cv-11277, 2008 WL

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Maine Rule of Professional Conduct 3.7, which addresses the circumstances under which a lawyer involved in a case
can serve as a witness, is consistent with the model rule. The Rule provides in pertinent part:
(a) A lawyer shall not act as advocate at a tribunal in which the lawyer is likely to be a necessary witness unless:
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal services rendered in the case; or
(3) disqualification of the lawyer would work substantial hardship on the client.
….
Me. R. Prof. Conduct 3.7(a).

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5111084, at *3 (D. Mass. Dec. 4, 2008). To succeed, he must prove that the proposed testimony
is “relevant, material, not merely cumulative, and unobtainable elsewhere.” Id. In addition to
proving that the testimony is necessary, Plaintiff must show that denying him the opportunity to
elicit the testimony would prejudice his case. John Wiley & Sons, 2015 WL 5172842, at *7 – 8;
Morin, 2010 ME 36, ¶ 10, 993 A.2d at 1100. When evaluating a request for disqualification, a
court must be “mindful that motions for disqualification are ‘capable of being abused for tactical
purposes, and … justifiably wary of this type of strategic maneuvering.’” Morin, ¶ 8 (quoting
Casco N. Bank v. JBI Assocs., 667 A.2d 856, 859 (Me. 1995)).
In this case, Plaintiff’s contention that counsel’s testimony is necessary on the training
issue is unconvincing. To the extent that the nature and substance of Defendants’ training are
pertinent to Plaintiff’s claims, Plaintiff can present relevant evidence from a variety of other
sources, including testimony of Defendants, testimony of other jail and county personnel, and the
training-related documents produced in discovery. Counsel’s testimony, at most, would be
cumulative. In addition, Plaintiff has presented no persuasive record evidence to support his
assertion that counsel tampered with any evidence.
Conclusion
Based on the foregoing analysis, the Court denies Plaintiff’s request for oral argument, and
denies Plaintiff’s motion to disqualify defense counsel (ECF No. 234).
CERTIFICATE
Any objections to this Order shall be filed in accordance with Fed.R.Civ.P. 72.

/s/ John C. Nivison
U.S. Magistrate Judge
Dated this 30th day of October, 2015.

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