Wilson Road Development Corporation et al v. Fronabarger Concreters, Inc. et al

Filing 297

MEMORANDUM AND ORDER re: 181 MOTION for Protective Order and to Strike Dale Guariglia, Esq. from Plaintiffs' Witness List filed by Defendant Fronabarger Concreters, Inc. IT IS HEREBY ORDERED that defendant's motion to strike D ale Guariglia from plaintiffs' witness list and for a protective order [Doc. #181] is granted. IT IS FURTHER ORDERED that plaintiffs are prohibited from calling Dale Guariglia as a witness at trial. Signed by District Judge Carol E. Jackson on 1/21/15. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
WILSON ROAD DEVELOPMENT
CORPORATION, et al.,
Plaintiffs,
vs.
FRONABARGER CONCRETERS, INC.,
et al.,
Defendants.

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Case No. 1:11-CV-00084-CEJ

MEMORANDUM AND ORDER
This matter is before the Court on the motion of defendant Fronabarger
Concreters, Inc., to strike its attorney from plaintiffs’ witness list and for a
protective order preventing plaintiffs from calling its attorney to testify at trial. The
issues are fully briefed.
I.

Background

On August 11, 2014, the Court severed plaintiffs’ common law claims for
negligence, nuisance, and trespass against defendant Fronabarger from plaintiffs’
claims against Fronabarger and the other defendants (and the cross-claims and
counterclaims)

for

alleged

violations

of

the

Comprehensive

Environmental

Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. § 9601, et seq. A
jury trial on the common law claims was scheduled for August 18, 2014. On August
12, 2014, however, in response to a new report by the United States Environmental
Protection Agency (EPA), the Court removed the case from the trial docket and
reopened limited discovery pertinent to the findings in that report. The Court reset
the jury trial for February 17, 2015.

On July 21, 2014, plaintiffs filed a witness list, which includes seventeen
witnesses that plaintiffs “will call to testify” at the jury trial and/or the bench trial
and thirty additional witnesses that plaintiffs “may call to testify.” [Doc. #180]
Among the seventeen witnesses that plaintiffs will call to testify is Dale Guariglia,
Fronabarger’s attorney. In response, Fronabarger filed two motions to strike certain
witnesses from plaintiffs’ witness list and for protective orders preventing plaintiffs
from calling those proposed witnesses to testify at the jury trial. First, Fronabarger
filed a motion to strike twenty-eight of plaintiffs’ proposed witnesses, including
Guariglia, because those witnesses were never identified in plaintiffs’ Rule 26
disclosures. [Doc. #179] The Court addresses that motion in a separate order.
Second, Fronabarger filed a motion to strike Guariglia from plaintiffs’ witness list
and for a protective order preventing plaintiffs from calling him to testify at the jury
trial because he is Fronabarger’s counsel in this case. [Doc. #181]
II.

Legal Standard

While no rule prohibits a party from calling opposing counsel as a witness at
trial, “[t]he practice of forcing trial counsel to testify as a witness . . . has long been
discouraged.” Shelton v. Am. Motors Corp., 805 F.2d 1323, 1327 (8th Cir. 1986).
In Shelton, the Eighth Circuit ruled that a party is forbidden from deposing
opposing counsel, except where the party seeking the deposition proves that “(1)
no other means exist to obtain the information than to depose opposing counsel;
(2) the information sought is relevant and nonprivileged; and (3) the information is
crucial to the preparation of the case.” Id. (internal citation omitted). By logical
extension, the Shelton rule also applies to determine whether an opposing counsel
may be called as a witness at trial. The Shelton rule must apply with at least equal

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force at trial because, inter alia, many states’ rules of professional conduct require
that, absent special circumstances, an attorney is disqualified from acting as trial
counsel whenever she or he is a necessary witness.1 Therefore, good cause exists
both to strike the opposing counsel from the witness list and to issue a protective
order preventing the party from calling the opposing counsel to testify unless that
party produces evidence to satisfy each of the three prongs of the Shelton rule.
III.

Discussion

Here, plaintiffs have not met their burden to show that no other means exist
to obtain the information that they seek. Id. Plaintiffs seek Guariglia’s testimony
about certain communications between him and the EPA regarding the superfund
site that is the subject of this lawsuit. Fronabarger counters that, rather than calling
Guariglia to testify at trial, plaintiffs can call the EPA’s representative to testify
about those communications. Plaintiffs respond that the EPA representative with
whom Guariglia communicated, Barbara Peterson, is no longer assigned to matters
involving the site, and that the “EPA has indicated that it will not make its
representative available to testify.” [Doc. #220, at 3] However, plaintiffs have
provided no evidence that the EPA has refused to allow its representative to testify.
Moreover, plaintiffs have not shown that Peterson is unavailable to testify about her
communications with Guariglia.
Plaintiffs explain that it will not be necessary to call Guariglia or Peterson at
trial if the Court grants one of their pending motions in limine, which seeks to
exclude any mention of Guariglia’s communications with the EPA from the trial.
1

For example, Mo. S. Ct. R. Prof’l Conduct 4-3.7 requires as follows:
A lawyer shall not act as advocate at a trial 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.

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Regardless of whether the Court grants that motion, however, plaintiffs have not
demonstrated that no other means exist to obtain the information about those
communications. Therefore, plaintiffs have failed to satisfy the first prong of the
Shelton rule.
Accordingly,
IT IS HEREBY ORDERED that defendant’s motion to strike Dale Guariglia
from plaintiffs’ witness list and for a protective order [Doc. #181] is granted.
IT IS FURTHER ORDERED that plaintiffs are prohibited from calling Dale
Guariglia as a witness at trial.

CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 21st day of January, 2015.

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