Jo Ann Howard and Associates, P.C. et al v. Cassity et al
MEMORANDUM AND ORDER. (see order for details) IT IS HEREBY ORDERED that Plaintiff Jo Ann Howard & Associates, P.C.'s Motion to Disqualify Jack Spooner as Counsel for the Wittner Defendants, [ECF No. 842 ], is GRANTED. Spooner is disqualified f rom further representation of the Wittner Defendants in this case. The Clerk's Office shall terminate Spooners entry immediately. Witter Defendants shall employ new counsel within twenty (20) days of this Order. IT IS FURTHER ORDERED that Defend ant Brown Smith Wallace's Motion for a Protective Order, or, in the Alternative, to Amend the July 22, 2011 Consent Protective Order, [ECF No. 821 ] is DENIED. However, the Court invites the parties to confer and develop a mutually agreeable Consent Protective Order to submit for the Court's consideration. Signed by Honorable E. Richard Webber on 04/13/2012. (CBL)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
JO ANN HOWARD &
ASSOCIATES, P.C., et al.,
J. DOUGLAS CASSITY, et al.,
Case No. 4:09CV01252 ERW
MEMORANDUM AND ORDER
This matter comes before the Court on: (1) Plaintiff Jo Ann Howard & Associates, P.C.’s
Motion to Disqualify Jack Spooner as Counsel for the Wittner Defendants, [ECF No. 842]; and (2)
Defendant Brown Smith Wallace’s Motion for a Protective Order, or, in the Alternative, to Amend
the July 22, 2011 Consent Protective Order, [ECF No. 821]. The Court held a hearing on these
Motions on March 28, 2012.
PLAINTIFF JO ANN HOWARD & ASSOCIATES, P.C.’S MOTION TO
DISQUALIFY JACK SPOONER AS COUNSEL FOR THE WITTNER
DEFENDANTS. [ECF No. 842].
Plaintiff Jo Ann Howard & Associates, P.C. (Plaintiff) has been appointed to serve as the
Special Deputy Receiver (SDR) of three companies: National Prearranged Services, Inc. (NPS);
Lincoln Memorial Life Insurance Co. (Lincoln); and Memorial Service Life Insurance Co. (Memorial)
(collectively, the Receivership Entities). In the instant case, Plaintiff, in its capacity as the SDR of
the Receivership Entities, has asserted claims such as breach of fiduciary duty, legal malpractice,
gross negligence, and others, against Defendant Wittner, Spewak & Maylack, P.C. and/or Howard
A. Wittner (collectively, the Wittner Defendants). Pls.’ Second. Amended Compl. ¶¶ 229-45, 302-06,
353-64, 365-71, 372-78, 420-29, 430-36, [ECF No. 594]. On February 21, 2012, Jack Spooner
entered his appearance as counsel for the Wittner Defendants. [ECF No. 828]. Approximately one
week later, all other counsel of record for the Wittner Defendants moved to withdraw from the
representation. [ECF No. 836; ECF No. 837]. The Court granted these Motions, with the result that
Spooner alone was counsel of record for the Wittner Defendants. [ECF No. 838]. Plaintiff now
moves to disqualify Spooner as counsel for the Wittner Defendants. Pls.’ Mot. to Disqualify
Spooner, [ECF No. 842].
Motions to disqualify opposing counsel are subject to the discretion of the district court.
Petrovic v. Amoco Oil Co., 200 F.3d 1140, 1154 (8th Cir. 2000). “[B]ecause motions to disqualify
counsel in federal proceedings are substantive motions affecting the rights of the parties, they are
decided by applying standards developed under federal law.” Dalton v. Painters Dist. Council No.
2, no. 4:10CV01090 AGF, 2011 WL 1344120, at *4 (E.D. Mo. April 8, 2011). Under federal law,
a party seeking to disqualify opposing counsel bears a heavy burden. Macheca Transp. Co. v. Phila.
Indem. Co. 463 F.3d 827, 833 (8th Cir. 2006). “A party's right to select its own counsel is an
important public right and a vital freedom that should be preserved[.]” Id. In addition, motions to
disqualify may be abused by opposing counsel in pursuit of a tactical advantage. Id. As a result,
courts subject motions to disqualify to “particularly strict scrutiny,” and “the extreme measure of
disqualifying a party's counsel of choice should be imposed only when absolutely necessary.” Id.
Even so, “any doubt is to be resolved in favor of disqualification.” Coffelt v. Shell, 577 F.2d 30, 32
(8th Cir. 1978); see also Dalton, no. 4:10CV01090 AGF, 2011 WL 1344120, at *4.
Plaintiff argues that because Spooner has previously represented the Receivership Entities in
various matters, he is barred under the Court’s Rules of Professional Conduct from representing the
Wittner Defendants in the instant case. Plaintiffs rely upon Rule 4-1.9(a) of the Missouri Rules of
A lawyer who has formerly represented a client in a matter shall not thereafter
represent another person in the same or a substantially related matter in which that
person's interests are materially adverse to the interests of the former client unless the
former client gives informed consent, confirmed in writing.
Mo Sup. Ct. R. 4-1.9(a); see also E.D. Mo. L.R. 12.02 (adopting the Missouri Rules of Professional
Conduct). This Rule “protects the client's interest in both loyalty and confidentiality.” Griffen by
Freeland v. E. Prairie, Mo. Reorganized Sch. Dist. No. 2, 945 F. Supp. 1251, 1253 (E.D. Mo. 1996)
(citing In re American Airlines, Inc., 972 F.2d 605, 618 (5th Cir. 1992)). In addition, it promotes
fundamental fairness by barring an attorney from using an informational advantage gained in the
course of a former representation, and it serves the important policies of encouraging client disclosure
of all pertinent information and fostering confidence in the integrity of the judicial system. Dalton,
no. 4:10CV01090 AGF, 2011 WL 1344120, at *5.
There is no dispute here that Spooner has previously represented at least some of the
Receivership Entities, that the interests of the Receivership Entities and the Wittner Defendants are
materially adverse, and that the Receivership Entities have not consented in writing to Spooner’s
representation. Thus, the parties dispute three points: (1) whether Spooner personally represented
the Receivership Entities; (2) whether Plaintiff is a “former client” within the meaning of Rule 41.9(a); and (3) whether Spooner’s former representation of the Receivership Entities and current
representation of the Wittner Defendants are substantially related.
1. Whether Spooner personally represented the Receivership Entities
Plaintiffs argue that Spooner has personally represented the Receivership Entities in numerous
cases over many years. Plaintiffs’ primarily rely upon Spooner’s appearance as counsel of record for
NPS in Hanover Life Reassurance Co. of Am. v. Sutton, et. al, no. 4:07-cv-01434 JCH (E.D. Mo.)
and a related arbitration action. A review of those matters shows that Spooner appeared on the
docket and in filings as counsel for NPS. Pl.’s Mot. to Disqualify Spooner Ex. 1, [ECF No. 842-1].
Plaintiff has also submitted billing records showing that Spooner’s representation of NPS was
substantial and involved a wide variety of legal work. Pl.’s Reply Ex. 1-A, [ECF No. 850-2].
Various records also show that for those matters, Spooner both attended depositions and personally
deposed witnesses. Pl.’s Reply Ex. 1-B, [ECF No. 850-3]. Plaintiffs have also presented evidence
that Spooner served as counsel for Lincoln and NPS in several other matters. Pls.’ Mot. to Disqualify
Spooner Ex. 1. Based on this evidence, the Court finds that Spooner has personally represented the
2. Whether Plaintiff is a “former client” within the meaning of Rule 4-1.9(a)
Rule 4-1.9(a) prevents an attorney from representing a person, when that person has adverse
interests to one of the attorney’s former clients. Here, Spooner has not previously represented
Plaintiff, but instead has previously represented NPS and Memorial. As a result, the Court must
decide whether Plaintiff, based on its status as SDR, may seek to disqualify Spooner’s representation
of the Wittner Defendants as a violation of Rule 4-1.09(a). Neither party presented the Court with
any authority that squarely resolves this issue, and the Court found no such authority after conducting
independent research. Nevertheless, a review of the relevant case law makes clear that Plaintiff may
seek to disqualify Spooner.
The Court’s analysis of Plaintiff’s Motion to Disqualify begins with the United States Supreme
Court decision of Commodity Futures Trading Comm’n v. Weintraub, 471 U.S. 343 (1985). In that
case, the issue presented was “whether the trustee of a corporation in bankruptcy has the power to
Because the Court finds that Spooner personally represented the Receivership Entities,
the Court rejects the Wittner Defendants’ contention that the Plaintiff’s Motion be analyzed under
Mo. Sup. Ct. R. 4-1.9(b). Rule 4-1.9(b) bars a lawyer from representing a person as a result of
that lawyer’s prior affiliation with a firm who represented clients with adverse interests to that
person. This Rule is inapplicable here, because it was not merely Spooner’s former law firm, but
instead Spooner himself who previously represented the Receivership Entities.
waive the debtor corporation's attorney-client privilege with respect to communications that took
place before the filing of the petition in bankruptcy.” Id. at 345. The Court noted that “for solvent
corporations, the power to waive the corporate attorney-client privilege rests with the corporation's
management,” so that “when control of a corporation passes to new management, the authority to
assert and waive the corporation's attorney-client privilege passes as well.” Id. at 348. Because a
corporation’s management controls its privilege outside of the bankruptcy context, the Court
concluded that the actor who held duties most analogous to management should also control its
privilege during bankruptcy. Id. at 351-52. The Court then noted that when a corporation enters
bankruptcy, its trustee acquires wide-ranging powers, including the power to manage its property,
to manage its financial affairs, to pursue its legal claims, and to operate its business. Id. at 352 (citing
and discussing provisions of the Bankruptcy Code). Based in large part upon these powers, the Court
held “that the trustee of a corporation in bankruptcy has the power to waive the corporation's
attorney-client privilege with respect to prebankruptcy communications.” Id. at 358.
Lower courts have stated that Weintraub “reflects a continuity of the attorney-client
relationship” without regard to a corporation’s bankruptcy status. In re Peck Foods, 196 B.R. 434,
438 (Bankr. E.D. Wis. 1996); see also In re Successor I Corp., 321 B.R. 640, 652 (Bankr. S.D.N.Y.
2005) (“that the attorney-client privilege of a corporation continued after the process of liquidation
has begun is a necessary predicate for” Weintraub). As a result, when an attorney has represented
a corporation before it entered bankruptcy, the courts have disqualified that attorney from
representing defendants adverse to the corporation in its bankruptcy proceedings. In re Successor
I Corp., 321 B.R. 640, 654, 663; In re Jaeger, 213 B.R. 578, 594 (Bankr. C.D. Cal. 1997); In re
Marks v. Goergens, Inc., 199 B.R. 922, 929 (Bankr. E.D. Mich. 1996); see also In re Peck Foods,
196 B.R. 434, 440 (court denied approval of attorney’s representation of defendant, when that
attorney previously represented corporation); In re Rodriguez, no. 10-05835 BKT, 2012 WL 112971,
at *4 (Bankr. D. P.R. Jan. 12, 2012) (“... if the trustee is pursuing claims of the debtor under to
Section 541 [of the Bankruptcy Code], the trustee stands in the shoes of the debtor.”); In re Estates
of Dublin Secs., Inc., 214 B.R. 310, 314 (Bankr. S.D. Ohio 1997) (attorney who had previously
represented corporation disqualified under a distinct Rule from representing defendant with adverse
interests). Courts have disqualified an attorney under the applicable equivalent to Rule 4-1.9(a), even
though the party moving for disqualification was the bankruptcy trustee or a similarly interested party,
rather than the corporation itself. In re Successor I Corp., 321 B.R. 640, 654, 663; In re Jaeger, 213
B.R. 578, 594; In re Marks & Goergens, Inc., 199 B.R. 922, 929.
In the instant case, Plaintiff’s duties and obligations as the Receivership Entities’ SDR place
it in a position similar to that of the bankruptcy trustees described above. For instance, Plaintiff’s
authority arises from the Texas Insurer Receivership Act, and that Act gives SDRs broad powers to
manage the property, business operations, and legal claims of entities placed under receivership. Tex.
Code Ann. § 443.001 et seq.; id. § 443.154. Furthermore, it is clear that Plaintiff may exercise those
broad powers in pursuit of its duties here. Pls’ Second Amended Compl. Ex. 3, [ECF No. 594-3];
Speaks Family Legacy Chapels, Inc. v. Nat’l Heritage Enters., Inc., no. 2:08-cv-04148-NKL, 2009
WL 3855685, at *1 (W.D. Mo. Nov. 18, 2009) (describing authority and powers granted to SDR of
NPS, Lincoln, and Memorial). Plaintiff is therefore “functioning in the same manner as a bankruptcy
trustee, marshaling and preserving assets as circumstances allow.” SEC v. Bravata, no. 09-12950,
2011 WL 606745, at *2 (E.D. Mich. Feb. 11, 2011); id. (“The appointing order provides the
Receiver with broad authority to act on behalf of the receivership entities.”).
The Court is also guided by decisions addressing whether a receiver may assert the attorneyclient privilege on behalf of an entity in receivership. Several courts have held such authority is within
the powers granted to a receiver. United States v. Plache, 913 F.2d 1375, 1381 (9th Cir. 1990)
(“Prior to the instant action, the corporation was placed in receivership. Because the privilege was
held by the corporation, any right to assert the attorney-client privilege on behalf of the corporation
passed when the receiver of ELMAS/ROBL and its affiliates and subsidiaries, was appointed by the
court.”); Bravata, no. 09-12950, 2011 WL 606745, at *2 (“The appointing order provides the
Receiver with broad authority to act on behalf of the receivership entities. That authority includes the
right to waive the attorney-client privilege, if the Receiver in his judgment deems that course
prudent.”); United States v. Shapiro, 2007 WL 2914218, at *5 (S.D.N.Y. Oct. 1, 2007) (holding that
receiver had authority to waive corporate entity’s attorney-client privilege, and collecting cases in
support); see also SEC v. Ryan, 747 F. Supp. 2d 355, 362 (N.D.N.Y. 2010) (“Now that the Court
has determined that Prime Rate is an independent entity, our next inquiry is to ascertain if the
Receiver steps into the proverbial shoes of Prime Rate, becoming a client of Bosman & Associates,
who may have the right to seek its own files. Again, both the facts and law compel only one
observation: Levine, as Receiver and successor to the management of Prime Rate, is indeed a
client.”). Though these cases address only whether a receiver exercises control over a corporation’s
privilege, the same legal principles determine whether opposing counsel should be disqualified under
Rule 4-1.9(a). Parus Holdings, Inc. v. Banner & Witcoff, Ltd., 585 F. Supp. 2d 995, 1001-02 (N.D.
The Wittner Defendants raise several arguments against Plaintiff’s authority to seek Spooner’s
disqualification, but each is without merit. First, the Wittner Defendants’ argue that the Court must
distinguish between the Receivership Entities’s attorney-client privilege and their attorney-client
relationships. There is no basis in the law for making such a distinction. Id.
Next, the Wittner Defendants argue the Court should determine whether the Receivership
Entities’ attorney-client relationships transfer to Plaintiff by examining the “practical consequences”
of the receivership. However, courts employ the practical consequences test when evaluating
whether a particular transaction between a predecessor corporate entity and its successor operates
to transfer control over the former’s attorney-client privilege. See, e.g., id. at 1002-03; Soverain
Software LLC v. Gap, Inc., 340 F. Supp. 2d 760, 763 (E.D. Tex. 2004). For instance, “a mere
transfer of some assets or a single patent from one corporation to the other does not transfer the
attorney-client privilege.” Soverain Software LLC, 340 F. Supp. 2d 760, 763. However, “[i]f the
practical consequences of the transaction result in the transfer of control of the business and the
continuation of the business under new management, the authority to assert or waive the
attorney-client privilege will follow as well.” Id. Thus, the practical consequences test is used where
corporate control transfers as the result of some transaction, such as the purchase and sale of assets
or patents. Id.; In re Successor I Corp., 321 B.R. 640, 653-54. It is therefore inapplicable here,
because Plaintiff acquired control over the Receivership Entities by virtue of its appointment as their
SDR. For the same reasons, the Wittner Defendants’ reliance on FDIC v. Amundson is misplaced.
See 682 F. Supp. 981, 983-84 (D. Minn. 1988) (the court denied the FDIC’s motion to disqualify
opposing counsel, where the FDIC was acting “in its corporate capacity as purchaser of certain
assets” of an insolvent bank rather than as receiver of that bank).
After reviewing the legal principles discussed above, the Court finds that Plaintiff qualifies as
a “former client” by virtue of its status as the SDR of the Receivership Entities. As a result, Plaintiff
may seek to disqualify Spooner on the grounds that his representation of the Wittner Defendants
violates Rule 4-1.9(a).
3. Whether Spooner’s Former Representation of the Receivership Entities and Current
Representation of the Wittner Defendants are Substantially Related
Finally, Plaintiff argues that Spooner’s former representation of the Receivership Entities is
substantially related to his representation of the Wittner Defendants in the instant case. “Matters are
‘substantially related’ for purposes of this Rule 4-1.9 if they involve the same transaction or legal
dispute or if there otherwise is a substantial risk that confidential factual information as would
normally have been obtained in the prior representation would materially advance the client's position
in the subsequent matter.” Rule 4-1.9(a) cmt. ¶ 3; see also In re IH 1, Inc., 441 B.R. 742, 746
(Bankr. D. Del. 2011).
In In re Carey, the Missouri Supreme Court listed factors the courts consider when
determining whether two matters are substantially related. 89 S.W.3d 477, 494 (Mo. 2002). Among
these factors are: whether the matters involve the same clients or a series of matters or transactions
that reveal a client’s pattern of conduct; whether the lawyer interviewed witnesses key to both cases;
whether the matters share a commonality of witnesses, legal theories, and client business practices;
and whether the matters share common subject matter issues, and causes of action. Id. However,
when determining whether a substantial relationship between a former and current representation
exists, “[t]he underlying question is whether the lawyer was so involved in the matter that the
subsequent representation can be justly regarded as a changing of sides in the matter in question.”
Dalton, no. 4:10CV01090 AGF, 2011 WL 1344120, at *6 (quoting Rule 4-1.9(a) cmt. ¶ 1.). Put
another way, “[t]he inquiry is whether it is reasonable to infer that confidential information would
have been given to the lawyer during the prior representation and, if so, whether that information is
relevant to issues raised in the current litigation.” Dalton, no. 4:10CV01090 AGF, 2011 WL
1344120, at *6 (citation omitted).
Plaintiff argues Spooner’s former representations are substantially related to the instant case
by focusing on the Hannover Reassurance Life Co. of Am. v. Lincoln Memorial Life Ins. Co.
arbitration and litigation. In these matters, Hannover named Lincoln as a defendant and alleged it had
breached its contractual duties and committed fraud. Some of the factual allegations against Lincoln
were that NPS financial advisor David Wulf was not independent, that NPS officers and directors
improperly surrendered whole value life insurance policies and replaced them with term life insurance
policies, and that NPS failed to make timely payments to Lincoln. Similarly, here, Lincoln and NPS
are Receivership Entities, and Plaintiff alleges these Receivership Entities suffered damages resulting
from Defendants’ breach of their duties and fraud. These causes of action are built, in part, upon the
factual allegations discussed above.
During his representation of Lincoln, Spooner also had extensive interactions with witnesses
and parties that are relevant here. For instance, Plaintiff produced evidence showing that Spooner
regularly communicated with Lincoln’s corporate officers and attorneys, including Howard A.
Wittner and Katherine Scannell. Both of these individuals are defendants here. Records show that
Spooner also communicated with Howard A. Wittner, Randall Sutton, David Wulf, and J. Douglas
Cassity. All of these individuals are Defendants here. Finally, Spooner also attended the depositions
of Tony Lumpkin, Randall Sutton, and J. Douglas Cassity. Each of these individuals is a Defendant
Plaintiff also argues that Spooner may be called as a witness in the instant case, given his
extensive history and knowledge of the Receivership Entities and the allegations pending against
his former law firm. Plaintiff does not claim Spooner’s status as a possible witness warrants his
disqualification under Rule 4-3.7, but rather argues that this status is further evidence of the
necessity of his disqualification under Rule 4-1.9(a). The Court bears this possibility in mind, but
does not base its decision upon this consideration. Macheca Transp. Co., 463 F.3d 827, 833-34.
Even if the Court were to put aside the evidence of the extent of Spooner’s representation in
the Hannover matters, the mere existence of an “attorney-client relationship raises an irrefutable
presumption that confidences were disclosed.” Fred Weber, Inc. v. Shell Oil Co., 566 F.2d 602, 608
(8th Cir. 1977). The Court has already concluded that Spooner personally represented Lincoln and
NPS, in part based upon Spooner’s billing records indicating he discussed confidential matters
regarding those entities. Accordingly, there is an irrebuttable presumption that NPS and Lincoln
disclosed confidential communications to Spooner. Dalton, no. 4:10CV01090 AGF, 2011 WL
1344120, at *6; Griffen by Freeland, 945 F. Supp. 1251, 1254. Accordingly, Plaintiff need not prove
the Receivership Entities in fact disclosed confidences to Spooner to prevail on their disqualification
The Wittner Defendants argue that Plaintiff has waived the attorney-client privilege by
alleging the attorneys for the Receivership Entities committed malpractice and breached their
fiduciary duties. This argument is misplaced. It is true that when a client challenges his attorney’s
competence, the client puts the substance of attorney-client communications into issue. Tasby v.
United States, 504 F.2d 332, 336 (8th Cir. 1974). As a result, such a challenge waives the attorneyclient privilege, thereby enabling the attorney to defend himself against the client’s allegations.
United States v. Glass, 761 F.2d 479, 480 (8th Cir. 1985). However, such a challenge does not result
in blanket waiver, but instead in a waiver limited to only those documents and communications that
are at-issue. Jones v. United States, no. 4:11CV00702 ERW, 2012 WL 484663, at *1 (E.D. Mo.
Feb. 14, 2012). More importantly, a waiver of the privilege does not bar Plaintiff from invoking Rule
4-1.9(a), because the Rule protects a client’s interest in both confidences and loyalty. In re Jaeger,
213 B.R. 578, 589 (Bankr. C.D. Cal. 1997) (“A waiver of the attorney-client privilege does not affect
the duty of loyalty for conflict of interest purposes.); Griffen by Freeland, 945 F. Supp. 1251, 1253.
Accordingly, if an attorney is burdened by a conflict of interest, then Rule 4-1.9(a) requires that
attorney to secure informed consent, confirmed in writing, to continue a representation. Regardless
of any issues of privilege and waiver, it is undisputed here that Spooner has not obtained Plaintiff’s
consent to represent the Wittner Defendants.
In ruling on this matter, the Court must resolve all doubts in favor of disqualification. Coffelt.
577 F.2d 30, 32; see also Dalton, no. 4:10CV01090 AGF, 2011 WL 1344120, at *4. Upon review
of the facts and the law, the Court finds that Spooner has personally represented the Receivership
Entities. The Court also finds that this representation was substantially related to his current
representation of the Wittner Defendants in the instant case, and that Plaintiff qualifies as a “former
client” of Spooner based on its status as SDR of the Receivership Entities. As a result, Plaintiff has
shown that Spooner’s representation of the Wittner Defendants violates Rule 4-1.9(a). The Court
will therefore grant Plaintiff’s Motion to Disqualify Spooner.
DEFENDANT BROWN SMITH WALLACE’S MOTION FOR A PROTECTIVE
ORDER, OR, IN THE ALTERNATIVE, TO AMEND THE JULY 22, 2011
CONSENT PROTECTIVE ORDER. [ECF No. 821].
In their Second Amended Complaint, Plaintiffs allege Defendant Brown Smith Wallance
(BSW), an accounting firm, is liable for one count of professional negligence in auditing. BSW states
that although this allegation is only a small aspect of Plaintiffs’ wide-ranging Complaint, Plaintiffs
have produced or identified a tremendous number of documents. BSW argues it is unclear which of
these documents, if any, pertain to the single negligence allegation it faces, and that sifting through
this mass of documents presents an undue burden. BSW therefore asks the Court to enter a
Protective Order requiring Plaintiffs to identify with specificity the documents supporting their
negligence allegation. In the alternative, BSW asks the Court to amend the Consent Protective Order
dated July 22, 2011. [ECF No. 742]. In this Order, the Court permitted certain parties to exchange
fact-based interrogatories without regard to the stay of under-oath discovery previously issued by the
Court in this case. BSW asks the Court to Amend this Order to include BSW, so that it too may
engage in discovery by fact-based interrogatories.
Fed. R. Civ. P. 26(c)(1) states, in part, as follows:
A party or any person from whom discovery is sought may move for a protective
order in the court where the action is pending—or as an alternative on matters
relating to a deposition, in the court for the district where the deposition will be taken.
The motion must include a certification that the movant has in good faith conferred
or attempted to confer with other affected parties in an effort to resolve the dispute
without court action. The court may, for good cause, issue an order to protect a party
or person from annoyance, embarrassment, oppression, or undue burden or expense,
BSW’s request does not fit well within the text of this Rule. First, BSW seeks an Order requiring
Plaintiffs to identify documents supporting their allegation. Thus, BSW is not protected from the
burden of producing discovery to Plaintiffs; instead, it seeks protection from the burden of reviewing
the discovery Plaintiffs produced for their Rule 26 initial disclosures. Fed. R. Civ. P. 26(a)(1). BSW
is therefore not a “party or person from whom discovery is sought[.]” John Wiley & Sons, Inc. v.
Does Nos. 1-27, no. 11 Civ. 7627(WHP), 2012 WL 364048, at *2 (S.D.N.Y. Feb. 3, 2012). Next,
there was some discussion that the parties had talked prior to filing this Motion, but the Motion
contained no certification confirming the parties had conferred in good faith. BSW’s Motion
therefore violated both Rule 26, as well as Local Rule 3.04. Fed. R. Civ. P. 26(c)(1); E.D Mo. L.R.
3.04(A). In addition, it was immediately apparent at the hearing held on this Motion that the failure
of the parties to communicate materially impeded their resolution of this matter. Finally, BSW must
show “good cause” to be entitled to a protective order. Donovan v. Shaw, 668 F.2d 985, 991 (8th
Cir. 1982). Given the present stage of the discovery process and BSW’s failure to take simple
measures to resolve this dispute without Court intervention, BSW has failed to make this showing.
BSW’s request for a Protective Order will therefore be denied.
As for BSW’s alternative request, Plaintiffs state that they take no position with regard to
BSW’s request that the Consent Protective Order be amended so that BSW may also engage in factbased interrogatories. Because Plaintiffs do not object to BSW’s request, the Court believes that this
issue can best be resolved through discussions between the parties. For this reason, the Court will
deny BSW’s request at the present time. However, the Court invites BSW and Plaintiffs to confer
and develop a mutually agreeable Consent Protective Order to submit for the Court’s consideration.
IT IS HEREBY ORDERED that Plaintiff Jo Ann Howard & Associates, P.C.’s Motion to
Disqualify Jack Spooner as Counsel for the Wittner Defendants, [ECF No. 842], is GRANTED.
Spooner is disqualified from further representation of the Wittner Defendants in this case. The
Clerk’s Office shall terminate Spooner’s entry immediately. Witter Defendants shall employ new
counsel within twenty (20) days of this Order.
IT IS FURTHER ORDERED that Defendant Brown Smith Wallace’s Motion for a
Protective Order, or, in the Alternative, to Amend the July 22, 2011 Consent Protective Order, [ECF
No. 821] is DENIED. However, the Court invites the parties to confer and develop a mutually
agreeable Consent Protective Order to submit for the Court’s consideration.
So Ordered this 13th day of April, 2012.
E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE
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