McKenna v. David Z. Chesnoff, Chtd. P.C. et al
ORDER. IT IS HEREBY ORDERED that 108 the Chesnoff defendants' Motion for Reconsideration by District Court of Magistrate Judge C.W. Hoffman's 2/23/17, Order is DENIED. Signed by Judge Jennifer A. Dorsey on 10/30/17. (Copies have been distributed pursuant to the NEF - ADR)
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
David Z. Chesnoff, et al.,
Order Denying Motion for
Reconsideration Re: Cohen and
[ECF No. 108]
Plaintiff Michelle McKenna hired attorneys David Chesnoff and Richard
Schonfeld and their law firm to represent her in a personal-injury case against
Patrick Jones. Mid-suit, McKenna replaced the Chesnoff defendants with attorneys
Ruth Cohen and Paul Padda, who litigated her case for another seven months
before settling it. McKenna now sues the Chesnoff defendants for legal malpractice.
When it became clear that Cohen and Padda intend to serve as counsel for
each other at their depositions in this case, the Chesnoff defendants moved for a
protective order excluding these attorneys from the other’s deposition, disqualifying
them from representing one another, and barring them from even talking about
their depositions.1 Magistrate Judge Hoffman denied the motion,2 and the Chesnoff
defendants move for reconsideration.3 They argue that the order “is clearly
erroneous and contrary to law because” Judge Hoffman seemed to hold that “the
only way to show ‘good cause’ to exclude a witness from another witness’[s]
ECF No. 100.
ECF No. 107.
ECF No. 108.
deposition is to show that actual collusion will, without any doubt, occur.”4 And in
applying this approach, the magistrate judge ignored other relevant factors and a
“directly on point” unpublished Pennsylvania district-court case that they believe
nets a better outcome for them.5 Because I find that Judge Hoffman properly
applied the right legal standard and reached the right conclusion, I deny the motion
Standard of review for magistrate judge’s discovery order
A magistrate judge’s discovery order may be modified or set aside if it is
“clearly erroneous or contrary to law.”6 Factual determinations are reviewed for
clear error, and legal conclusions are reviewed to determine whether they are
contrary to law. The clear-error standard allows the court to overturn a magistrate
judge’s factual determinations only if the court reaches a “definite and firm
conviction that a mistake has been committed.”7
The Chesnoff defendants have not shown that the magistrate judge’s order is
clearly erroneous or contrary to law.
In their original motion, the Chesnoff defendants raised several arguments.
They claimed that Rule 3.7 of the Nevada Rules of Professional Conduct, which
prevents a lawyer from acting as an “advocate at a trial in which the lawyer is
likely to be a necessary witness,”8 prevents Cohen and Padda from acting as each
Id. at 4.
Id. at 6–7.
LR IB 3-1(a); 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a).
Burdick v. C.I.R., 979 F.2d 1369, 1370 (9th Cir. 1992).
Nev. R. Prof. Conduct 3.7.
other’s deposition counsel.9 Magistrate Judge Hoffman found that this rule only
applies to trial, not pretrial proceedings like depositions, and he rejected the
argument.10 They also argued that Rule 615 of the Federal Rules of Evidence—the
exclusionary rule commonly invoked at trial to prevent trial witnesses from hearing
the others’ testimony—compels Cohen and Padda’s exclusion from these
depositions. Magistrate Judge Hoffman quickly disposed of that argument, too:
Rule 30(c) of the Federal Rules of Civil Procedure was amended in 1993 to make it
clear that FRE 615 does not apply to depositions.11 He found the truly applicable
rule to be FRCP 26(c)(1)(E), which allows the court to issue a protective order when
the movant has stated “particular and specific facts” showing “good cause.”12 And
he cited as the authority for this standard the Ninth Circuit’s recognition in Foltz v.
State Farm Mutual Automobile Insurance Company that “[b]road allegations of
harm unsubstantiated by specific examples or articulated reasoning, do not satisfy”
the good-cause test.13
The Chesnoff defendants challenge only this last portion of the order. They
contend that Foltz is a document-sealing case and a square peg in the round hole of
witness exclusion.14 So, instead of denying the motion because the Chesnoff
defendants did not show a likelihood of harm with “specific examples or articulated
reasoning,” the magistrate judge should have evaluated in detail the facts that
ECF No. 100 at 9–11.
ECF No. 107 at 5.
Fed. R. Civ. P. 30(c). See ECF No. 107 at 3.
ECF No. 107 at 3–4.
Id. at 4 (quoting Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1130
(9th Cir. 2003)).
ECF No. 108 at 5.
Cohen and Padda (1) “were partners in their now-dissolved law firm, (2) maintain a
close professional relationship to this day, (3) made strategic decisions in the
underlying suit, the reasons for which are solely within their knowledge, and (4)
have a deep interest in the outcome of this case because they handled the
underlying suit at a critical time.”15 The Chesnoff defendants further argue that
the magistrate judge erred by not applying Dade v. Willis, an unpublished decision
from the Eastern District of Pennsylvania, and by not concluding—as the Dade
court did—that exclusion is required.16 I disagree.
First, I take issue with the premise of the Chesnoff defendants’ argument: I
do not accept their characterization of the magistrate judge’s analysis. Magistrate
Judge Hoffman did not misapply Foltz to hold “that the only way to show ‘good
cause’ to exclude a witness from another witness’[s] deposition is to show that
actual collusion will, without any doubt, occur.”17 Foltz reflects the general rules for
evaluating good cause for a protective order under FRCP 26(c) in this circuit.
Though it does not prescribe the factors that courts must consider in divining good
cause, it requires “that the court’s determination ‘identify and discuss the factors it
considered in its good cause examination to allow appellate review of the exercise of
its discretion.’”18 And district courts in this circuit have applied the specificshowing standard noted in Foltz when denying witness-exclusion protective
Id. at 6.
Dade v. Willis, 1998 WL 260270 (E.D. Pa. Apr. 20, 1998).
ECF No. 108 at 4.
Foltz, 331 F.3d at 1130 (quoting Phillips v. Gen. Motors, 307 F.3d 1206, 1212
(9th Cir. 2002)).
See, e.g., Collins v. City & County of San Francisco, 2014 WL 7665248 (N.D. Cal.,
Oct. 30, 2014) (noting that, “[t]o establish good cause, a party seeking a protective
That is precisely what Magistrate Judge Hoffman did here. He cited and
applied the Foltz standard but found that the defendants offered only speculation
that Cohen and Padda “may engage in improper collusion or subconsciously conform
their testimony,”20 so he denied the motion. This ruling does not suggest “that the
only way to show ‘good cause’ . . . is to show that actual collusion will, without any
doubt, occur.”21 It is just a recognition that the law requires, and the Chesnoff
defendants failed to provide, some showing of this risk. So, I cannot conclude that
the magistrate judge’s order—founded on the principles that control a Rule 26(c)
analysis in this circuit—was contrary to law.
Nor can I conclude that it was clearly erroneous. The factors that the
Chesnoff defendants identify do not show good cause in light of these witnesses’
minimal roles in the facts giving rise to this case. And the magistrate judge’s
reliance on authority within this circuit instead of the Pennsylvania court’s order in
Dade was well within his discretion. Plus, Dade does not compel a different result.
The Dade court, too, “recognize[d] that many courts have declined to order
sequestration based on a broad and conclusory allegation that, should the witnesses
be allowed to attend each other’s depositions, they will tailor their testimony to
order must set forth particular and specific demonstrations of fact, as distinguished
from stereotyped and conclusory statements,” and denying motion to exclude
witnesses from depositions based on concerns of collusion because “the City ha[d]
not made a particular and specific demonstration of fact sufficient to warrant a
protective order precluding Plaintiffs from attending each other’s depositions or
reviewing their testimony”); Stafford v. Brink’s, Inc., 2014 WL 12639087, * 2 (C.D.
Cal., Oct. 21, 2014) (denying protective order where “plaintiff ha[d] not supported
his request with affidavits or declarations or other evidence to support the assertion
that collusion is likely to occur. Indeed the basis on which plaintiff seeks exclusion
here would apply to most every case, and would effectively eliminate the need to
show good cause to obtain a protective order.”).
ECF No. 107 at 4.
ECF No. 108 at 4.
conform to one another.”22 But it concluded that the circumstances in that case
were “extraordinary.” The witnesses in question were law-enforcement officerdefendants in a police-brutality suit, and the plaintiff demonstrated that the issues
in the case were “matters solely within” their knowledge “and, consequently,
credibility [wa]s the crucial issue.” Plus, “[b]ecause two of the witnesses [we]re not
only partners on the police force, but defendants who possess[ed] an interest in the
outcome of th[e] case, the risk that the testimony of one [would], either consciously
or subconsciously, influence the testimony of the other [wa]s substantially
elevated.”23 “The entire case hinge[d] on a credibility determination [that wa]s
severely skewed by defendants’ status as police officers contrasted with plaintiff’s
The Chesnoff defendants did not make a similar showing. As the
magistrate judge accurately summarized, they did “not point to any specific facts
indicating that Ms. Cohen and Mr. Padda—who are officers of the court—will not
tell the truth while under oath at their depositions.”25 The postures of this case and
Dade are also materially distinguishable. Unlike the Dade officers, Cohen and
Padda are not parties and currently possess no interest in the outcome of this case.
They—and their credibility—are not the lynchpin of this case. Thus, I cannot
conclude that the magistrate judge’s order denying the motion to exclude Cohen and
Padda from the depositions and disqualify them from mutual representation was
clearly erroneous or contrary to law.
Dade, 1998 WL 260270, *3.
Id. at *2.
Id. at *3.
ECF No. 107 at 4.
Accordingly, IT IS HEREBY ORDERED that the Chesnoff defendants’
Motion for Reconsideration by District Court of Magistrate Judge C.W. Hoffman’s
February 23, 2017, Order [ECF No. 108] is DENIED.
DATED: October 30, 2017.
__ _ _ __ __
Jennifer A. Dorsey
r A. Do
United St t Di t i t J
States District Judge
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