Stoncor Group, Inc. v. Peerless Insurance Company

Filing 116

ORDER: denying without prejudice 112 Letter Motion for Conference ; denying without prejudice 112 Letter Motion for Discovery. As the Second Circuit held in McGuire v. Russell Miller, Inc., 1 F.3d 1306, 1314 (2d Cir. 1993),while "an action to recover attorneys' fees pursuant to a contract presents traditional common law contract issues which should be submitted to a jury,... the subsequent determination of the amount of attorneys' fees owed presents equitable issues of accou nting which do not engage a Seventh Amendment right to a jury trial" (emphasis added). The purpose of the "witness-advocate" disqualification rule is largely geared to interference with the jury function. See Ramey v. Dist. 141, Intern . Ass'n of Machinists and Aerospace Workers, 378 F.3d 269, 283 (2d Cir. 2004) (referring to concern that testimony by the advocate will interfere with "the jury's ability to find facts") (citation and quotation marks omitted). Bec ause there will be no jury trial on the issue of attorney's fees, there is no real danger of counsel's continuing representation tainting the trial. See U2 Home Ent., Inc. v. Tan, 2001 WL 823701, at *1(S.D.N.Y. July 23, 2001) ("In view of the fact that this appears to be a non-jury case, the likelihood of trial taint by virtue of any violation of the witness-advocate rule seems small."). Indeed, given the nature of attorney fee determinations, the "accounting" requi red by McGuire is unlikely to involve a trial at all. The application to disqualify counsel is denied. As for any request to depose counsel, this application is denied without prejudice to a newapplication, if necessary, compliant with paragraph 2.A of the Court's Individual practices. As part of the conferral process, the parties should certainly attempt to see if the information needed can be provided in some form other than deposition testimony. SO ORDERED. (Signed by Magistrate Judge Gabriel W. Gorenstein on 2/04/2021) (ama)

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16-cv-04574-LAK-GWG Document 112
MEMORANDUM ENDORSEMENT

As the Second Circuit held in McGuire v. Russell Miller, Inc., 1 F.3d 1306, 1314 (2d Cir. 1993),
while "an action to recover attorneys’ fees pursuant to a contract presents traditional commonlaw contract issues which should be submitted to a jury, . . . the subsequent determination of
the amount of attorneys’ fees owed presents equitable issues of accounting which do not
engage a Seventh Amendment right to a jury trial” (emphasis added). The purpose of the
"witness-advocate" disqualification rule is largely geared to interference with the jury
function. See Ramey v. Dist. 141, Intern. Ass'n of Machinists and Aerospace Workers, 378 F.3d
269, 283 (2d Cir. 2004) (referring to concern that testimony by the advocate will interfere with
"the jury's ability to find facts") (citation and quotation marks omitted). Because there will be
no jury trial on the issue of attorney's fees, there is no real danger of counsel's continuing
representation tainting the trial. See U2 Home Ent., Inc. v. Tan, 2001 WL 823701, at *1
(S.D.N.Y. July 23, 2001) ("In view of the fact that this appears to be a non-jury case, the
likelihood of trial taint by virtue of any violation of the witness-advocate rule seems
small."). Indeed, given the nature of attorney fee determinations, the "accounting" required by
McGuire is unlikely to involve a trial at all. The application to disqualify counsel is denied.
As for any request to depose counsel, this application is denied without prejudice to a new
application, if necessary, compliant with paragraph 2.A of the Court's Individual practices. As
part of the conferral process, the parties should certainly attempt to see if the information
needed can be provided in some form other than deposition testimony.
So Ordered.

February 4, 2021