Oates, et al v. North Carolina Department of State Treasurer, et al

Filing 166

ORDER denying 159 Motion for Discovery FOR CLARIFICATION REGARDING DEFENDANTS' ASSERTION THAT PLAINTIFF'S ATTORNEY RYAN STUMP HAS CONFLICT OF INTEREST AS AN ATTORNEY IN THIS ACTION BECAUSE HE MAY BE A WITNESS. Counsel is reminded to read the order in its entirety for critical information. Signed by Magistrate Judge Robert B. Jones, Jr on 10/30/2018. (Collins, S.)

THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:16-CV-623-FL
PRISCILLA EVERETTE-OATES,
Plaintiff,
v.
LOLITA CHAPMAN, et al.,
Defendants. -

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ORDER

This matter is before the court on the motion of Plaintiff, Priscilla Everett-Oates, for an order
for clarification regarding Defendant's assertion that Plaintiffs attorney, Ryan Stump, has a conflict
of interest in this action because he may be a witness. [DE-159]. Defendant, Beth A. Wood, filed
a response to the motion [DE-160], Plaintiff filed a reply [DE-161 ], and the court held a telephonic
hearing [DE-162]. For the reasons that follow, the motion is denied.
At the beginning of a deposition of Defendant Lolita Chapman, the following exchange
occurred among counsel for the parties:
Q Good morning, Ms. Chapman. I'm Ryan Stump, one of the lawyers
for Ms'. Oates. How are you?
A I'm good.
Q All right.
MR. JOHNSON: Mr. Stump, my name is Dan Johnson. I'm one of
the lawyers for Beth Wood. My understanding from the complaint is
that you may be a witness to some of the events in this case. Do you
plan to be both a lawyer and a witness in this case?
MR. BONNER: We haven't made that decision yet, sir, so we'll let
you know at the appropriate time when that--when that decision is

made.
MR. JOHNSON: Hemaybecommittinghimselfto being an advocate
right now and he may be not able to be that if he's planning to also be
a witness.
MR. BONNER: Well, a judge will have to make thatdetermination
with all due respect. So we'd like to proceed.
MR. JOHNSON: All right. I'm just raising the point that he may be
a witnessMR. BONNER: Your objection is noted. If you have an objection,
please state it for the record. Otherwise let's move forward.
MR. JOHNSON: Right. The defendant Wood is not going to waive
the right to raise his role as an advocate and as a witness ifhe plans
to give an affidavit or testify somehow in this case.
MR. BONNER: We assume that you've made an objection, and the
record is so noted. Please proceed.
MR. STUMP: Are--are you intending to call me?
MR. JOHNSON: No.
MR. STUMP: Are--are any of the defendants planning to call me?
MR. JOHNSON: I can't speak for them.
MR. STUMP: Other lawyers are present. Are any of the defendants
in the case that are present as far as their counsel planning to call me
as· a witness?
MS. HILL: We haven't made that determination yet.
MR. BONNER: Okay.
MS. HILL: I can't speak to that.
MR. STUMP: Okay.
MR. RABINOVITZ: Yeah. I'm in the same position.

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MR. STUMP: Okay. Well, I mean, I don't see the need for me to be
called in our case in chief, so I guess the question would be if defense
counsel in any way for any of the defendants is planning to, that
would be something that you would know instead of just raising that
issue now but not knowing.
MR. RABINOVITZ: Well, it seems like we've received two different
answers already. One is you haven't made a determination yet of
whether you may be called-MR. STUMP: I don't think it's necessary for me to be called. I'm
asking if--if the issue's being raised, it sounds like that's something
that's planning on--you're planning on doing.
MR. JOHNSON: I'm planning to--I'mjust raising the issue because
you have been listed in the complaint to my recollection as a witness
to some events. And here it looks like you're getting ready to be an
advocate. And 3. 7 of the rules of professional conduct relates to that
topic. And so I was raising this so that the--you don't go, you know,
being an advocate and then plan also to be a witness.
MR. BONNER: Your objection's noted or your concern is noted.
MR. STUMP: Okay. We'll--we'll take a break for a second. We'll
take a break for a second.
MR. BONNER: Okay.
MR. STUMP: Let's take a break, and we'll address that.

MR. STUMP: All right. So in light of the issue that Mr. Johnson
raised and has now cited an ethical rule, we are going to recess the
deposition for me to get an opinion from the State Bar and also we'll
file a motion with the judge to make a determination at this point if
there's an issue with me taking a deposition. Also the fact that no
defense counsel will confirm or deny whether they plan on calling me
or not, it's not a risk that I'm willing to take or that we are as a-- as
the plaintiff's la[ w]yers.
MR. BONNER: And I'd like to further add for the record that we'll
ask the court to award us costs for today 'cause this issue could have
been raised at the time the pleadings were filed in light-of the fact that
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Mr. Johnson cited the complaint. The complaint was filed as I recall
back in June of 2017. Clearly you've read the complaint because you
cited the fact that Mr. Ryan Stump was cited in the complaint. This
issue could have been raised at the time you raised your answer, and
instead here we are now a year later at the time of the deposition of
one of the key witnesses who has material facts relevant to the
various claims in this case. We think this is untimely. It's a waste of
time. It's a· waste of judicial resources. And we'll be seeking
appropriate compensation for today's time including attorneys' fees.
MR. JOHNSON: This is Dan Johnson again. There are other
depositions scheduled this week. Do you plan to take those, Mr.
Stump?
MR. STUMP: Ms. Edmundson's will be moved. The other two I
believe is Mr. Barry Long and then Vance Holloman.
MR. BONNER: They will go forward.
MR. STUMP: Mr. Bonner plans to take those.
MR. JOHNSON: Okay.
MR. LINDSLEY: So just to be clear, deposition scheduled for
Wednesday is now cancelled?
MR. STUMP: That's correct.
MR. BONNER: That's correct 'cause Mr.-MR. STUMP: I believe that was Sharon Edmundson.
MR. BONNER: Mr. Stump was going to depose her. And so in light
of this" potential eth[]ical conflict that needs to be resolved
beforehand, we will recess that deposition as well, Ms. Edmundson's
deposition. Okay. Thank you.
MR. STUMP: Thank you.
Dep. Tr. [DE-159-3] at 4:2-9:22. Stump subsequently received ethics advice from the North
Carolina State Bar indicating the situation, as he conveyed it, did not present a disqualifying conflict
under Rule 3.7 of the North Carolina Revised Rules of Professional Conduct, but that if opposing
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counsel was not satisfied, Stump should seek a ruling from the court. [DE-159-1] at 2-5.
The rule at issue provides, in relevant part, as follows:
(a) 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 oflegal services rendered in the case;
or
(3) disqualification of the lawyer would work substantial hardship on the client.
N.C. Rev. R. of Profl Conduct 3.7(a). Plaintiff seeks a ruling on Defendant Wood's "objection,"
arguing that Stump is not a "necessary witness" and so there is no conflict in violation of Rule 3.7.
Pl.'s Mot. [DE-159] at 2; [DE-161]. Defendant Wood responded that Johnson did not object to
Stump taking Chapman's deposition, none of Defendants suggested or requested that Chapman's
deposition be cancelled, none ofthe Defendants filed a motion to disqualify Stump, and Johnson was
merely raising a potential issue to preserve any future objection should Stump attempt to take a dual
role. Def.'s Resp. [DE-6] at 5-6, 8-9.
Having considered the briefing and the arguments of counsel, the court finds that the motion
is premature. At the deposition, Johnson inquired as to whether Stump would be a lawyer and a
witness, and Bonner responded that they had not yet made that decision and would let counsel know
at the appropriate time. Johnson did not lodge an objection but indicated he was preserving his right
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to raise the issue should Stump later attempt to provide testimony in the case. At this point there
is only speculation about whether or not Stump may offer testimony or be called as a witness and
what his proffered testimony would be, leaving the court unable to apply the relevant factors or to
offer more than an advisory opinion on an issue that is not ripe. See N.C. Rev. R. of Prof 1 Conduct
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3.7 cmt. 4 ("[A] balancing i's required between the interests of the client and those of the tribunal and ,
the opposing party. Whether the tribunal is likely to be misled or the opposing party is likely to suffer
prejudice depends on the nature of the case, the importance and probable tenor of the lawyer's
testimony, and the probability that the lawyer's testimony will conflict with that of other
witnesses."). The Howard v. College ofAlbermarle case, cited by Plaintiff, is distinguishable from
the present case because in Howard a motion to disqualify was before the court, 2016 WL 4384658,
at *4-5 (E.D.N.C. Aug. 16, 2016), and here no motion to disqualify Stump has been filed. See also

Spring v. Bd ofTrustees ofCape Fear Cmty. Coll., No. 7:15-CV-84-BO, 2015 WL 5562293, at *1
(E.D.N.C. Sept. 21, 2015) (considering Rule 3.7 in the context of a motion to disqualify where the
plaintiff expected to take defense counsel's deposition and to call him as a witness); Silicon Knights,

Inc. v. Epic Games, Inc., No. 5:07-CV-275-D, 2011 WL 5439156, at *6 (E.D.N.C. Nov. 8, 2011)
(considering Rule 3. 7 in the context of a motion in limine to exclude the plaintiffs lead trial attorney
from testifying as a rebuttal witness at trial). Accordingly, the motion is denied.
SO ORDERED, this J~ day of October 2018.

United States Magistrate Judge

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