America's Collectibles Network, Inc. v. Sterling Commerce (America), Inc

Filing 256

ORDER granting in part and denying in part 246 Motion to Disqualify Counsel; granting in part and denying in part 246 Motion to Amend. Set forth more fully herein.Signed by Magistrate Judge H Bruce Guyton on 03/28/2014. (KAW)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
AMERICA’S COLLECTIBLES NETWORK, INC.,)
d/b/a JEWELRY TELEVISION,
)
)
Plaintiff,
)
)
v.
)
)
STERLING COMMERCE (AMERICA) INC.,
)
)
Defendant.
)

No. 3:09-CV-143-RLJ-HBG

MEMORANDUM AND ORDER
This case is before the undersigned pursuant to 28 U.S.C. § 636, the Rules of this Court,
and Standing Order 13-02.
Now before the Court is Plaintiff’s Motion to Disqualify Defense Counsel From CrossExamination, Amend the Scheduling Order to Reopen Limited Discovery, and to Supplement
Initial Disclosures [Doc. 246]. The procedural posture of this issue and the relevant factual
background is familiar to the Court and is reviewed in the parties’ filings. The Court will not
repeat it here.
In its motion, Plaintiff moves the Court to: (1) disqualify attorneys from Kilpatrick
Townsend & Stockton LLP (“Kilpatrick”) from cross-examining its former client, Felton Lewis;
(2) amend the Scheduling Order to permit the Plaintiff to obtain certain discovery relating to
issues and facts raised by Kilpatrick in its response in opposition to the Plaintiff’s previous
Motion to Amend; and (3) to allow Plaintiff to supplement its initial disclosures to identify Susan
Cahoon and Joel Bush, both of whom are attorneys at Kilpatrick, as individuals likely to have
discoverable information that Plaintiff may use to support its claims. In support of its requested

relief, Plaintiff cites the Court to Rules 1.6 and 1.9 of the Tennessee Rules of Professional
Conduct. Plaintiff maintains that it has standing to assert the privileges associated with the
relationship between Mr. Lewis and Kilpatrick.
In response, the Defendant argues that it was permitted to disclose the information,
pursuant to Rule 1.6(b)(5) as needed “to respond to allegations in any proceeding concerning the
lawyer’s representation of the client.” [Doc. 252]. Defendant argues that Mr. Lewis waived the
privilege attached to any representation by Kilpatrick, when he disclosed confidential
information about the relationship to Mr. Lambert. To the extent the privilege is invoked,
Defendant maintains that Mr. Lewis, not the Plaintiff, should be the movant. Defendant argues
that the additional discovery requested by the Plaintiff is overly broad.
In its reply, Plaintiff argues that Kilpatrick did not use the information in self-defense,
and instead, used it as a sword against permitting discovery.

Plaintiff maintains that its

discovery requests are appropriately tailored.
The Rules of Professional Conduct adopted by the Supreme Court of Tennessee have
been adopted by this Court insofar as they relate to matters within the jurisdiction of the Court.
See E.D. Tenn. L.R. 83.6. Rule 1.9 provides that a lawyer, “who has formerly represented a
client in a matter . . . shall not thereafter reveal information relating to the representation or use
such information to the disadvantage of the former client. . . .” Tenn. Sup. Ct. R. 8, RPC 1.9.
Rule 1.9 provides three exceptions that are not applicable here. However, Rule 1.6 also provides
an exception to Rule 1.9, in that a lawyer “may reveal information relating to the representation
of a client to the extent the lawyer reasonably believes necessary . . . to respond to allegations in
any proceeding concerning the lawyer’s representation of the client.” Tenn. Sup. Ct. R. 8, RPC
1.6.

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The Court has considered these rules, the comments thereto, the relevant case law, the
parties’ filings, and the parties’ thorough oral arguments. However, the Court finds that the
issues presented can be resolved almost entirely by a compromise reached through the parties’
concessions at the hearing. The Court finds that this compromise does not offend either party’s
position and is appropriate under the circumstances.
With regard to the cross-examination of Mr. Lewis, the Defendant has suggested that
Attorney Keith Carver, of the law firm Kramer Rayson LLP, conduct the cross-examination. Mr.
Carver currently serves as co-counsel for the Defendant in this case, but he has not had an
attorney-client relationship with Mr. Lewis. Though Plaintiff initially objected to this course,
counsel for the Plaintiff later represented that Plaintiff did not object to Mr. Carver conducting
the cross-examination. The Court finds that Mr. Carver is well-qualified to conduct the crossexamination and his doing so does not present a potential conflict. Plaintiff has requested that
Mr. Carver not prepare for this deposition with counsel from Kilpatrick. The Court finds that
this restriction is generally appropriate, but the Court will not order Mr. Carver or the attorneys
from Kilpatrick to use a “Chinese wall” or extreme restrictions in the preparation. Mr. Carver
will use his professional judgment in preparing for this cross-examination.
With regard to the written discovery requested by the Plaintiff, the Court finds that
Plaintiff should be permitted limited, additional discovery. At the hearing, counsel for the
Defendant agreed to produce documents relating to the Defendant and Kilpatrick’s relationship
with Lewis. The Court finds that this proposed compromise is well-taken. The Court has
reviewed the requests for production that Plaintiff proposes to serve upon Kilpatrick, the
Defendant, and International Business Machines Corporation (“IBM”), and the Court finds that
these requests seek documents far beyond the scope of discovery in this case and that many of

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the items requested are likely to be protected by the attorney-client privilege or the work-product
doctrine. Accordingly, the Court will order Kilpatrick to respond to Request 1 of the proposed
requests for production for Kilpatrick, [Doc. 250-2 at 6-7], and will order Defendant to respond
to Request 1 of the proposed requests for production for Defendant, [Doc. 250-4 at 5-6].
Plaintiff’s request to permit any other additional discovery will be denied, and the Court will not
order the IBM to respond to any of the proposed requests for production, [Doc. 250-3].
Finally, the Court finds that the request to depose Ms. Cahoon and Mr. Bush and the
request to add Ms. Cahoon and Mr. Bush to the Plaintiff’s disclosures are not well-taken. The
Court finds that the depositions of counsel in this case would be an extreme form of relief, which
appears unnecessary at this time. The Court is not prepared, at this time, to order such invasive
discovery, and the Court finds that supplemental disclosures are not necessary.
Based upon the foregoing, the Motion to Disqualify Defense Counsel From CrossExamination, Amend the Scheduling Order to Reopen Limited Discovery, and to Supplement
Initial Disclosures [Doc. 246] is GRANTED IN PART and DENIED IN PART, as follows:
1.

Attorney Keith Carver, of the law firm Kramer Rayson LLP, will conduct
the cross-examination of Mr. Lewis, and he will use his professional
judgment in restricting his interaction with attorneys from Kilpatrick in
preparing for this cross-examination;

2.

Kilpatrick SHALL RESPOND to Request 1 of the proposed requests for
production for Kilpatrick, [Doc. 250-2 at 6-7], on or before April 15,
2014;

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3.

Defendant SHALL RESPOND Request 1 of the proposed requests for
production for Defendant, [Doc. 250-4 at 5-6], on or before April 15,
2014;

4.

All other requests for discovery are DENIED;

5.

The Plaintiff’s request to depose Ms. Cahoon and Mr. Bush is DENIED;

6.

The Plaintiff’s request to amend their initial disclosures is DENIED;

7.

The parties SHALL CONDUCT the depositions of Mr. Lewis, Mr.
Giannovi, and Mr. Lambert, [see Doc. 245], on or before May 15, 2014;
and

8.

The parties SHALL FILE any dispositive motions on or before June 20,
2014. Any responses to the dispositive motions shall be filed on or before
August 19, 2014, and any replies shall be filed on or before October 2,
2014. With the exception of these modified deadlines, the parties’ briefing
of dispositive motions will be governed by the Court’s previous Order
[Doc. 227].

IT IS SO ORDERED.
ENTER:
/s H. Bruce Guyton
United States Magistrate Judge

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