Moi v. Chihuly Studio, Inc. et al

Filing 58

ORDER granting defendants' 25 Redacted Motion for Disqualification of Counsel, signed by Judge Robert S. Lasnik.(SWT)(Motions terminated: 21 SEALED MOTION for Disqualification of Counsel)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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MICHAEL MOI,
Plaintiff,

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v.

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No. C17-0853RSL
ORDER DISQUALIFYING
COUNSEL

CHIHULY STUDIO, INC., et al.,
Defendants.

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This matter comes before the Court on defendants’ “Motion for Disqualification of

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Counsel.” Dkt. # 21 (redacted version at Dkt. # 25). Defendants argue that attorney Anne

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Bremner and her law firm, Frey Buck, P.S., should be disqualified as counsel for plaintiff in the

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above-captioned matter because (1) a prior representation gave them access to defendants’

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privileged and confidential information that would not otherwise be available in this litigation

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and (2) their representation of Moi creates an irreconcilable conflict of interest with other

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clients. Having reviewed the memoranda, declarations, and exhibits submitted by the parties,1

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the Court finds as follows:

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This matter may be decided on the papers submitted. Defendants’ request for oral argument is
DENIED. The Court further finds that the basic facts giving rise to this dispute are uncontested and that
an evidentiary hearing in open court would serve no purpose other than to further disclose confidential
and privileged information. Plaintiffs’ request for an evidentiary hearing and/or discovery is DENIED.
ORDER DISQUALIFYING COUNSEL

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Because this Order will be publicly available, it will be brief and, to the greatest extent

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possible, in keeping with the existing confidentiality agreements and the expectations of the

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parties. Attorney Anne Bremner and her law firm, Frey Buck, P.S., possess defendants’

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privileged information regarding issues germane to this litigation.2 To be clear, there is no

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indication that their acquisition or prior use of this information was wrongful: their former

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clients could arguably disclose whatever information they had in pursuit of their own claims,

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regardless of its source.3 At this point, however, counsel is attempting to use that privileged

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information to benefit Moi, who would not otherwise have had access to the information, to the

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detriment of defendants.

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“This Court applies state law in determining matters of disqualification, and thus must

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follow the reasoned view of the state supreme court when it has spoken on the issue” or, if the

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highest state court has not yet spoken, “we look to the intermediate appellate courts for

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guidance.” In re Examination of Privilege Claims, MC15-0015JCC, 2016 WL 8669870 at * 1

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(W.D. Wash. July 22, 2016) (internal quotation marks and citations omitted). In determining

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whether an attorney’s possession of privileged information merits disqualification, courts in

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Washington “consider (1) prejudice; (2) counsel’s fault; (3) counsel’s knowledge of claim of

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privilege; and (4) possible lesser sanctions.” Foss Maritime Co. v. Brandewiede, 190 Wn. App.

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Counsel takes too narrow a view of what type of privileged and confidential information is
relevant to Moi’s claims. The fact that Moi was not specifically identified or discussed in
communications between defendants and their attorneys is immaterial. Moi’s claims are based on events
occurring from 1999 to 2014. Defendants assert, and plaintiff does not dispute, that counsel’s former
clients were involved in attorney/client communications during that time frame regarding exactly the
type of claims of authorship Moi is now asserting. Plaintiff cannot seriously argue that defendants’
internal legal analysis, risk assessments, and strategies on these same issues are not privileged and/or are
irrelevant.
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For this reason, plaintiff’s waiver argument fails. If, as plaintiff argues, it is fully proper for a
client to disclose all information in his or her possession to counsel regardless of the source of the
information, a motion to disqualify counsel at an earlier time would have been a non-starter. It is
counsel’s subsequent use of that information that prompted defendants to take action.
ORDER DISQUALIFYING COUNSEL

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186, 195 (2015) (citing In re Firestorm 1991, 129 Wn.2d 130, 142 (1996)).
“Prejudice,” in this context, means that the information reviewed by opposing counsel is

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material to the underlying litigation. The information at issue here reveals advice of counsel

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regarding claims of authorship, contractual protections and defenses to such claims, and other

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issues that are relevant to Moi’s claims in this litigation. It is both significant and material. If

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defendants were forced to defend themselves not only from plaintiff’s claims, but also from

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their own privileged and contemporaneous analyses, they would undoubtedly suffer prejudice.

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With regards to fault and knowledge, both factors support disqualification. While counsel’s

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initial access to the privileged information may not have been wrongful, there is no dispute

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regarding its privileged nature. Although defendants waited until they were served with Moi’s

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complaint to explicitly object to the way in which counsel was using the material, the fact that

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the information provided by their former clients included defendants’ attorney-client

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communications and work product was obvious. Nor can there be any dispute that counsel has

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knowingly used confidential information obtained through prior litigation to argue Moi’s case

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in the media or that they intend to use the information they obtained to benefit Moi in this

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litigation. Finally, with regards to fashioning a sanction, the Court should carefully consider the

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options and impose the least severe sanction that will adequately serve to deter similar conduct

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in the future and/or to prevent harm to defendants. In this case, simply returning the privileged

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documents and precluding their admission at trial is insufficient. Counsel is privy to

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defendants’ privileged communications and, even if the documents themselves are withdrawn,

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can use their substance to guide discovery in an attempt to elicit the same information from

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admissible sources.

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For all of the foregoing reasons, the Court finds that the four Foss Maritime factors favor

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disqualification. Defendants’ motion is therefore GRANTED, and the Court need not evaluate

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ORDER DISQUALIFYING COUNSEL

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whether counsel’s continued representation would give rise to irreconcilable conflicts with

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their prior clients. Anne Bremner and her law firm, Frey Buck, P.S., are hereby disqualified as

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counsel for plaintiff Moi in this litigation. In addition, any co-counsel with whom the

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privileged or confidential information was shared are also precluded from serving as counsel

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for plaintiff in this action. Anne Bremner and her law firm, Frey Buck, P.S., shall return any

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and all copies of privileged documents to defendants and shall refrain from sharing defendants’

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privileged or confidential information any further.

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Dated this 25th day of October, 2017.

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A
Robert S. Lasnik

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United States District Judge

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ORDER DISQUALIFYING COUNSEL

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