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POLIN v. KELLWOOD CO.

October 26, 1994

CHARLES S. POLIN, Plaintiff,
v.
KELLWOOD COMPANY, KELLWOOD SPORTSWEAR, ENOCH HARDING, JR., and HARRY HOLDING, Defendants


Owen


The opinion of the court was delivered by: RICHARD OWEN

OWEN, District Judge:

 Before me is a motion by plaintiff Charles Polin to disqualify Morgan, Lewis & Bockius, counsel for defendants Kellwood Company, et al. Polin is a former employee of Kellwood. In this action he claims that he was terminated from employment because of age discrimination, that he had been fraudulently induced by Kellwood to accept employment, and that defendants Harding and Kellwood Sportswear tortiously interfered with his employment relationship with Kellwood through a variety of actions which negatively affected the Kellwood division of which Polin was President. Kellwood retained Morgan, Lewis to defend here.

 Morgan, Lewis is also defending Kellwood in another pending lawsuit, Enteks v. Nursu Okurer v. Kellwood, 92 Civ. 5881 (S.D.N.Y.) earlier commenced by a former supplier of merchandise to Kellwood. In Enteks, the plaintiffs allege that Kellwood refused to pay for certain goods. Polin, plaintiff in this case, was the President of one of Kellwood's divisions when the events in Enteks occurred, and had enough involvement in the events to be interviewed by others in the company exploring the matter. He, however, was not named as a party in that matter, nor was he mentioned anywhere in the complaint. Even so, some time after Polin and Kellowood had parted company, the Enteks plaintiffs sought his deposition and Morgan, Lewis attorneys Kerri Howland and James Harbison met with him to prepare for it.

 Plaintiffs' motion to disqualify essentially arises from his version of conversations with Howland and Harbison during the deposition preparation as to which he testified in the hearing I had on May 12, 1994:

 
And I specifically asked Miss Howland, and she assured me in no uncertain terms that she was representing me.
 
THE COURT: What did she say?
 
THE WITNESS; I asked a specific question, "Are you representing me?"
 
THE COURT: And what did she say to that?
 
THE WITNESS: She said, "Of course." And there was not a prolonged discussion. There was not a detailed discussion. It was a question. It was an answer. And at that point it was not an issue at all.
 
* * *
 
[The morning of the deposition] Miss Howland and Mr. Harbison were there. And I again asked the same question very specifically, no equivocation, to both of them. And again it was a very simple assurance of, "Yes, Chuck, of course we're representing you," or words to that effect.

 Howland and Harbison also testified before me. They both specifically deny any suggestion of representation. ...


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