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Cabble v. Rollieson

February 24, 2006


The opinion of the court was delivered by: Frank Maas, United States Magistrate Judge.


I. Introduction

Plaintiff Charles Cabble ("Cabble") spent seven months in pretrial detention in 2003 before he was acquitted of charges arising out of a series of sex crimes that he was alleged to have committed. In this action instituted following his acquittal, Cabble asserts various claims against the City of New York and six individual defendants, including civil rights claims under 42 U.S.C. §§ 1983, 1985 and 1986, and claims of false arrest, false imprisonment, malicious prosecution, negligence, defamation, and intentional infliction of emotional distress.

The case comes before the Court even before an answer has been filed in connection with three motions: (a) Cabble's motion to disqualify the law firm of Storch, Amini & Munves, P.C. (the "Storch firm") from further representation of the individual defendants; (b) the cross-motion of the City of New York ("City") and the individual defendants (collectively, the "defendants") to compel Cabble to provide them with releases for the production of his criminal records under Section 160.50 of the New York Criminal Procedure Law ("CPL) ("Section 160.50 Releases"); and (c) the individual defendants' cross-motion to strike allegedly scandalous material in the first amended complaint ("Complaint"). For the reasons set forth below, the motion to disqualify the Storch firm is denied, as is the individual defendants' motion to strike, and the defendants' motion to compel is granted.

II. Factual Background

In January 2003, defendant Linda Rollieson ("Rollieson"), then an employee of a Hollywood Video store located at 2098 Bartow Avenue in the Bronx ("Store"), contacted Rebecca Dell'Aglio ("Dell'Aglio"), director of the Women's Rights at Work Project of Citizen Action New York, to report alleged sexual harassment by Cabble, who was then the Store manager. (Affirm. of Douglas H. Wigdor, Esq., dated Mar. 4, 2005 ("Wigdor Affirm."), Ex. 2 at 313-14). Several months later, in March 2003, Dell'Aglio suggested that Rollieson contact the Storch firm regarding these allegations. (Id. at 320).

Coincidentally, on March 15, 2003, Cabble himself called the police to report that he had been assaulted by the father of the child of a Store employee named Nyree Soto ("Soto"). (Id. Ex. 7 at 651-54). Although the alleged assailant had left the Store by the time the police arrived, both Cabble and Soto were questioned about the incident. (Id. at 653-55). Near the end of her interview, Soto volunteered to the police that she had been raped by Cabble several weeks earlier.*fn1 (Id. at 654). At their request, Cabble then accompanied the police from the Store to the precinct, where he was placed under arrest. (Id. at 656-57, 660). He evidently was released on bail soon thereafter. (See Pl.'s Mem. in Supp. at 6).
Subsequently, between March 21 and April 21, 2003, several members of the Storch firm met with Rollieson, Soto, and the four other individual defendants, Tamesha Dasent ("Dasent"), Christina Collazo ("Collazo"), Monique Riddock ("Riddock") and Lauren Thorpe ("Thorpe"), each of whom was then a Store employee. (Id. at 6; Wigdor Affirm. Exs 2 at 320, 3 at 345-48, 4 at 744-46). These meetings took place at several locations, including Rollieson's apartment.*fn2 (Wigdor Affirm. Exs. 3 at 345-48, 4 at 744-46).

On April 1, 2003, Rollieson accompanied Dasent to a police precinct to report that Cabble had attempted to rape Dasent on December 25, 2002. (Id. Ex. 8 at 109-10). Upon learning of this allegation, the police interviewed both Rollieson and Dasent. (Id. at 113). That same day, the police re-arrested Cabble on additional charges. (Id. Ex. 15 at ¶ 21). This time, rather than being released quickly, Cabble remained in custody until he was released on his own recognizance on November 10, 2003. (Id.).

On April 17, 2003, the individual defendants filed a lawsuit in state court against the Hollywood Entertainment Corporation, which is the operator of the Store. (Id. Ex. 16). In that lawsuit, in which they were represented by the Storch firm, the individual defendants sought damages in the amount of $20 million (later raised to $50 million) as a result of Cabble's alleged harassment and abuse of them. (Id. & Ex. 4 at 743).

Four days later, on April 21, 2003, the Storch firm held a press conference at its offices which was attended by, among others, Rollieson, Steven Storch ("Storch"), a name partner at the Storch firm, Sangita A. Shah ("Shah"), an associate at the Storch firm, Gerry Migliore, a press liaison for the Storch firm, and Dell'Aglio. (See id. Exs. 2 at 320-321 & 16; Decl. of Sangita A. Shah, Esq., dated April 8, 2005 ("Shah Decl."), ¶ 6).

Shortly thereafter, the same individuals and defendant Dasent met with New York Times reporter Tina Kelley at the New York Times' offices. (Wigdor Affirm. Ex. 14 at 199). These discussions led to a published article, which Cabble contends is defamatory. (See Tina Kelley, Store Manager is Indicted in Sex Abuse of Employees, N.Y. Times, Apr. 26, 2003, at B4).

Prior to Cabble's criminal trial, Rollieson and Shah also attended several Citizens Action New York forums at which Rollieson spoke about the sexual abuse she allegedly had experienced. (Wigdor Affirm. Ex. 14 at 108-09). Between five and twenty people attended each such forum. (Id. at 108).

In April 2003, around the time of Cabble's second arrest, Rollieson also had several meetings with the Bronx District Attorney's Office. (Id. Ex. 8 at 104-09).

The criminal charges against Cabble led to a bench trial before Justice Steven Barrett in Supreme Court, Bronx County. (See Pl.'s Mem. in Supp. at 4). According to Cabble, ten of the fifteen counts originally charged were dismissed or withdrawn before the trial. (Id. n.4). On March 12, 2004, Justice Barrett acquitted Cabble on the remaining counts. (Id.).

Cabble commenced this action on December 1, 2004. (See Docket No. 1 at 1). He is represented by the firm of Thompson, Wigdor & Gilly ("TWG"), the firm that represents him in the state court civil suit brought by the individual defendants. (See Rollieson v. Hollywood Entm't, No. 0015764/2003 (Sup. Ct. Bronx County, filed April 17, 2003)). TWG also represented Cabble at the criminal trial. (Shah Decl. Exs. A-E).

Following the commencement of this suit, the New York City Law Department wrote to TWG on December 29, 2004, to acknowledge service of process. (See Decl. of Sheryl Bruzzese, Esq. ("Bruzzese Decl."), dated March 18, 2005, Exs. C, D). In its letters, the Law Department noted that as a consequence of Cabble's acquittal, the records relating to his arrests and prosecution had been sealed pursuant to CPL Section 160.50. (Id.). Although the Law Department furnished TWG with two Section 160.50 Releases (each captioned "Designation of Agent for Access to Sealed Records Pursuant to NYCPL 160.50[1][d]"), Cabble has not signed and returned them as requested in the letters. (Mem. in Supp. of City Mot. at 3). Instead, he has conditioned his execution of the releases on the City's agreement to a confidentiality stipulation, pursuant to which the City would withhold any information obtained from the sealed files from the individual defendants until they have filed answers and this Court has ruled on his motion to disqualify the Storch firm. (See Mem. in Supp. of City Mot. at 3; Pl.'s Mem. in Opp'n to City Mot. at 2).

III. Discussion

A. Disqualification

As the Second Circuit has noted, disqualification motions interfere with the ability of parties to choose their own counsel, often are employed for tactical reasons, and, even in the best of circumstances, cause delay. Bd. of Educ. v. Nyquist, 590 F.2d 1241, 1246 (2d Cir. 1979); Gov't of India v. Cook Indus., Inc., 569 F.2d 737, 739 (2d Cir. 1978).Accordingly, a party moving for disqualification carries a "heavy burden," Evans v. Artek Sys. Corp., 715 F.2d 788, 794 (2d Cir. 1983), and must satisfy a "high standard of proof." Gov't of India, 569 F.2d at 739. Although the conclusion in any particular case "can be reached only after painstaking analysis of the facts and precise application of precedent," United States v. Standard Oil Co., 136 F. Supp. 345, 367 (S.D.N.Y. 1955), the question ultimately is one of preserving the public's trust in the "scrupulous administration of justice and in the integrity of the bar." Hull v. Celanese Corp., 513 F.2d 568, 572 (2d Cir. 1975). For that reason, any lingering doubt must be resolved in favor of disqualification. Id. at 571.

In this case, Cabble seeks to disqualify the Storch firm on the basis of several disciplinary rules which address the ability of an attorney to serve as a witness in a proceeding in which he or she also proposes to function as a party's advocate. To the extent that these rules deal with circumstances in which a party seeks to call its own attorney as a witness, they clearly are inapplicable here since there has been no showing that the individual defendants will seek to call anyone affiliated with the Storch firm as a witness on their behalf. See A.V. by Versace v. Versace, 160 F. Supp. 2d 657, 663-64 (S.D.N.Y. 2001).

Thus, the only colorable claim that Cabble can advance under the rules relates to the ethical proscription against an attorney serving as counsel in a litigated matter in which the attorney may be called as a witness by the other side and required to give testimony adverse to the interests of the attorney's client. In that regard, Disciplinary Rule 5-102(b) of the New York Code of Professional Responsibility states as follows:

Neither a lawyer nor the lawyer's firm shall accept employment in contemplated or pending litigation if the lawyer knows or it is obvious that the lawyer or another lawyer in the lawyer's firm may be called as a witness on a significant issue other than on behalf of the client, and it ...

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