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Dolenec v. Pressler & Pressler LLP

United States District Court, S.D. New York

November 24, 2014

DON DOLENEC, Plaintiff,
v.
PRESSLER & PRESSLER L.L.P., Defendant.

MEMORANDUM AND ORDER

KEVIN NATHANIEL FOX, Magistrate Judge.

The plaintiff commenced this action alleging unfair practices and false and misleading representations, under the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. §§ 1692f and 1692e, and deceptive acts and practices, under New York General Business Law § 349. Before the Court are the plaintiff's motions in limine to: (1) disqualify Mitchell L. Williamson, Esq. ("Williamson") from representing the defendant, pursuant to Rule 3.7(a) of the New York Rules of Professional Conduct; and (2) preclude the defendant's proposed trial exhibit Nos. 2, 3, 5, 6, 7, 10, 11, 13, 14, 25, 26, 27 and 28, pursuant to Rules 26 and 37 of the Federal Rules of Civil Procedure. The defendant opposes the motions.

MOTION TO DISQUALIFY WILLIAMSON

Plaintiff's Contentions

The plaintiff contends that Williamson submitted the certification, in support of the defendant's motion for summary judgment, through which he offered expansive, detailed factual testimony regarding the plaintiff's default in a separate action, the defendant's debt collection activities concerning the plaintiff and the investigation by the New York attorney general into the defendant and "the junk process server" used by the defendant. Based on that testimony, the plaintiff named Williamson as a fact witness to be called to testify at trial during his case-in-chief. The plaintiff contends that Williamson's testimony is necessary to present fully his case at trial, since he possesses critical information beyond that of his role as counsel in this case and, as such, will be a key witness in the plaintiff's case-in-chief. According to the plaintiff, Williamson's testimony will be prejudicial to the defendant, including whether the defendant knew that the affidavit of service at issue in this action could have been fraudulent and when and how the defendant obtained that knowledge. Thus, a substantial likelihood exists that the testimony elicited from Williamson will be adverse to the defendant's factual assertions such that the defendant will have an interest in discrediting Williamson's testimony. The plaintiff asserts that the jury will be confused if Williamson "has to shuffle from counsel's table to the witness box during trial, " and he should be disqualified from acting as the defendant's counsel.

Defendant's Contentions

The defendant contends that the motion to disqualify counsel should be denied because: (1) it is untimely, since the plaintiff knew about Williamson's involvement in the underlying matter prior to filing this action; and (2) the plaintiff "cannot meet the heavy burden of showing that Mr. Williamson's testimony is necessary and that there exists a substantial likelihood that the testimony would be prejudicial to Pressler." According to the defendant, the plaintiff's attorney knew that Williamson handled the Serves You Right matter as in-house defense counsel, but he waited, unduly, until the eve of trial to make a motion to disqualify counsel, which is a "tactical maneuver meant to cause delay to the Court and disadvantage to Pressler." The defendant asserts that no evidence exists that Williamson had any involvement in the defendant's collection activities, and Williamson's certification "was nothing more than a recitation of Pressler's books and records." The defendant maintains that "Williamson had no personal conversations with any third parties regarding the circumstances in which the [Assurance of Discontinuance] was entered with the [New York attorney general]." The defendant asserts that, in support of its motion for summary judgment, it submitted a certification of Tara Russo ("Russo"), adopting all paragraphs of Williamson's certification, and she was designated as the defendant's witness under Rule 30(b)(6) of the Federal Rules of Civil Procedure. The plaintiff "was on notice that an alternative witness exists to address all of Pressler's books and records and anything contained in the Williamson Cert., " and he cannot maintain his claim that Williamson's testimony is necessary. The defendant contends that Williamson did not participate in the underlying collection activities and, to the extent that he participated in the defendant's "Assurance of Discontinuance, " "all information is set forth in Pressler's books and records." Moreover, the plaintiff cannot show that a substantial likelihood exists that Williamson's testimony would be prejudicial, since "[t]here is nothing that was solely within the personal knowledge of Mr. Williamson, " and his "knowledge" could not be prejudicial to the defendant. The defendant contends that disqualifying Williamson would delay the trial and impose substantial hardship on the defendant, since Williamson is an in-house counsel, and the defendant "does not have another attorney licensed in the Southern District of New York with (a) the years of experience, (b) the familiarity with the FDCPA and (c) the familiarity with the legal issues involved in this case as Mr. Williamson." According to the defendant, if Williamson is disqualified, it "would have no choice but to seek outside counsel and incur additional costs and expenses to replace the distinctive value of Mr. Williamson in FDCPA cases."

In support of the defendant's opposition to the instant motion, Williamson submitted his certification, stating:

My involvement in the Serves You Right Assurance of Discontinuance was limited to the communications documented via e-mail and previously produced to Plaintiff's counsel. Those documents speak for themselves and are part of Pressler's books and records.... The undersigned had no personal conversations with any third parties with respect to the AOD in the Serves You Right matter.... The Certification the undersigned previously submitted in support of Pressler's motion for summary judgment (ECF Doc. 17), was based upon knowledge obtained from Pressler's books and records. That certification was subsequently withdrawn and resubmitted by Pressler's Fed.R.Civ.P. 30(b)(6) witness.

Plaintiff's Reply

The plaintiff contends that the timing of his motion is a result of the defendant's failure to identify Williamson as a witness, as required by Rule 26(a) or (e) of the Federal Rules of Civil Procedure. The plaintiff asserts that it was not until Williamson submitted his certification in support of the defendant's motion for summary judgment that he was made aware of Williamson's potential to be a key witness for the plaintiff's case. According to the plaintiff, the defendant's contention that Williamson's testimony is not necessary and that his certification is "nothing more than a recitation of Pressler's books and records" is meritless because the defendant has not produced those records. Moreover, the defendant's Rule 30(b)(6) witness, Russo, is not an alternative witness to Williamson because she admitted during her deposition that "she was clueless regarding many critical events related to this case until Williamson enlightened her, " and "[a]ny of Russo's limited, post-factum knowledge comes from Williamson." The plaintiff asserts that Williamson's testimony will be prejudicial to the defendant because "Pressler's success at trial will hinge largely on its ability to discredit Williamson." Since Williamson has argued that the defendant is free from any wrongdoing in this case and, at minimum, evidence exists that his assertion may be untruthful, given that the defendant's "Assurance of Discontinuance" states that the defendant obtained default judgments against consumers who were not properly served. The plaintiff asserts that, in light of the extent of Williamson's personal knowledge regarding the defendant's actions with respect to the plaintiff, he "should have anticipated this conflict and should have advised Pressler to obtain outside counsel." Alternatively, when Williamson submitted his testimony in support of the defendant's motion for summary judgment, another attorney for the defendant could have stepped in easily, but the defendant chose to ignore the potential need for Williamson's testimony. The plaintiff asserts that, given the number of attorneys affiliated with the defendant and the limited record, it will not be difficult for another attorney to represent the defendant adequately at trial, and "doing so will have the collateral benefit of allowing Williamson to attend his pre-planned vacation.'"

Discussion

A lawyer shall not act as advocate before a tribunal in a matter in which the lawyer is likely to be a witness on a significant issue of fact unless: (1) the testimony relates solely to an uncontested issue; (2) the testimony relates solely to the nature and value of legal services rendered in the matter; (3) disqualification of the lawyer would work substantial hardship on the client; (4) the testimony will relate solely to a matter of formality, and there is no reason to believe ...

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