Carbo Ceramics, Inc. v. Norton-Alcoa Proppants

155 F.R.D. 158, 31 U.S.P.Q. 2d (BNA) 1631, 1994 U.S. Dist. LEXIS 6394, 1994 WL 170816
CourtDistrict Court, N.D. Texas
DecidedMarch 9, 1994
DocketCiv. A. Nos. 3-89-CV-3075-X, 3-92-CV-1400-X
StatusPublished
Cited by3 cases

This text of 155 F.R.D. 158 (Carbo Ceramics, Inc. v. Norton-Alcoa Proppants) is published on Counsel Stack Legal Research, covering District Court, N.D. Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Carbo Ceramics, Inc. v. Norton-Alcoa Proppants, 155 F.R.D. 158, 31 U.S.P.Q. 2d (BNA) 1631, 1994 U.S. Dist. LEXIS 6394, 1994 WL 170816 (N.D. Tex. 1994).

Opinion

ORDER

SANDERSON, United States Magistrate Judge.

Pursuant to the District Court’s order of reference filed on November 23, 1993, on February 23, 1994, came on to be heard Plaintiffs’ Motion to Disqualify Defendants’ Counsel filed on November 22, 1993, and having considered the evidence presented, the relevant briefs of the parties and the arguments of their counsel, the court finds and orders as follows:

HISTORY OF THE CASE:

On December 6, 1989, Plaintiffs Carbo Ceramics, Inc. and A/S Niro Atomizer (hereinafter referred to as Carbo) filed their complaint against Norton-Alcoa Proppants, Norton Proppants, Inc. and Alcoa Proppants, Inc. (hereinafter referred to as Norton-Alcoa) in this court, which was docketed in CA3-89-3075-R and assigned to the Hon. Jerry Buchmeyer.

On June 1, 1992, the above action was reassigned to the Hon. Joe Kendall. Thereafter Judge Kendall consolidated a subsequently filed complaint docketed in No. 3-92-CV-1400-X with CA3-89-3075-X and administratively closed 3-92-CV-1400-X.

On October 29, 1992, Judge Kendall entered a scheduling order which in pertinent part imposed a discovery deadline of May 31, 1993, required the proposed pretrial order to be filed by July 19, 1993, with a jury trial setting for August 2, 1993. On the same date the court ordered the parties to mediation.

On June 8, 1993, an amended scheduling order was entered requiring the proposed pretrial order to be filed by August 23,1993, and resetting the trial for September 7,1993. Between the dates of August 23, 1993 and September 3, 1993, the parties filed numerous pleadings, including those required under the District Court’s scheduling order and the Local Rules as well as various motions to exclude specific categories of evidence (See Items 226 through 290 listed on the docket sheet).

The case was not tried on September 3, 1993 and on September 15,1993, Judge Ken[160]*160dall filed a written order rescheduling the case for jury trial on November 4, 1994. THE INVOLVEMENT AND PARTICIPATION OF BENJAMIN ADLER:

Since Plaintiffs’ motion relates solely to the activities and employment of Benjamin Adler, it is appropriate to set out the facts of his work history and activities as they relate to the present action. The facts are largely undisputed1 and are set out briefly and are amplified hereinafter as necessary.

While attending the Boston University School of Law, Mr. Adler was employed as a law clerk and summer associate at the Boston office of Fish & Richardson from January 1989 to July 1989 (Defendants’ Hearing Exhibit 11). Following a second law clerk position, he accepted a position with Pravel, Gambrell, Hewitt, Kimball & Kreiger, the predecessor to Plaintiffs’ present counsel in June 1990 (Id.). On November 2, 1990, Adler was licensed to practice law by the Supreme Court of Texas (Defendants’ Hearing Exhibit 36 — Deposition of Benjamin Adler at pages 110-111).

While employed at the Pravel law firm Adler billed 216.5 hours of time for work performed for Carbo between June 15, 1990 and July 22,1991 (Plaintiffs’ Hearing Exhibit 2 — Affidavit of James H. Riley II and attachments).

In August 1991 Adler left the Pravel firm to accept employment as an associate with Fulbright & Jaworski’s Houston office (Defendants’ Hearing Exhibit 11). Prior to accepting employment a member of the Fulbright & Jaworski firm contacted a partner at the Pravel firm to insure that his employment would not create a conflict with regard to common clients (Defendant’s Hearing Exhibit 36 — Deposition of Benjamin Adler at pages 204-205).

In the summer of 1993 Adler was contacted by Gail Kaplan regarding the possibility of employment at the Fish & Richardson firm’s Houston office. Following this contact Adler met with Fish & Richardson attorneys. The fact of his prior employment with the Pravel firm was raised at a dinner meeting in July 1993 attended by Adler and Fish & Richardson attorneys, including Michael Sutton, (Defendants’ Hearing Exhibit 2 — Affidavit of Michael O. Sutton at ¶ 15.C-D). Although the recollections of Mr. Sutton and Mr. Adler are not congruent in all respects, the evidence does show that Adler did not disclose the specifics of the work he performed on the present case at the Pravel firm and that the Fish & Richardson attorneys were left with the impression that his work product at the Pravel firm was on “generic” matters, rather than on substantive issues.

Approximately a week after the dinner meeting Mr. Sutton extended a job offer to Mr. Adler. Adler accepted the offer, but did not join Fish & Richardson’s Houston office until October 4, 1993 (See Defendants’ Hearing Exhibit 2, Attachment A — Affidavit of Benjamin Adler at ¶4).

On November 1, 1993, James H. Riley II wrote Mr. Sutton informing him that Adler had billed in excess of 200 hours in this case while at the Pravel firm and advised him that Plaintiffs were going to file a motion to disqualify Sutton and his law firm from further representation in the case (Plaintiffs’ Hearing Exhibit 1).

On November 2, 1993, Mr. Sutton sent a memo to all Fish & Richardson attorneys informing them that Mr. Adler was being “Chinese-walled” and gave instructions for all employees to follow (Plaintiffs’ Hearing Exhibit 3). At the same time Sutton sent a memo to Mr. Adler instructing him not to have any contact with anyone in the firm regarding the case (Plaintiffs’ Hearing Exhibit 4).

Following consultation with outside counsel, Fish & Richardson terminated Mr. Adler’s employment on December 3, 1993.

During the time that Adler was employed at Fish & Richardson he did no work on this case, never had access to any materials with [161]*161regard to this action and was never asked to divulge any information regarding the case, nor did he disclose any information which he had obtained while employed at the Pravel firm.2

THE APPLICABLE LAW:

Under the established precedents of this Circuit, motions to disqualify counsel are determined by applying federal law which may be informed by state and national standards as a federal court in its discretion sees fit to apply, e.g. In re American Airlines, Inc., supra at 610; In re Dresser Industries, Inc., 972 F.2d 540, 543 (5th Cir.1992). Of course, it goes without saying that the court’s discretion is circumscribed by Fifth Circuit law explicating the standards to be applied.

Where an issue of prior representation is involved, the Fifth Circuit applies a substantial relationship test, to wit:

“A party seeking to disqualify opposing counsel on the ground of a former representation must establish two elements: (1) an actual attorney-client relationship between the moving party and the attorney he seeks to disqualify and (2) a substantial relationship between the subject matter of the former and present representations.” In re American Airlines, supra at 614 (Citations omitted).

The task of deciding whether a substantial relationship exists — frequently a daunting and difficult task, e.g. Brennan’s, Inc. v. Brennan’s Restaurants, Inc., 590 F.2d 168, 173-74 (5th Cir.1979); Hydril Co. v. Multi-flex, Inc., 553 F.Supp. 552, 554 (S.D.Tex.

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155 F.R.D. 158, 31 U.S.P.Q. 2d (BNA) 1631, 1994 U.S. Dist. LEXIS 6394, 1994 WL 170816, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carbo-ceramics-inc-v-norton-alcoa-proppants-txnd-1994.