Williams v. Kopco, Inc.

162 F.R.D. 670, 1995 U.S. Dist. LEXIS 11488, 1995 WL 472769
CourtDistrict Court, D. Kansas
DecidedJuly 26, 1995
DocketNo. 94-1451-FGT
StatusPublished
Cited by5 cases

This text of 162 F.R.D. 670 (Williams v. Kopco, Inc.) is published on Counsel Stack Legal Research, covering District Court, D. Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Williams v. Kopco, Inc., 162 F.R.D. 670, 1995 U.S. Dist. LEXIS 11488, 1995 WL 472769 (D. Kan. 1995).

Opinion

ORDER

REID, United States Magistrate Judge.

The first motion before the court, filed April 4, 1995, is plaintiffs motion for an order compelling the defendant’s participation in the discovery process and for sanctions against defendant for failure to participate in the discovery process (Doc. 32). Plaintiff contends there is no conflict of interest, as alleged by defense counsel, by plaintiffs counsel representing the defendant in a collection matter which, plaintiffs counsel claims, was finalized prior to the commencement of the instant case. Defendant requests that the Court deny plaintiffs motion on the grounds of plaintiffs counsel’s alleged “conflict of interest in the simultaneous, adverse representation of plaintiff and defendant without notice and consent” which was the reason for defense counsel’s termination of depositions.

This court must determine whether discovery should be stayed until the conflict of interest issue has been decided. The question here is whether plaintiffs counsel’s previous representation of KOPCO placed [672]*672plaintiffs counsel in a position such that any depositions they ordered of present and past employees of KOPCO would be potentially prejudicial to KOPCO, the defendant in the instant case.

The uncontested facts are as follows: Mr. Dan Turner, of the Turner and Turner law firm, is counsel for plaintiff, Shirley Williams, in the instant case. Plaintiff seeks damages from defendant as a result of personal injuries sustained on defendant’s premises on or about November 23, 1992. Plaintiff seeks other damages from defendant as the result of the breach of an alleged oral employment contract with defendant. The law offices of Turner & Turner established an attorney-client relationship with Shirley K. Williams prior to September 12, 1989 for purposes of bankruptcy proceedings.

Defendant in the instant case is KOPCO, Inc., a closely-held, family corporation engaged in the printing business. On or about December 27, 1989 KOPCO retained the Turner & Turner law firm in a collection matter against a Mr. Woodward d/b/a Kaw Valley Consumer. Specifically, Mr. Turner’s law firm advised Mr. Jim Patton, then the Business or General Manager of KOPCO, in the matter involving Mr. Woodward. The last correspondence with regard to the Woodward matter between Mr. Turner and KOPCO was in January 1993. (See Defendant’s Exhibits F & G)

Mr. Dan Turner, of the Turner & Turner law firm, seeks to compel discovery, through deposition, of Mr. Jim Patton, now no longer employed by KOPCO, in the instant case. Mr. Turner claims that the time period between January 1993, when the matter with Mr. Woodward was resolved, and the current time is sufficient to preclude a claim of conflict of interest. Defendant does not agree, claiming an existing attorney-client relationship between Mr. Turner and KOPCO.

It is the view of this court that until the matter of the potential conflict of interest has been resolved, discovery should not proceed. While not wanting to rule on the matter of conflict of interest, this court believes that the uncontested facts are sufficiently compelling in the case to present a bias against defendant by having Mr. Patton answer deposition questions put to him by Mr. Turner or a member of Mr. Turner’s firm. The court is particularly concerned about the fact that Mr. Turner admits, in an October 19, 1993 letter to Mr. Kenneth George, President of KOPCO, that “[i]n January of this year my office advised your company, more particularly Jim Patton.” (defendant’s exhibit G) For Mr. Turner to now request a deposition of Mr. Patton presents this court with a dilemma best resolved by the district court on the. potential attorney-client conflict of interest issues raised by defendant.

Furthermore, it has been alleged by the defendant KOPCO that Mr. Turner’s representation of plaintiff in the instant case, Shirley K. Williams, coincides with Mr. Turner’s representation of KOPCO on the Woodward matter. This is a fact question that this court cannot decide. However, the mere allegation of such an attorney-client conflict of interest is sufficient to stay discovery until the district court resolves the issue of conflict of interest.

IT IS THEREFORE ORDERED that the motion to compel and for sanctions is denied.

IT IS FURTHER ORDERED that all discovery is stayed, except for discovery pertaining to the motion to disqualify. The stay order will remain in effect until the district court rules on the motion to disqualify.

A second motion before this court is a request by defendant for protective orders, pursuant to F.R.Civ.P. 26(e)(1) and (2), directing that depositions served by plaintiff upon defendant’s counsel, Timothy J. Finnerty and Dustin L. DeVaughn, not be had because they either bear no relevance to defendant’s previously filed motion to disqualify plaintiffs counsel or, alternatively, are premature (Doe. 45). Defendant further seeks an order delaying defendant’s responses to plaintiffs written discovery until the court can conduct a discovery conference to tailor discovery on the motion to disqualify plaintiffs counsel.

[673]*673The plaintiff claims that she is entitled to see the correspondence and documents exchanged between the defendant and defendant’s counsel concerning plaintiffs counsel’s alleged conflict of interest in order to properly respond to the defendant’s motion to disqualify plaintiffs counsel. In the alternative plaintiff requests that defendant’s counsel be required to prepare a privilege log prior in order for plaintiffs counsel to determine which documents might lead to relevant information concerning the allegations of a conflict of interest while allowing the Court to review said documents and determine their relevancy and materiality thereupon allowing defendant’s counsel to be deposed at that time.

In response to plaintiffs objections to this motion, defendant raises no objection to any of plaintiffs written discovery. Defendant asks that the responses to the written discovery be delayed until the court can conduct a discovery conference with the parties to develop a plan for discovery on the motion to disqualify plaintiffs counsel.

The first issue concerns the depositions of defendant’s counsel. This court has previously ruled on this very issue, in Kelling v. Bridgestone/Firestone, Inc., 153 F.R.D. 170, 171 (D.Kan.1994), which involves an identical factual situation. As this court held in Kelling, deposing opposing counsel should only be permitted when it has been shown that: (1) no other means exist to obtain the information than to depose opposing counsel, (2) the information sought is relevant and nonprivileged, and (3) the information is crucial to the preparation of the case. Plaintiff has failed to demonstrate that no other means exist to obtain the information than to depose opposing counsel. The court directs plaintiff to Kelling as to alternative discovery means which may be undertaken in this situation. In addition, plaintiff has failed to demonstrate how the information sought is relevant, and if relevant, is crucial to the issue of the motion to disqualify. Therefore, plaintiff has failed to meet any of the standards set forth in Kelling.

The second issue is in regards to the deposition of Ken George, president of the defendant company. The court finds no reason why this deposition should not proceed; there is no need to await a discovery conference before this deposition is taken.

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Cite This Page — Counsel Stack

Bluebook (online)
162 F.R.D. 670, 1995 U.S. Dist. LEXIS 11488, 1995 WL 472769, Counsel Stack Legal Research, https://law.counselstack.com/opinion/williams-v-kopco-inc-ksd-1995.