Disqualification of Opposing Lawyer, Who Was a Key Participant in Failed Contract Negotiations, Denied — No Right to Call Opposing Counsel to Corroborate Own Witnesses’ Testimony

From Lincoln Provision, Inc., v.Aron Puretz, PMP LLC, 2011 U.S. Dist. LEXIS 86475 (D. Neb. Aug. 4, 2011):

The Defendants moved to disqualify Plaintiff's counsel, David Domina, on the theory that Domina is a necessary witness in this action***.

Defendants note that Domina participated in unsuccessful negotiations for an operating agreement between the parties, and that the facts of the negotiation process are relevant, if not central, to issues in this case. In the Defendants' Brief, they note that they will call as a witness Robert Rimberg, the lawyer who participated in the negotiation process on behalf of the Defendants, and that Domina was the only lawyer participating in the negotiations on behalf of the Plaintiff. *** The Defendants contend that the negotiation process collapsed due to the Plaintiff's overreaching and sharp practices, and that "[s]ubstantial evidence supporting these contentions [is] found in or framed by multiple telephone conversations in which only Domina was present." *** Defendants add that "negotiations were crystallized in telephone conversations between the two attorneys during which, from Puretz's point of view, a lack of fair dealing and good faith were most poignantly shown." *** While is it apparent that a telephone "conversation" must involve more than one person, and while it appears that Rimberg is competent to testify to what was said in those conversations, the Defendants "seek corroboration from Domina as a fact witness on those same telephone conversations and related matters." ***

Defendants refer the Court to no authority suggesting that a party has a right to call adverse counsel as a witness for the purpose of corroborating the testimony of its own witnesses. Defendants then suggest that "there will be [a] tremendous awkwardness" if Domina questions Rimberg on these subjects in the presence of the jury, and that this Court "may reasonably feel obliged to place limitations on [the] factual testimony and arguments directed toward Domina's role in the negotiation process in order to preserve decorum in the courtroom as well as properly pay homage to the separate roles of advocate and witness in a jury trial." ***

At this time, there is no persuasive evidence before the Court indicating that Domina has non-privileged information that is not readily available through other witnesses. As to the telephone conversations, Rimberg can testify to what Domina said and how he said it. There does not appear to be any issue as to inadmissible hearsay. While it appears that the Plaintiff may be at some disadvantage not being in a position to call Domina as a witness, that is the Plaintiff's choice. As to awkwardness, decorum, and homage, the Court will maintain each at its appropriate level at the time of trial.

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