The opinion of the court was delivered by: Brooks, United States Magistrate Judge
ORDER CONDITIONALLY DENYING PLAINTIFF'S MOTION TO (1) DISQUALIFY PETER
AND TODD SORRELL AS DEFENDANT'S ATTORNEYS AND (2) DISQUALIFY OR STRIKE
HARRIS AS DEFENDANT'S EXPERT WITNESS AND RULING ON OBJECTIONS [DOC.
119, 162, 165]
On March 22, 2004, this Court heard oral arguments on Plaintiff's Motion to (1) Disqualify Peter Mason and Todd Sorrell as Defendant's Attorneys and (2) Disqualify or Strike Jeffrey Harris as Defendant's Expert Witness [Doc. No. 119]. Gordon Churchill and Raul Cadena, of Cadena Churchill, LLP, appeared on behalf of Plaintiff Roger T. Crenshaw, M.D. Peter Mason and Todd Sorrell, of Fulbright & Jaworski, appeared on behalf of Defendant MONY Life Insurance Company. At the conclusion of the hearing, the Court requested supplemental briefs addressing certain issues raised during the proceeding. On April 1, 2004, Plaintiff and Defendant each filed a supplemental brief and supplemental declarations.A continued hearing on Plaintiff's Motion was held on April 12, 2004. Gordon Churchill and Raul Cadena, of Cadena Churchill LLP, again appeared as counsel for Crenshaw. Peter Mason, of Fulbright & Jaworski, appeared for Defendant MONY Life Insurance. The Court subsequently issued a minute order denying Plaintiff's motion and indicating that this memorandum decision would follow [Doc. No. 182].
After considering the parties' pleadings and oral arguments, Plaintiff's Motion to Disqualify is conditionally denied for the reasons outlined below.
In 1976, Plaintiff Roger T. Crenshaw purchased a disability insurance policy from Mutual of New York Life Insurance Company, now MONY Life Insurance. (Pl.'s Decl. Supp. Mot. at 2.) Plaintiff maintained continuous disability coverage through October of 1998. (Id.) At that time, Dr. Crenshaw claimed he was unable to continue practicing as a psychiatrist because of tinnitus and filed a claim for disability benefits under his policy with the Defendant. (First Am. Compl. at 3.)
Plaintiff met with Dr. Bone on September 28, 1998, to evaluate Crenshaw's worsening condition, and Dr. Bone referred him to Dr. Harris for a consultation. (Def.'s Supplemental Opp'n Sorrell Decl. (hereafter "Supplemental Sorrell Decl.") Ex. C [Depo. of Dr. Bone] at 33.) The outpatient notes of Plaintiff's examination, dated October 22, 1998, read: "Consult, referred by Dr. B[illegible]," and were signed by Dr. Byrne and cosigned by Dr. Harris. (Id. Ex. B.) On February 22, 1999, MONY began making payments to Crenshaw. (Answer at 3.)
In May of 2002, an adjuster employed by Defendant visited Crenshaw's home for the purpose of investigating the claim. (First Am. Compl. at 4.) Subsequently, on October 18, 2002, MONY denied Crenshaw's claim and stopped making payments. (Id.) This lawsuit was filed one week later. (Compl.)
On March 14, 2003, Plaintiff's initial disclosures were served; Dr. Harris was not identified as a person likely to have relevant information. (Def.'s Opp'n Sorrell Decl. (hereafter "Sorrell Decl.") Ex. A at 2.) Four days later, the Plaintiff supplemented the disclosures; again, Dr. Harris was not identified. (Id. Ex. B at 2.) Nevertheless, in both disclosures, Dr. Bone was named.
In its initial disclosures, Defendant MONY listed Dr. Harris as an individual likely to have discoverable information. (Supplemental Sorrel Decl. Ex. A at 23.) The parties subsequently entered into a Stipulated Protective Order, which was filed on May 15, 2003 [Doc. No. 32]. The Protective Order, however, only addressed the confidentiality of Defendant's documents and information.
All discovery in this case was to be completed by November 24, 2003, pursuant to the Court's Case Management Conference Order [Doc. No. 19]. This Motion was filed on November 26, 2003, two days after the discovery cutoff. Accompanying Plaintiff's Motion were the declarations of Plaintiff, Plaintiff's counsel, and attorney Daniel M. White. Defendant filed its Opposition, with declarations of counsel, Todd Sorrell, and Dr. Jeffrey Harris. Each side raised objections to the declarations of the other [Doc. Nos. 162, 165]. The district court referred Crenshaw's Motion to this Court for resolution on March 9, 2004 [Doc. No. 171]. *fn1
B. Contacts With Dr. Harris
Plaintiff's first and only contact with Dr. Harris occurred on October 22, 1998, when Crenshaw was referred to him for a consultative examination. (Def.'s Opp'n Harris Decl. (hereafter "Harris Decl.") at 17.) Dr. Harris examined Crenshaw and conducted several tests, including an ear exam, audiogram and blood tests. (Churchill Decl. Supp. Mot. Ex. B at B-7.) The results of the ear examination and blood tests were normal, but the audiogram displayed a rapid decline from a previous audiogram, as well as a "disturbing" drop in speech discrimination scores. (Id.) According to Dr. Harris, aside from the consultative examination on October 22, 1998, he has never provided any treatment or care to Crenshaw. (Harris Decl. at 17.) On November 14, 2002, Crenshaw revoked the authorization previously given to Scripps Clinic to release his confidential medical records. (Churchill Decl. Supp. Mot. Ex. A.)
Defense counsel indicated that Dr. Harris might be a relevant
percipient witness on March 14, 2003, when Dr. Harris was named in
Defendant's initial disclosures. (Sorrell Supplemental Decl. at 16.)
Defense counsel had no contact with Dr. Harris until September of 2003.
At that time, Alex Medina, an associate employed by
defense counsel, independently and apparently without knowledge of Dr.
Harris's involvement as a potential fact witness, contacted
Dr. Harris. (Id. at 17.) Medina was attempting to locate an expert in
tinnitus. (Id.) Attorney Sorrell spoke by phone with Dr.
Harris on October 2, 2003, and asked if he had treated the Plaintiff;
Dr. Harris replied that he had not, and he "did not recall
providing any consultation and treatment to Crenshaw." (Id.) On October
10, 2002, Sorrell traveled to San Diego and met with Dr.
Harris in person; Dr. Harris reiterated his belief that he had not
examined or treated Crenshaw. (Id.)
Sometime after that meeting, while reviewing documents, Sorrell saw the medical chart note which indicated that Dr. Harris had, in fact, met and examined Crenshaw on October 22, 1998. (Id.) Sorrell called the doctor on October 16, 2003, to bring the chart note to his attention. (Id. at 17- 18.) Dr. Harris explained that a resident physician at Scripps Clinic, Dr. Byrne, was the individual who conducted the examination and wrote the note; Dr. Harris supervised the examination and cosigned the chart note. (Id. at 18.)
Dr. Harris completed his expert report by October 23, 2003. (Id.) Thereafter, on November 3, 2003, Plaintiff's counsel attempted to speak directly with him; Sorrell objected but indicated the doctor would be made available for a deposition. (Sorrell Decl. Ex. F.) On November 5, 2003, Plaintiff noticed the deposition for November 19, 2003. (Sorrell Decl. at 20- 21.) Defense counsel subsequently checked with Dr. Harris and learned that he was not available on the date selected by Crenshaw's counsel. (Id. at 21.) Sorrell then wrote to Plaintiff's counsel that the doctor was available for deposition on December 1, December 8, or December 12. (Id. at Ex. H.) Although Plaintiff made numerous attempts to schedule a deposition prior to the November 24th discovery cutoff, MONY did not produce Dr. Harris prior to that date. (Pl.'s Mem. at 10; Def.'s Opp'n at 12-14.) Despite MONY's offers to produce Dr. Harris for deposition shortly after the cutoff, Crenshaw rejected those offers. On November 26, 2003, Plaintiff filed this motion.
A. Disqualification of Counsel
The disqualification of counsel because of an ethical violation is a discretionary exercise of the trial court's inherent powers. See United States v. Wunsch, 84 F.3d 1110, 1114 (9th Cir.1996); see also Visa U.S.A., Inc. v. First Data Corp., 241 F.Supp.2d 1100, 1103-04 (N.D.Cal.2003). However, disqualification is a drastic measure that is disfavored. Visa U.S.A., Inc. v. First Data Corp., 241 F.Supp.2d at 1104. Because they are often tactically motivated, motions to disqualify "should be subjected to particular judicial scrutiny." Optyl Eyewear Fashion Int'l Corp. v. Style Cos., 760 F.2d 1045, 1050 (9th Cir.1985)(internal citations omitted). Even a violation of the California Rules of Professional Conduct does not automatically compel disqualification. Gregori v. Bank of America, 207 Cal.App.3d 291, 303, 254 Cal.Rptr. 853, 860 (Cal.Ct.App.1989.) The court's decision on a motion to disqualify is reviewed for an abuse of discretion. See Gas-A-Tron of Ariz. v. Union Oil Co., 534 F.2d 1322, 1325 (9th Cir.1976).
When deciding whether disqualification of counsel is appropriate, some courts consider whether the attorney's conduct would taint the trial or legal proceedings in a way that would deprive the parties of a fair trial. See FDIC v. Isham, 782 F.Supp. 524, 528 (D.Colo.1992). "[T]he paramount concern must be the preservation of public trust both in the scrupulous administration of justice and in the integrity of the bar." State Farm Mut. Auto. Ins. Co. v. Federal Ins., 72 Cal.App.4th 1422, 1428, 86 Cal.Rptr.2d 20, 24 (Cal.Ct.App.1999).
Other courts, when considering whether to disqualify an attorney for improper ex parte communications, have weighed the balance among "(1) the client's interest in being represented by counsel of its choice; (2) the opposing party's interest in a trial free from prejudice due to disclosure of confidential information; and (3) the public's interest in the scrupulous administration of justice." Faison v. Thornton, 863 F.Supp. 1204, 1216 (D.Nev.1993) (citing Meat Price Investigators Ass'n v. Spencer Foods, 572 F.2d 163, 165 (8th Cir.1978)); see also Complaint of Korea Shipping Corp., 621 F.Supp. 164 (D.Alaska 1985).
Recently, in Snider v. Superior Court, 113 Cal.App.4th 1187, 1197-98, 7 Cal.Rptr.3d 119, 125 (Cal.Ct.App.2003), the court explained that it was important to have a bright-line test to determine the ethical boundaries of an attorney's conduct.
"[O]therwise, an attorney would be uncertain whether the rules had been violated until ... he or she is disqualified. Unclear rules risk blunting an advocate's zealous representation of a client." Id. (quoting Nalian Truck Lines, Inc. v. Nakano Warehouse & Transp. Corp., 6 Cal.App.4th 1256, 1264, 8 Cal.Rptr.2d 467, 472 (1992)). This case illustrates that what is perceived to be a bright-line test may, nonetheless, be difficult to apply.
Plaintiff contends that this Court's local rules and an attorney's ethical obligations were violated by defense counsel's ex parte contacts with Dr. Harris. (Pl.'s Mem. at 7.) Local rules provide that "any attorney permitted to practice in this court shall be familiar with and comply with the standards of professional conduct required of members of the State Bar of California...." S.D. Cal. Civ. L.R. 83.4.
Crenshaw's argument rests primarily on opinions issued by the California Bar Association Committee on Legal Ethics, the San Diego Bar Association Committee on Legal Ethics, and ABA Ethics Code 7-38. Both committee opinions suggest that a defense attorney should not contact a plaintiff's treating physician without giving prior notice to plaintiff's counsel. (Pl.'s Mem. at 4-6, citing Cal. Bar Ass'n Comm. ...