United States District Court, E.D. Michigan, Southern Division
Avern
Cohn, District Judge.
OPINION AND ORDER DENYING ELITE DEFENDANTS' AND
CHINTAN DESAI'S LETTER REQUESTS FOR LEAVE TO FILE MOTION
TO DISQUALIFY STATE FARM'S COUNSEL AND EXCLUDE
UNETHICALLY OBTAINED EVIDENCE (DES 488, 501)
ANTHONY P. PATTI, UNITED STATES MAGISTRATE JUDGE.
I.
Introduction
This
matter is before the Court for consideration of
Defendants' Elite Health Centers, Inc., Elite
Chiropractic, P.C., Elite Rehabilitation, Inc. (“The
Elite Defendants”), and Chintan Desai, M.D.'s
letter requests for leave to file a motion to disqualify
State Farm Mutual Automobile Insurance Company's
(“State Farm's”) counsel and to exclude
unethically obtained evidence, (DEs 488, 501), and Plaintiff
State Farm's letter responses in opposition. (DEs 490,
492.)
II.
Background
A.
The Elite Defendants' and Desai's Requests for Leave
to File a Motion
On May
24, 2019, the Elite Defendants requested leave to file a
motion to disqualify Miller, Canfield, Paddock and Stone, PLC
(“Miller Canfield”) and Katten Muchin Rosenman
LLP (“Katten”) as counsel for State Farm and to
exclude any evidence obtained by Miller Canfield from
unethical or improper use or disclosure of secrets or client
confidences of its client, Joshua Katke. (DE 488.) The Elite
Defendants assert State Farm's counsel should be
disqualified and evidence obtained as the result of Miller
Canfield's attorney-client relationship with Katke should
be excluded because: (1) the Michigan Rules of Professional
Conduct Rule 1.6 prohibits an attorney from revealing
confidences or secrets to the disadvantage of the client or
the advantage of the attorney or a third party; and (2) the
Sixth Circuit test for disqualification of counsel is
satisfied. (Id.) On June 11, 2019, Defendant Chintan
Desai, M.D. filed a letter joining the Elite Defendants'
request, concurring in the reasoning set forth by the Elite
Defendants. (DE 501.)
B.
Katten's and Miller Canfield's Responses
State
Farm contends the Defendants' request for leave should be
denied because: (1) Miller Canfield did not reveal
confidential information to Katten or State Farm that arose
out of Miller Canfield's relationship with Katke; (2) the
Elite Defendants lack standing to move to disqualify Miller
Canfield and Katten because they have never been clients of
either firm; and (3) courts should hesitate to employ the
drastic measure of attorney disqualification because such
motions can be used as a harassment technique. (DE 490.)
Miller Canfield maintains that it has not used or revealed to
Katten or State Farm any confidential information relating to
Miller Canfield's representation of Katke. (DE 492.)
III.
Discussion
The
Elite Defendants and Desai lack standing to file a motion to
disqualify Miller Canfield and Katten as counsel for State
Farm and to exclude evidence obtained as a result of Miller
Canfield's potential disclosure of client confidences
because they do not have, and have never had, an
attorney-client relationship with Miller Canfield or Katten.
A.
Motions to Disqualify are Highly Disfavored
Motions
to disqualify counsel are highly disfavored and
“disqualification is considered a drastic measure which
courts should hesitate to impose except when absolutely
necessary.” Glenn v. Nasscond, Inc., No.
15-10270, 2016 WL 409409 at *2 (E.D. Mich. Feb. 3, 2016)
(quoting Valley-Vulcan Mold Co. v. Ampco-Pittsburgh
Corp., 237 B.R. 322, 337 (B.A.P. 6th Cir. 1999)). Courts
should review motions to disqualify counsel with
“extreme caution because it can easily be misused as a
harassment technique.” Howard v. Wilkes &
McHugh, P.A., No. 06-2833-JPM, 2007 WL 4370585 at *6
(W.D. Tenn. Dec. 3, 2007); see also Courser v.
Allard, No. 1:16-CV-1108, 2016 WL 10520134 at *1 (W.D.
Mich. Nov. 28, 2016) (stating that these motions are
“viewed with disfavor” and disqualification is an
extreme sanction that could be used as a “potent
weapon” or a “harassment technique”).
Last
month, State Farm sought leave to compel the deposition of
Joshua Katke via letter request (DE 445), who, in turn, took
the position that he has been a client of Miller Canfield,
and that a conflict of interest between Miller Canfield's
representation of both Katke and State Farm made the pursuit
of his deposition objectionable. (DE 447.) Neither Desai nor
the Elite Defendants filed a written response to State
Farm's letter request, although, during a subsequent
telephonic status conference held on May 16, 2019, the Elite
Defendants did suggest that they could somehow knock
both of Plaintiff's law firms off of the case
because of Miller Canfield's supposed representation of
Katke. State Farm subsequently withdrew its letter request to
compel Katke's deposition (DE 480), thereby rendering the
request moot. These more recent requests by the Elite
Defendants and Desai do give the impression of opportunism by
parties (who are not represented by Miller Canfield) to
exploit a potential conflict not pursued by Miller
Canfield's ostensible client (Katke, a non-party) as a
“potential weapon” or “harassment
technique” to deprive State Farm of not just its local
counsel (Miller Canfield) but of its lead counsel (Katten),
rendering the continued prosecution of this case either
exceedingly difficult or downright impossible at this
...