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McKenna v. Chesnoff

United States District Court, D. Nevada

February 23, 2017

MICHELLE MCKENNA, Plaintiff,
v.
DAVID Z. CHESNOFF, et al., Defendants.

          ORDER

          C.W. Hoffman, Jr. United States Magistrate Judge

         Presently before the court is Defendant David Z. Chesnoff, Chtd, P.C. d/b/a Chesnoff & Schonfeld's Emergency Motion to Exclude Ruth Cohen and Paul Padda From Depositions and Limited Disqualification (ECF No. 100), filed on February 12, 2017.[1] Non-parties Ruth L. Cohen, Esq. and Paul S. Padda, Esq. filed a response (ECF No. 103) on February 16, 2017. Defendant did not file a reply.

         Also before the court is Defendant's Emergency Motion for a Protective Order Excluding Ruth Cohen and Paul Padda From Each Others' Depositions and to Prevent Them From Reading Each Others' Transcripts (ECF No. 104), filed on February 21, 2017. Non-parties Cohen and Padda filed a response (ECF No. 105) on February 21, 2017. Defendant did not file a reply.

         I. BACKGROUND

         This is a legal-malpractice action in which Plaintiff Michelle McKenna sues attorneys David Chesnoff, Richard Schonfeld, and their law firm Chesnoff & Schonfeld for how they handled her personal injury action in Nevada state court. Attorneys Ruth Cohen and Paul Padda, who are not parties in this case, also represented Plaintiff in her personal injury action.[2] During discovery in this case, Defendants issued subpoenas for Ms. Cohen and Mr. Padda's depositions. (Emergency Mot. to Exclude Ruth Cohen & Paul Padda from Depos. & Limited Disqualification (ECF No. 100), Exs. 10-11.) On the date of Mr. Padda's deposition, he appeared with Ms. Cohen as his attorney. (Decl. of Sean D. Cooney (ECF No. 100-1) at ¶¶ 19-20.) Defendants objected to Ms. Cohen's presence at the deposition, and the parties initiated a telephonic discovery conference with the court. (Id.) The court heard the parties' arguments and invited Defendants to file a written motion if Defendants did not wish to proceed with Mr. Padda's deposition with Ms. Cohen present. It is the court's understanding that following the telephonic discovery conference, Defendants vacated Mr. Padda's deposition. (See Resp. by Non-Parties Ruth L. Cohen, Esq. & Paul S. Padda, Esq. (ECF No. 103) at 1.)

         Defendants now move for a protective order barring Ms. Cohen and Mr. Padda from attending each other's depositions, from reviewing each other's deposition transcripts, from discussing the depositions with anyone, and from representing each other at the depositions. Defendants argue that Federal Rule of Evidence 615 requires that witnesses be excluded from observing other witnesses' depositions and that an attorney-witness may not avoid exclusion on the grounds that the attorney represents the deponent. According to Defendants, there is good cause to issue a protective order because Ms. Cohen and Mr. Padda might collude to conform their testimony and that one's deposition testimony will, even subconsciously, influence the other's testimony. Defendants represent that if there is an award of damages against them in this case, they may bring a separate indemnity and contribution case against Ms. Cohen and Mr. Padda, thereby making Ms. Cohen and Mr. Padda personally interested in the outcome of this case and increasing the risk they will be influenced by each other. Defendants further argue that Nevada Rule of Professional Conduct 3.7 prohibits an attorney who is a witness from also acting as an advocate in the case.

         Ms. Cohen and Mr. Padda respond that Rule 30(c)(1) of the Federal Rules of Civil Procedure, which governs depositions, establishes that Federal Rule of Evidence 615 does not apply at depositions. They further respond that there is not good cause for a protective order because Defendants have not met their burden of setting forth specific facts demonstrating a need for protection. Regarding the ethical issue, they argue that Nevada Rule of Professional Conduct 3.7 concerns advocacy at trial, not advocacy in the pretrial stage. Finally, they argue that speculative conflicts of interest do not justify disqualification and that Defendants do not have standing to raise the issue.

         II. ANALYSIS

         A. Exclusion of Witnesses

         Rule 615 of the Federal Rules of Evidence deals with excluding or sequestering witnesses:

[a]t a party's request, the court must order witnesses excluded so that they cannot hear other witnesses' testimony. Or the court may do so on its own. But this rule does not authorize excluding:
(a) a party who is a natural person;
(b) an officer or employee of a party that is not a natural person, after being designated as the party's representative by its attorney;
(c) a person whose presence a party shows to be essential to presenting the party's ...

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