United States District Court, D. Nevada
Hoffman, Jr. United States Magistrate Judge
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. 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.
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
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. 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.)
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.
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.
Exclusion of Witnesses
615 of the Federal Rules of Evidence deals with excluding or
[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 ...