Monday, May 13, 2013

New Playbook Disqualification Decisions

The always watchful Bill Freivogel notes two recent disqualification decisions where assertions of playbook knowledge where integral to the arguments at hand. (We've covered playbook debates, discussions and decisions several times, see here and here.)
  • "Khani v. Ford Motor Co., 2013 Cal. App. LEXIS 320 (Cal. App. April 2, 2013).  Lawyer brought this action for the plaintiff under California's "lemon law."  Defendant moved to disqualify Lawyer because, between 2004 and 2007, Lawyer had represented Defendant in 150 lemon law cases.  The trial court granted the motion.  In this opinion the appellate court reversed.  In doing a playbook analysis the court felt that Defendant's evidence was 'bare-bones.'  Among other things, the court noted that this case involved a 2008 Lincoln Navigator and that Lawyer had not worked on any cases dealing with that vehicle.  The court also said that alleging that Lawyer's work for Defendant involved the same statute as that in this case was simply not enough to establish a substantial relationship." [Ed: See BNA for additional detail.]
  • "Childress v. Trans Union, LLC, 2013 U.S. Dist. LEXIS 61360 (S.D. Ind. April 30, 2013).  The plaintiff's lawyer ("Lawyer") in this FCRA case previously represented the defendant in defending cases under the same provisions of that act.  Lawyer billed more than 4,200 hours in defending 250 such cases.  In a fact-intensive analysis the magistrate judge granted the defendant's motion to disqualify Lawyer.  In this opinion the district judge affirmed.  The opinion contains an interesting discussion of application of Indiana's Rule 1.9 and 'federal common law.'  Among other things, the court held that Comment [2] to Indiana's Rule 1.9 is not inconsistent with disqualification in this case.  (Indiana's Rule 1.9 and Comment [2] appear to be identical to MR 1.9 and its Comment [2].)"

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