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Blackhawk Land and Resources, LLC v. Wwmv, LLC

United States District Court, S.D. West Virginia, Charleston

February 27, 2018

BLACKHAWK LAND AND RESOURCES, LLC and PANTHER CREEK MINING, LLC, Plaintiffs/Counterdefendants,
v.
WWMV, LLC and RWMV, LLC, Defendants/Counterclaimants.

          MEMORANDUM OPINION AND ORDER

          John T. Copenhaver, Jr., United States District Judge

         Pending before the court is the plaintiffs' motion to disqualify defendants' counsel Shawn George, including a request for a protective order to that end, filed on December 12, 2017. Defendants have responded in opposition, and the court held a hearing on the matter on December 22, 2017.

         Plaintiffs move to disqualify Shawn George as counsel for the defendants because he took part in the settlement negotiations between the parties leading to, and including, the settlement of claims between them that the defendants allege took place. According to plaintiffs, such role makes Mr. George a necessary witness, because the alleged settlement is asserted as a defense by the defendants to the breach of contract claims at issue, and this settlement is in dispute. Plaintiffs believe that Mr. George's connection to the defendants as one who has an ownership interest is also material. Along with the disqualification, plaintiffs seek a protective order to prevent Mr. George from taking depositions.

         In his capacity as counsel for the defendants, Mr. George participated in a meeting with representatives of Blackhawk Mining on August 22, 2016, along with Ralph Ballard, the manager of RWMV, which manages WWMV, and E. Forrest Jones, Jr. whose affiliation is not entirely clear to the court at this juncture. In their discovery response, sent on November 6, 2017, defendants discussed this meeting, the alleged settlement, and subsequent communications between Mr. George and Blackhawk representatives. Defendants also identified every person present at the meeting, including Mr. George, as individuals with knowledge concerning the allegations in the plaintiffs' complaint and the defenses thereto.

         Defendants object to the timing of the motion as “retaliatory” to their deposition attempts and argue that the plaintiffs seek to smooth their path to summary judgment in their favor. Furthermore, they contend that plaintiffs cannot satisfy the legal standard for disqualification under Smithson v. United States Fidelity & Guaranty Co., 411 S.E.2d 850 ( W.Va. 1991).

         At the hearing, the defendants maintained that Mr. Ballard, present at the meeting in question, would be made available for deposition, and all parties appeared to agree that the e-mail communications to and from Mr. George, pertaining to the alleged settlement, would likely be admissible in court.

         A. Standard for Disqualification

         Local Rule of Civil Procedure 83.7 provides that “attorneys shall conduct themselves in accordance with the Rules of Professional Conduct and the Standards of Professional Conduct promulgated and adopted by the Supreme Court of Appeals of West Virginia, and the Model Rules of Professional Conduct published by the American Bar Association.” L.R. Civ. P. 83.7.

         West Virginia Rules of Professional Conduct, Rule 3.7 provides that:

(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where:
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal services rendered in the case; or
(3) disqualification of the lawyer would work substantial hardship ...

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