Heard v. Statue Cruises LLC

Background

David Heard, who is disabled and uses a wheelchair, sued Statue Cruises LLC under the Americans with Disabilities Act and related laws. He alleged that the company’s ferries, gangplanks, and restrooms were not fully accessible. This order addressed only Statue Cruises’ motion to disqualify Heard’s counsel; it did not decide the underlying accessibility claims.

Heard’s attorneys were associated with Wachtel & Missry, LLP. Before the lawsuit, the firm had a longstanding professional relationship with McLaren Engineering Group, which had worked on matters for firm clients. Shea Thorvaldsen, a marine engineer who had worked at McLaren, also had a longstanding relationship with the firm.

After the lawsuit began, Statue Cruises retained Malcolm G. McLaren as an expert witness. Thorvaldsen was still employed by McLaren at the beginning of that engagement and assisted McLaren for 14 hours over approximately one month in late 2017. The record showed that Thorvaldsen joined McLaren and Statue Cruises’ representatives during a vessel inspection, participated in discussions about the litigation and possible defenses, and was included in some communications. Thorvaldsen left McLaren in March 2018.

Between November 2018 and February 2019, attorneys William B. Wachtel and Sara Spiegelman communicated with Thorvaldsen. The attorneys said they did not know that he had assisted with McLaren’s expert work for Statue Cruises and that he did not disclose Statue Cruises’ legal theories, work product, or communications with its attorneys. Thorvaldsen likewise said he did not recall communicating with Statue Cruises’ attorneys and denied disclosing such information.

At a March 5, 2019 hearing about discovery, Wachtel disclosed that he had obtained information from Thorvaldsen about McLaren’s earlier engineering proposals concerning Statue Cruises. After learning that Thorvaldsen had worked on McLaren’s expert engagement in the case, Wachtel withdrew Heard’s plan to call Thorvaldsen as a trial witness. The court ordered that Thorvaldsen would not testify. Statue Cruises then moved to disqualify the Wachtel Firm or, alternatively, to bar attorneys who had contacted Thorvaldsen from participating in the case.

Legal standard

Federal courts have inherent authority to disqualify attorneys to protect the integrity of the adversarial process. Disqualification is a drastic remedy and can interfere with a party’s choice of counsel, so the moving party carries a heavy burden. Ethical-rule violations do not automatically require disqualification. The relevant concern is whether the conduct creates a significant risk that the trial will be tainted by the use of confidential or privileged information.

Analysis

The court concluded that the record did not establish that Heard’s attorneys violated Federal Rule of Civil Procedure 26(b)(4) or the cited American Bar Association guidance concerning communications with an opposing expert. The communications were with Thorvaldsen, not McLaren, and occurred after Thorvaldsen had left McLaren. The court accepted that Thorvaldsen assisted McLaren early in the expert engagement but found no evidence that Wachtel or Spiegelman knew of that work until the March 5 hearing.

The court also found that the record did not support a violation of New York Rule of Professional Conduct 4.4(a). Although Thorvaldsen remained subject to confidentiality obligations, the court was not persuaded that he disclosed confidential or privileged information or that Heard’s attorneys intentionally induced him to do so.

Even assuming a violation of the discovery or ethics rules, the court held that Statue Cruises had not shown a significant risk of trial taint. Statue Cruises did not identify specific confidential or privileged information given to Thorvaldsen and then shared with Heard’s attorneys. The court found that facts learned during the vessel inspection were discoverable facts considered by the expert, and that general discussions about claims and defenses were too nonspecific to establish protected information. The only specific issue identified was the feasibility of a folding gangway, but Statue Cruises did not show that Thorvaldsen shared confidential information about that issue with Heard’s attorneys.

The court also rejected Statue Cruises’ argument that Heard’s later discussion of a folding gangway proved that confidential information had been disclosed. The argument was unsupported by evidence in the record. Any risk arising from calling Thorvaldsen as a witness had already been addressed by the court’s order barring him from testifying.

Disposition

The court denied Statue Cruises’ motion to disqualify some or all of Heard’s attorneys. The parties were ordered to bear their own costs and fees. The court declined to consider Statue Cruises’ request for monetary sanctions because it was raised for the first time in a reply brief and, in any event, Statue Cruises had not prevailed on the disqualification motion. The parties were directed to submit a joint letter proposing a schedule for summary-judgment pre-motion letters and/or a joint pretrial order.