Savor Health, LLC v. Day

Background

Savor Health, LLC sued Andrea Day for allegedly misappropriating trade secrets and confidential information. Day filed counterclaims alleging that the lawsuit was retaliation for her engaging in protected activity. The opinion states that the parties had competing summary-judgment motions pending before District Judge Abrams, and that consideration of those motions had been stayed while the court addressed Savor’s request to disqualify Day’s attorney, Kerry Connolly.

Savor argued that Day’s retaliation theory had shifted from a claim involving an unpaid-wage complaint to a theory based on oral statements Connolly allegedly made to Savor’s former attorney, Evan White, before the lawsuit was filed. Savor therefore sought Connolly’s disqualification under the advocate-witness rule, which generally limits an attorney’s ability to act as trial counsel when the attorney is likely to testify about an important factual issue.

Legal Standard

The court explained that disqualification motions are viewed with disfavor and are examined strictly because they can be used for tactical purposes and can cause delay. Savor had to prove two things: first, that Connolly’s testimony would be necessary at trial; and second, that the testimony would be substantially likely to prejudice Day, Connolly’s client. The court emphasized that speculation was not enough.

Analysis

On necessity, the court noted that Day’s counterclaims identified several possible sources of evidence about Savor’s knowledge of protected activity, including Day’s own complaints about unpaid wages, Savor’s alleged litigation threats, and discussions and emails involving Connolly and White. The court also noted that Savor had submitted timesheets and emails involving those discussions. White’s possible testimony had not yet been established, so Connolly’s testimony might or might not be needed. In addition, if Savor prevailed on its pending motion for summary judgment concerning the retaliation claims, Connolly’s testimony would be irrelevant to those claims.

The court concluded that Connolly’s testimony was not strictly necessary at that stage. It characterized the case as too advanced for an immediate disqualification that would minimize prejudice to Day, but too early for disqualification based on speculation about whether Connolly would ultimately testify at trial.

On prejudice, the court found that Savor had not explained why Connolly’s possible testimony would conflict with or harm Day’s factual account. The court also stated that Day’s expressed desire to keep Connolly as her attorney strongly weighed against finding prejudice to Day.

Disposition

The court denied Savor’s letter motion to disqualify Kerry Connolly. The order did not decide the pending summary-judgment motions or the underlying misappropriation and retaliation claims. The parties were directed to confer and provide Judge Abrams with a proposed summary-judgment briefing schedule by April 17, 2023.