Counsel Concerns

District Judge Andrew L. Carter noted: 'The fact that, at the time he was deposed, Craft was a non-party witness whose interests were ostensibly not at issue, does not render this conclusion [that he thought Talcott was representing him] unreasonable, given his age and general unfamiliarity with the deposition process. Thus, an attorney-client relationship was established for the purposes of a disqualification motion.' The district judge went on to note, 'As much as Plaintiff tries to distinguish this case as not substantially related to the copyright dispute with the Codigo Parties and Clyde Otis, the significance of Craft's deposition testimony is readily apparent.'

Without formally ruling that Craft had shared confidential information with Talcott, Judge Carter emphasized he 'cannot risk the chance of Talcott's unconscious impressions might be influenced by Craft's confidential information.'

The court ultimately concluded: 'Given the extreme nature of the disqualification sanction, the Court regrettably finds that disqualification is total and Talcott cannot represent TufAmerica even in its dispute against Codigo and Otis. Were it at all feasible to bifurcate the claims in the complaint, the Court would opt to do so. Here, however, the claims are inextricably tied.'

Naming Non-Party Witness as Defendant Leads to Disqualification of Copyright Plaintiff's Counsel

The U.S. District Court for the Southern District of New York granted a motion to disqualify a plaintiff's attorney who, during a deposition, represented a non-party witness later named a defendant in the case. TufAmerica Inc. v. Codigo Music LLC, 11 Civ. 1434.

The litigation involves an ownership dispute over rights to 'Hippy Skippy Moon Strut,' which was sampled in Christina Aguilera's hit 'Ain't No Other Man.' TufAmerica sued the Codigo music companies claiming that it obtained exclusive rights from Morton Craft in 2004. TufAmerica's counsel Kelly Talcott then prepared the 91-year-old Craft for, and sat with him during, his deposition. After Craft testified he had given TufAmerica only limited rights, TufAmerica amended its complaint to add Craft as a defendant. Craft's defense counsel, Peter Salzler, filed a motion to disqualify Talcott from the case.

District Judge Andrew L. Carter noted: 'The fact that, at the time he was deposed, Craft was a non-party witness whose interests were ostensibly not at issue, does not render this conclusion [that he thought Talcott was representing him] unreasonable, given his age and general unfamiliarity with the deposition process. Thus, an attorney-client relationship was established for the purposes of a disqualification motion.' The district judge went on to note, 'As much as Plaintiff tries to distinguish this case as not substantially related to the copyright dispute with the Codigo Parties and Clyde Otis, the significance of Craft's deposition testimony is readily apparent.'

Without formally ruling that Craft had shared confidential information with Talcott, Judge Carter emphasized he 'cannot risk the chance of Talcott's unconscious impressions might be influenced by Craft's confidential information.'

The court ultimately concluded: 'Given the extreme nature of the disqualification sanction, the Court regrettably finds that disqualification is total and Talcott cannot represent TufAmerica even in its dispute against Codigo and Otis. Were it at all feasible to bifurcate the claims in the complaint, the Court would opt to do so. Here, however, the claims are inextricably tied.'