MRGO Update – April 29

Speaking of pellucid. The MRGO trial is starting to remind me of driving my kids to summer camp – He touched me… Did not… Yes, you did – you put your foot on my side… Did not – if I’d touched you, it would have felt like this… Waaaaaaa – he hit me.

Yesterday’s report introduced the Plaintiff’s motion to compel discovery of the calculations used by the USA’s witness Bruce Ebersol.

During the day, the USA filed it’s Did so…You did not…formally known as a Notice of Document Production

The United States provided those calculations to the Plaintiffs by electronic mail on April 27, 2009. Those materials are now being produced with Bates-stamped numbers…(emphasis added)

In that context a motion to strike seems literal and today Plaintiffs filed a… stop!…look what he’s done now…Motion to Strike Lay Witness Pete Luisa from Defendant’s Witness List

…In MRGO, the parties were obligated to update their witness list on the 20th day of each month “to facilitate regular and ongoing preparation for common liability issues trials.”  As such, the defendant United States has had over twenty-five (25) opportunities since the March 1, 2007…to identify Mr. Luisa prior to the filing of its final witness list…The first time the defendant identified Mr. Luisa was on the March 27, 2009 United States’s Final Witness List of Witnesses…

The subject matter for which Mr. Luisa was identified to address was “how the Corps determines its annual funding recommendations for projects such as the LPVHPP”…without any opportunity to depose the witness, Plaintiffs are suspect of the relevance of Mr. Luisa’s testimony to the matters at issue in this trial…

A related Motion to Expedite Hearing followed – right before thehe pulled my hair…she scratched me…action, the Motion to Disqualify Plaintiffs’ Counsel…and I’m not lying, you can see the marks:

…Within the last few days, the United States has become aware of a potential conflict of interest by one of the attorneys for Plaintiffs, Kea Sherman…Our preliminary investigation has revealed that Ms. Sherman previously represented Jefferson Parish in this case, as well as in substantially related cases that are part of the Katrina Canal Breaches Consolidated Litigation.

Additionally, the United States and Jefferson Parish are parties to a joint defense agreement, pursuant to which Ms. Sherman participated in at least one meeting where counsel for various defendants prepared a jointly-retained expert witness for his deposition the next day.

Ms. Sherman’s representation of Plaintiffs, coming on the heels of her representation of a party engaged in a joint defense with the United States, appears to constitute a violation of the Louisiana Rules of Professional Conduct which would appear to require her disqualification in this matter.

Moreover, under the applicable rules of professional conduct, Ms.Sherman’s conflict is imputed to her firm, the Andry Law Firm. Disqualification of Jonathan B. Andry, also a member of that firm, would appear to be required as well Subsequent to her work for Jefferson Parish, Ms. Sherman began working with the Andry Law Firm. (Jonathan B. Andry, of course, is one of Plaintiffs’ lead lawyers.) Ms. Sherman attended several depositions in this case as an attorney with Mr. Andry’s firm, representing Plaintiffs…

Also in furtherance of her representation of Plaintiffs, Ms. Sherman has been copied on several emails sent by other Plaintiffs’ counsel, including Mr. Andry and Joseph M. Bruno, another of Plaintiffs’ lead attorneys…

Further, the Court should hold an immediate hearing to determine the full extent of the ethical violations by Plaintiffs’ counsel, including whether Ms. Sherman’s interactions with them would require their disqualification, and to determine whether any additional relief is required to protect the rights of the United States and the sanctity of the judicial process…

Now, I’m thinking someone just got kicked out of camp and then I got to the first attached Exhibit, the Joint Defense and Cost Share Agreement between the USA and Jefferson Parish and discovered a key provision not included in the USA’s motion:

motion-to-disqualify-counsel-1usa-motion-to-disqualify-counsel-2When the parties expressly agree not to seek disqualification of an attorney…under any formal or informal rule…including, but not limited to, the Louisiana Rules of Professional Conduct, and then one does, it makes for a really long drive.

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