Case 1:08-cv-00242-HTW-LRA Document 158 Filed 12/06/10 Page 1 of 9

I THE UITED STATES DISTRICT COURT

FOR THE SOUTHER DISTRICT OF MISSISSIPPI
SOUTHER DIVISIO

UITED STATES FIDELITY AD

GUARATY COMPAY and FIDELITY PLAITIFFS
GUARATY ISURACE
UDERWRITERS, IC.

v. o. 1:08cv0242-HTW-LRA

THE PEOPLES BAK, BILOXI,

MISSISSIPPI, PAUL S. MIOR, MIOR
AD ASSOCIATES, P.A., and WALTER DEFEDATS
W. TEEL

SUPPLEMETAL BRIEF I OPPOSITIO TO

PLAITIFF’S MOTIO TO DISQUALIFY COUSEL FOR PAUL S. MIOR

COME NOW Interested Party Oliver E. Diaz, Jr., being joined by Defendants Paul S.

Minor and Minor & Associates, P.A., who had previously joined in the Response to the Motion

to Disqualify filed by Oliver E. Diaz, Jr. [142], and offer this Supplemental Brief in Opposition to

the Plaintiff’s Motion to Disqualify Counsel for Paul S. Minor.

After a hearing of the Plaintiff’s Motion to Disqualify Counsel for Paul S. Minor on

November 17, 2010, the Court asked those involved to brief a single issue: what is a “necessary

witness” under Mississippi Rule of Professional Conduct 3.7(a)?

Because Justice Diaz is not a “necessary witness” under the predominant test adopted by

federal and state courts, and because USF&G relies on discredited “scuttlebutt” to argue their

case, he cannot be disqualified.

BURDE OF PROOF

In a case involving Rule 3.7, “Plaintiffs have the burden to establish the grounds for

disqualification.” Religious Technology Center v. F.A.C.T."et, Inc., 945 F.Supp. 1470,

1473 (D.Colo. 1996). Contrary to USF&G’s bare suggestion that counsel should be

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automatically disqualified when the argument is raised, “Courts require parties seeking

disqualification of counsel to meet a high standard of proof before disqualification may be

granted . . . and ‘mere speculations will not suffice.’” Paramount Communications, Inc. v.

Donaghy, 858 F.Supp. 391, 394 (S.D.N.Y. 1994) (internal quotations and citations omitted).

There is a reason for this caution: “ Disqualification motions premised upon the

advocate-witness rule are subjected to strict scrutiny because of the ‘strong potential for abuse’

when a lawyer invokes the need to call opposing counsel as a witness and then acts to disqualify

him as counsel.” Id. (internal citations omitted).

“Also, the party moving for disqualification must show that the opposing lawyer’s dual

roles as attorney and witness will cause the moving party actual prejudice.” In re Sandoval, 308

S.W.3d 31, 34 (Tex.App.-San. An. 2009) (internal citations omitted). “Without these limitations,

the rule could be improperly employed ‘as a tactical weapon to deprive the opposing party of the

right to be represented by the lawyer of his or her choice.’” Id. (internal citations omitted).

I. A Lawyer Is Only a ecessary Witness When Relevant Evidence Cannot Be

Obtained from Any Another Source.

Because Rule 3.7 does not define the term, the Court must fashion a test in order to

determine if Justice Diaz is a “necessary witness.” Other district courts and state appellate courts

have paved the way.

One widely used test is that “a lawyer is a ‘necessary’ witness if his or her testimony is

relevant, material and unobtainable elsewhere.” World Youth Day, Inc. v. Famous Artists

Merchandising Exchange, Inc., 866 F.Supp. 1297, 1302 (D.Colo. 1994); Religious Technology

Center v. F.A.C.T."et, Inc., 945 F.Supp. 1470, 1474 (D.Colo. 1996); State v. Van Dyck, 827

A.2d 192, 194 (N.H. 2003).

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One Ohio appellate court explained the general acceptance of the test: “the American

Bar Association, in drafting Rule 3.7, has indicated that the necessity requirement is met when it

is demonstrated that ‘the proposed testimony is relevant, material, and unobtainable elsewhere.’”

Brown v. Spectrum "etworks, Inc., 904 N.E.2d 576, 580-81 (Ohio App. 1 Dist. 2008).

The Supreme Court of Nebraska has grouped the test into two factors, where “[a] party

seeking to call opposing counsel can prove that counsel is a necessary witness by showing that

(1) the proposed testimony is material and relevant to the determination of the issues being

litigated and (2) the evidence is unobtainable elsewhere.” Beller v. Crow, 742 N.W.2d 230,

235 (Neb. 2007); accord Mettler v. Mettler, 928 A.2d 631, 633-34 (Conn. Super. 2007) (“There

is a dual test for ‘necessity’ . . . First the proposed testimony must be relevant and material,” and

“Second, it must be unobtainable elsewhere”) (internal citations omitted); Merrill Lynch

Business Financial Services, Inc. v. "udell, 239 F.Supp.2d 1170, 1173 (D.Colo. 2003) (“A

lawyer is likely to be a necessary witness where the proposed testimony is relevant, material, not

merely cumulative, and unobtainable elsewhere”); Carta ex rel. Estate of Carta v. Lumbermens

Mut. Cas. Co., 419 F.Supp.2d 23, 29 (D.Mass. 2006) (same).

This Honorable Court should apply the test to the facts at hand, and only disqualify

Justice Diaz from the representation of Paul Minor if his proposed testimony meets the dual test

of being both relevant, material, and unobtainable from any other source.

II. USF&G Has Failed to Show That Justice Diaz Has Relevant or Material
Testimony.

USF&G has failed to supply any affidavit from any witness linking Justice Diaz to this

matter. To make its case, USF&G makes a quantum leap from a hearsay testimony from a

discredited witness in the criminal trial of Paul Minor.

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As one New York district court held, “‘mere speculations will not suffice’” in a Motion

to Disqualify. Donaghy, 858 F.Supp. at 394. In this case, all USF&G has is pure speculation—a

discredited rumor from a discredited alcoholic witness with a reputation for dishonesty.

The primary thrust of USF&G’s Motion to Disqualify is that former Chancellor J.N.

Randall testified at the first criminal trial of Paul Minor that he heard a courthouse rumor that

Judge Teel had information about a pending Mississippi Supreme Court case. From that bare

rumor, USF&G carefully excerpted from trial testimony to attempt to snare Justice Diaz.

Indeed, an examination of the record in the criminal trial reveals that the hearsay at trial

was dispelled under cross-examination. First, J.N. Randall was characterized by his own court

reporter, Ms. Kay Larson, as a person who would talk “out of both sides of his mouth,” and that

she did not trust him. See Excerpts from the Transcript of U.S. v. Minor, Testimony of Kay

Larson, attached as Exhibit “A,” at 6407, 6412-13. Judge Randall took off every Monday and

Friday and took off further time so he could go fishing. At 6411. Judge Randall also told his

court reporter that he was an alcoholic and had been regularly using prescription drugs while he

was on the bench. At 6423-24.

Testimony of others aside, Judge Randall actually self-identified as an alcoholic and

depressive. See Excerpts from the Transcript of U.S. v. Minor, Testimony of J.". Randall, at

3339, 3943, 3947, attached as Exhibit “B.” There was testimony that Randall was also abusing

cocaine and “could hardly hold papers [because] his hands shook really bad.” See Excerpts from

the Transcript of U.S. v. Minor, Testimony of Channing Powell, attached as Exhibit “C,” at

6825-26.

During the criminal trial counsel for the defendants raised the strong presumption that

anything Randall related about the Omnibank case was hearsay. Because of this concern, the

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Bench questioned Randall, who admitted that he knew nothing about Justice Diaz or what he had

or had not done. In reference to the hearsay relied upon by USF&G in filing its Motion to

Disqualify, the following colloquy took place:

THE COURT: All right. In your grand jury testimony, you mentioned some
scuttlebutt concerning Justice Diaz.
...

Now, the source of this information, do you recall who that was?

THE WITNESS: No. No, Your Honor. I don’t have—as far as Justice Diaz is
concerned, I don’t have any independent knowledge of anything dealing with
that one as far as he is concerned. That was just some scuttlebutt around the
courthouse. And I—really and truly, I didn’t put a whole lot of faith in it.

Exhibit B, at 3474-75 (emphasis added). So under questioning from Judge Wingate, Randall

disclaimed any prior statement as a rumor which not even he believed.

The Court then admonished the witness that any second-hand rumors or scuttlebutt would

be hearsay, and therefore wholly inadmissible. At 3476. Randall then said if he had anything to

say about Justice Diaz, it would only be “good.” At 3476-77.

USF&G has not only ignored the fact that Randall disowned his grand jury testimony,

they are attempting to elevate this unsubstantiated courthouse scuttlebutt to warrant Justice Diaz’

disqualification from this case.

Despite Judge Randall’s well-documented difficulties, he recognized that any tale about

Justice Diaz was just that: fiction. Even Randall recognized that at the time, and “didn’t put a

whole lot of faith in it.” It was simply rumors he had told to the grand jury. At 3475. He even

admitted that after getting sober his “memory is a lot better now,” and that his testimony was

clearer than it was when he was before the grand jury. At 3542.1

1
Indeed, Judge Randall agreed at trial that USF&G “were big boys and they knew what they were doing” when they
settled the underlying civil case. Ex. B at 3568. He stated that “[a] judge has a lot of power, but they can’t make
you settle cases.” Ex. B at 3568.

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Yet USF&G cannot make the same simple distinction between scuttlebutt hearsay and

material information that even Randall could, and that certainly the Court made in the first

criminal trial. USF&G has only offered a discredited and recanted rumor from a discredited

witness that Justice Diaz has any relevant or material evidence. Further, as highlighted in the

hearing before this Court, it was pointed out that Justice Diaz did not testify at the first trial or

the second trial of Mr. Minor and Judge Teel, and any information he may or may not have was

not necessary to convict the men under the high burden of proof in criminal cases.

Because USF&G’s reliance on discredited scuttlebutt is not enough to meet the high

burden of disqualification, the Motion to Disqualify must be denied.

III. The Information Sought Is Obtainable from Other Sources.

To the extent USF&G seeks any information from Justice Diaz that is not subject to the

utter and absolute privilege accorded to a judge’s mental processes, see his Response [142], the

information is obtainable from other sources. Nor has USF&G made any effort to obtain any

depositions, affidavits, or sworn testimony to meet their initial burden that Justice Diaz has

unique information.

Courts have placed great emphasis on the uniqueness of the information in the attorney’s

possession. “An attorney is a necessary witness, under this rule, where no other person can

testify in the place of the attorney.” "orthbrook Digital, LLC v. Vendio Services, Inc., 625

F.Supp.2d 728, 765 (D.Minn. 2008) (emphasis added). “[I]f the evidence sought to be elicited

from the attorney-witness can be produced in some other effective way, it may be that the

attorney is not necessary as a witness.” Van Dyck, 827 A.2d at 194.

As the Fifth Circuit has ruled, “[a] lawyer is not likely to be a necessary witness when

evidence pertaining to each matter to which he could testify is available from another source.”

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U.S. v. Starnes, 157 Fed.Appx. 687, 693-94 (5th Cir. 2005) (internal citation and quotation

omitted); Horaist v. Doctor’s Hosp. of Opelousas, 255 F.3d 261, 267 (5th Cir. 2001) (when a

witness’ testimony was cumulative, he was “not a necessary witness,” and no prejudice was

shown).

As the Eighth Circuit has held, “[t]estimony may be relevant and even highly useful, but

still not strictly necessary,” because only in rare circumstances are there “things to which he will

be the only one available to testify.” Macheca Transport Co. v. Philadelphia Indem. Co., 463

F.3d 827, 833 (8th Cir. 2006) (emphasis added).

This situation is not one of the rare occurrences where only the lawyer has material and

relevant information. USF&G’s Motion is built on discredited hearsay scuttlebutt by R.N.

Randall, statements which he later disclaimed on cross-examination. It is a quantum leap to say

that Justice Diaz should even comment on the rumor, let alone that he is the one person who can

testify regarding it. The information sought, if it even exists, is available from other sources.

COCLUSIO

Over a century of precedent forbids Justice Diaz from testifying in this case. The Court

should adopt a dual test which examines whether the information sought is both material and

relevant and unobtainable from another source. Because Justice Diaz does not have material or

relevant information, he cannot be disqualified. Because the information sought can be obtained

from other sources, he cannot be disqualified. Accordingly, USF&G’s Motion must be denied.

Respectfully submitted, this the 6th day of December, 2010,

O BEHALF OF OLIVER E. DIAZ, JR.

_/s/ David "eil McCarty_

DAVID NEIL McCARTY
Miss. Bar No. 101620
DAVID NEIL MCCARTY LAW FIRM, PLLC

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416 East Amite Street

Jackson, Miss. 39201
T: 601.874.0721
F: 866.236.7731
E: dnmlaw@gmail.com

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CERTIFICATE OF SERVICE

I, David Neil McCarty, counsel for Oliver E. Diaz, Jr., do hereby certify that I have this
date electronically filed the foregoing pleading with the Clerk of the Court and served a copy of
the foregoing pleading electronically to ECF participants and via U.S. Mail upon non-
participants at their address of record.

O. Stephen Montagnet, III

W. Thomas McRaney, III
Neil J. Diloff
McCraney Montagnet & Quin, PLLC

Robert C. Galloway
DLA Piper US, LLP

Amanda B. Barbour
James B. Tucker
Butler Snow O’Mara Stevens & Cannada, PLLC

Hiram C. Eastland, Jr.

Oliver E. Diaz, Jr.

Walter W. Teel
Inmate No. 07702-043
Federal Prison Camp
U.S. Penitentiary
Post Office Box 150160
Atlanta, GA 30315

This the 6th day of December, 2010.

_/s/ David "eil McCarty_

DAVID NEIL McCARTY

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