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Oblinger v. Donegal Group, Inc.

United States District Court, S.D. Ohio, Western Division

August 20, 2019

CAROLE OBLINGER, et al., Plaintiffs
v.
DONEGAL GROUP INC. dba DONEGAL, et al., Defendants.

          MEMORANDUM ORDER

          Stephanie K. Bowman United States Magistrate Judge

         This civil action is now before the Court on Defendant Donegal Group Inc.'s (Donegal) motion to compel the deposition of Plaintiff's attorney Don Moore and Plaintiff's motion to quash subpoena and for protective order.

         I. Background and Facts

          Plaintiff Carole Oblinger suffered catastrophic injuries in an automobile accident which occurred on December 21, 2015. (Doc. 1, ¶¶ 7-15). Among other things, Ms. Oblinger suffered a traumatic brain injury which has and will continue to have a serious impact upon her for the rest of her life. Id. After resolving their claim with the tortfeasor's insurer, Plaintiffs sought compensation from Defendants Donegal and ASIC pursuant to contracts for automobile insurance which provided Plaintiffs with underinsured motorist coverage. Id. at 17-23. Plaintiffs allege that they have been attempting to obtain a good faith offer under the policy from Defendants for more than 13 months to no avail. As such, Plaintiff filed the instant action, asserting claims against Defendants Donegal and ASIC for both: (i) breach of contract; and (ii) bad faith.

         On April 30, 2019, the Court entered an Order denying Defendants' Motion to Dismiss and denying Defendants' Motion to Bifurcate the bad faith claim. (Doc. 25). On July 2, 2019, Defendants' counsel sent correspondence to attorney Moore advising that they believe he is a witness with regard to the bad faith claim and listing topics that they believe are areas where Attorney Moore has knowledge, including for example, “[t]he timing and content of your Demand letter;” and “[a]ll matters of your interaction with ASIC in the presentation of the claim[.]” On July 10, 2019, Defendants served, via process server, at Mr. Moore's office, a Subpoena to Attorney Moore, seeking to depose Attorney Moore regarding “[f]acts related to presentation of claim and bad-faith claim filed on behalf of Carole Oblinger[.]”

         ASIC seeks to depose Attorney Moore to inquire into the timing and substance of the settlement demand that Plaintiffs submitted to ASIC in connection with their claim for underinsurance motorists (“UIM”) benefits. Notably, Plaintiffs have alleged that ASIC acted in bad faith for taking too long to respond to Plaintiffs' settlement demand. Plaintiffs' claim that ASIC's allegedly “delayed” offer forced them to incur the expense of filing this lawsuit. Plaintiffs also contend that ASIC's offer was too low. In other words, Defendants argue they should be permitted to depose Attorney Moore regarding the timing and substance of the pre-suit written settlement demand submitted to Defendants on behalf of Plaintiffs because they want to present evidence at trial regarding Plaintiffs' delay in providing the demand and supporting information in defense to the bad faith claim.

         II. Analysis

         Defendants contend that Attorney Moore is the only witness who can testify about these issues, since he was the sole presenter of the claim. No other witness can explain why Plaintiffs delayed in submitting their settlement demand, agreed to a mediation date without objection, failed to provide complete information on the claims, and provided misleading or inaccurate information on the claims. As such, they argue that Moore is a necessary witness in this matter and the Court should compel Moore's deposition pursuant to Ohio Prof. Cond. R. 3.7

         In this regard, Defendant's assert that Courts have uniformly shared the legal profession's disapproval of the dual role of advocate-witness. United States v. Birdman, 602 F.2d 547, 553 (3rd Cir. 1979). Ohio state and federal cases addressing an attorney's disqualification under Ohio Rule Prof'l Conduct 3.7 have developed a standard to determine whether an attorney is a necessary witness. Ohio Prof. Cond. R. 3.7 provides as follows:

(a) A lawyer shall not act as an advocate at a trial in which the lawyer is likely to be a necessary witness unless one or more of the following applies:
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal services rendered in the case;
(3) the disqualification of the lawyer would work substantial hardship on the client.
(b) A lawyer may act as an advocate in a trial in which another lawyer in the lawyer's firm is likely to be called as a witness unless precluded ...

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