United States District Court, E.D. Wisconsin
WILLIAM E. DUFFIN U.S. Magistrate Judge
before the court is plaintiff Empire Medical Review Services,
Inc.'s ("EMRS") Civil L.R. 7(h) Expedited
Non-Dispositive Motion for an order allowing EMRS to divide
its questioning of witnesses among its separately-retained
attorneys. (ECF No. 91). Defendant CompuClaim, Inc. opposes
the motion. (ECF No. 96).
views this case as a complex intersection of contract, tort,
and intellectual property law. It has retained separate
counsel to specialize on certain issues. Pendleton Legal S.C.
represents EMRS on the claims in its amended complaint.
Andrus Intellectual Property Law, LLP represents EMRS on the
intellectual property aspects of its amended claims. Once
counterclaims were asserted against EMRS, its insurers hired
Kasdorf, Lewis, & Swietlik S.C. and Boyle Fredrickson S.C. to
represent EMRS in defense of the counterclaims only.
parties initially agreed that multiple attorneys representing
EMRS would be allowed to ask questions at depositions of the
defendant's witnesses. Specifically, they agreed that
attorneys Robert Lauer, Alexander Pendleton, and
James F. Boyle would be allowed to question Jeffrey Berg at
his deposition, with the understanding that the lawyers would
not ask overlapping questions. (ECF No. 92-1, pg. 2, Ex. 1).
during the deposition of Scott Strommen, counsel for
CompuClaim expressed his view that the EMRS attorneys were,
indeed, asking overlapping questions. CompuClaim withdrew its
consent to EMRS dividing its questioning among multiple
attorneys. The parties have since conferred on the issue but
have been unable to reach an agreement regarding the
questioning of future CompuClaim witnesses at depositions,
resulting in EMRS filing the motion now before the court.
argues that, without the relief it seeks, one EMRS attorney
would have to cover issues that fall under other
attorneys' scope of representation. It argues that the
attorneys may have different objectives, giving rise to the
potential for a conflict. It also argues that scripted
questions from another lawyer handling a separate aspect of
the case are "highly ineffective for obtaining clear
testimony." (ECF No. 91 at pg. 3).
points to General Local Rule 43, which sets the standard
practice in this district: "[u]nless otherwise ordered,
one attorney for each party may examine or cross examine a
witness." It then cites seven instances from the
Strommen and Berg depositions in which the attorneys asked
overlapping questions. It identifies what it characterizes as
several "significant advantages" that arise from
giving multiple lawyers an opportunity to examine witnesses.
Finally, it argues that examination by more than one attorney
is both oppressive and harassing.
Local Rule 43 places discretion squarely on the shoulders of
the presiding court. ("Unless otherwise
ordered, one attorney for each party may examine or
cross examine a witness.") (emphasis added). This case,
though at bottom a contract dispute, involves software coding
and allegations on both sides of copyright infringement and
Digital Millennium Copyright Act violations. Such claims can
have complex contours. EMRS has found the need to retain
separate counsel to tackle such issues.
examples of overlapping questioning do not show egregious
conduct on the part of EMRS's attorneys. Cleanly splicing
certain topics from others can be difficult even when one
attorney is asking all of the questions. Some degree of
overlap in questioning is often unavoidable. It appears that
EMRS's lawyers genuinely tried to do as promised and
avoid asking overlapping questions.
said that, General Local Rule 43 establishes the normal
practice in this district, which is that one attorney per
side will be allowed to examine or cross-examine a witness.
Multiple lawyers for one party examining or cross-examining a
witness is exceptional. Whereas CompuClaim has cited several
cases where courts have denied relief similar to that sought
by EMRS, EMRS has not directed this court to any decision
where a court granted a party the relief EMRS seeks.
EMRS's explanations for why such relief is necessary here
are not particularly compelling. Many cases filed in federal
court are complicated, involving a variety of claims and
counterclaims consisting of assorted legal issues, including
intellectual property issues. EMRS does not explain why this
case is so different as to warrant straying from the normal
practice of one lawyer per witness. Certainly the fact that
its insurer has chosen to hire separate counsel to represent
it on the counterclaims is not sufficient. Although EMRS
argues that there is the potential for a conflict between the
attorneys' objectives, it does not point to any here.
addition, the court is sensitive to witnesses being
tag-teamed at a deposition by more than one lawyer for the
same party. When one lawyer runs out of steam (or questions),
another hops in the ring and continues the examination,
bringing a fresh perspective and a new list of questions.
While circumstances necessitating such a proceeding could
arise, EMRS has not demonstrated that this case ...