United States District Court, S.D. Mississippi, Northern Division
CARLTON W. REEVES UNITED STATES DISTRICT JUDGE
the Court are the plaintiff's motions to disqualify
counsel, to strike, and for sanctions. Docket Nos. 84 and 87.
The motions have been fully briefed and the Court is ready to
Factual and Procedural History
Burnett filed this action under 42 U.S.C. §§ 1983,
1985, and 1986 seeking redress for alleged violations of his
constitutional rights, in addition to supplemental state law
claims. Docket No. 1. Burnett named several defendants. Those
that are relevant to this motion are the State of Mississippi
through the Hinds County District Attorney's Office;
Hinds County, Mississippi through its Board of Supervisors;
the Hinds County Sheriff's Department and its Sheriff,
Tyrone Lewis, in his official and individual capacities.
earlier ruling the Court dismissed with prejudice all federal
claims against the District Attorney's Office due to
Eleventh Amendment Immunity. Burnett v. Hinds Cty. ex
rel. Bd. of Sup'rs, No. 3:14-CV-651-CWR-FKB, 2015 WL
5785562, at *4 (S.D.Miss. Sept. 11, 2015). The state law
claims against that defendant were dismissed without
prejudice “to [their] timely refiling in a state court
of competent jurisdiction.” Id. Those claims
have since been refiled in Hinds County Circuit Court. Docket
facts giving rise to this suit were explained in the earlier
decision, but essentially the harms for which Burnett seeks
redress stem from his 2010 arrest, indictment, and detention
for sexual battery, rape, kidnapping, and forced armed
carjacking. Burnett's most troubling claim is that the
District Attorney's Office knew of his innocence but
withheld exculpatory DNA evidence from his counsel, Greta
Harris, an assistant Hinds County public defender. This
caused Burnett to languish in jail for nearly three years
until the charges were dropped in 2013.
discovery in this suit, Burnett issued deposition subpoenas
for Harris-now an assistant district attorney with the Hinds
County District Attorney's Office-and her colleague,
Shaunte Washington, the ADA who prosecuted Burnett. Their
depositions were scheduled for November 29, 2016.
uncertain as to why she was summoned, contacted Jason Dare,
outside counsel for Hinds County, who informed her that he
did not represent the District Attorney's Office. He
directed her to Robert Sanders, counsel for the District
Attorney's Office in the related state case. Harris and
Dare discussed nothing about the substance of the case.
then called Sanders to notify him of her subpoena and inquire
as to how she should respond. Later that day, Sanders met
with Harris and Washington together, at which point he
explained the nature of the suit. During this meeting,
Washington recounted her prosecution of Burnett, but Harris
did not discuss her representation of him. Harris and
Washington met with Sanders once more on the day before the
deposition to discuss the ground rules of the deposition and
get advice on responding to questions. Sanders represented
them both, in their official capacities, at the depositions.
instant motions concern the scope of Harris'
conversations with Sanders, Dare, and Washington. Burnett
alleges that Harris breached the duty of confidentiality owed
to him, and that the others aided her in doing so. He
contends that a conflict of interest exists that warrants
disqualifying Sanders and Dare as counsel for their
respective clients, striking Hinds County and Sheriff
Lewis' answer, and sanctioning all of the attorneys
involved for misconduct. Harris remains adamant that at no time
did she discuss anything about her defense of Burnett with
Washington, Dare, or Sanders. In fact, she avers that she
“never discussed [her] defense of Mr. Burnette [sic]
with anyone other than Mr. Burnette [sic] and possibly other
employees of the public defender's office at the time of
the prosecution.” Docket No. 100, at 3.
Court's local rules compel attorneys to comply with the
Mississippi Rules of Professional Conduct, including Rules
1.6,  1.7,  1.8,  1.9,  and 1.11. See L.U.
Civ. R. 83.1. None of these Rules are implicated here.
Disclosure and Improper Use of Confidential
speaking, Rules 1.6, 1.8, and 1.9 prohibit an attorney from
disclosing a current or former client's confidential
information or using such information to the client's
main argument for urging disqualification is that there is an
irrebuttable presumption that Harris disclosed confidential
information to Sanders, Washington, and Dare regarding her
representation of Burnett. This argument is based on his
reading of In re Corrugated Container Antitrust
Litigation, 659 F.2d 1341, 1347 (5th Cir. 1981).
case, the Fifth Circuit held that when an attorney represents
a former client's adversary in a matter substantially
related to that former representation, there is a conclusive
presumption that the former client disclosed confidential
information to the attorney that could be used to the
client's disadvantage. 659 F.2d at 1347. It is also
presumed that the attorney disclosed the former client's
confidences to other attorneys in his or her firm.
Id. at 1346.
Container provides no support for Burnett. Harris is not
representing any party in this case; she is a witness. The
Court cannot presume that Harris disclosed Burnett's
confidences to the other attorneys.
is also no factual support demonstrating that Harris did so.
In fact, all evidence suggests the contrary. During
Washington's deposition she was asked whether Harris gave
her any insight into Burnett's criminal case after they
were subpoenaed for depositions. Docket No. 87-3, at 7.
Washington replied that “Harris did not recall the
case.” Id. And Harris has provided a sworn
statement avowing that she never discussed her defense of
Burnett with anyone other than Burnett, “and possibly
other employees of the public defender's office at the
time of the prosecution.” Docket No. 100, at 3.
Likewise, Dare's declaration explains that he “did
not discuss with Attorney Harris either (a) her
representation of Murphy Burnett in any criminal matters when